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HindustanTimes Tue,16 Sep 2014

2G: Court penalises Balwa for 'nefarious' conduct

PTI  New Delhi, May 30, 2014
First Published: 13:20 IST(30/5/2014) | Last Updated: 23:04 IST(30/5/2014)

Castigating Swan Telecom promoter Shahid Usman Balwa for his "nefarious conduct" and "sinister and reprehensible" act during recording of his statement in 2G spectrum allocation case trial, a special court on Friday imposed a cost of Rs. 1 lakh on him for wasting its time.

Special CBI judge OP Saini imposed the "nominal cost" on Balwa, facing trial in the 2G case, saying he had wasted time of the court and had also caused unnecessary inconvenience and adjournments on several occasions.

The court ordered that recording of Balwa's statement, which was halted after some objectionable contents were found in it, would resume and all the "objectionable part" shall be deemed to be deleted.

"Accordingly, considering their apologies on record, accused Shahid Usman Balwa is let off by castigating him for his nefarious conduct in the court accompanied by imposition of a nominal cost of Rs. 1,00,000 on him for wasting time of the court, causing unnecessary inconvenience and forcing unnecessary adjournments on the court for several days," the judge said in his 67-page order.

"In view of the above discussion, all four applications (filed by Balwa) stand disposed of with the direction that the existing statement(s) shall remain on record minus the objectionable parts, wherever the same occur, whether detected or not, which shall be deemed to be deleted and that further recording of the statement of accused shall resume from the stage where it was stopped," the court said.

"The cost be deposited within seven days from today, failing which warrant of attachment shall issue," it said.

The order came while disposing of four separate pleas filed by Balwa seeking to record his statement afresh and for tendering apology for the mistakes that had occurred in his statement which was partly recorded on May 7 and 8.

The court, in its order, said that it had supplied a draft questionnaire to all the accused and had allowed Balwa to use pen drive for answering the questions to facilitate recording of answers.

"Finding them (Balwa and his lawyer) insistent and rather adamant, it (answering of questions) was allowed through the use of pen drive. When an accused wishes to be rambling and ranting, and, if I may say so, rambunctious and rampageous and insists upon it, sometimes it has to be allowed, more so when the case is quite complicated having serious consequences to the accused, as the instant case is," the judge said.

On the issue of whether to record Balwa's statement afresh, the court said, "Thus, in case of need, there is no bar in re-examining an accused under section 313 CrPC and one of the reasons for re-examining may be the errors committed by the accused in his statement deliberately or otherwise."

It observed that although the court had allowed use of pen drive and had permitted long and detailed answers as insisted on by Balwa and his counsel Vijay Aggarwal, they "had other designs of vitiating the proceedings by misusing the opportunity."

"I may note with regret that in the course of the day when I was checking the replies (by Balwa) on the computer screen, Vijay Aggarwal advocate and accused Shahid Usman Balwa kept repeatedly addressing me and thereby diverting my attention from the computer screen.

"I may also note that without any reason at two different times Vijay Aggarwal supplied me photocopies of two long judgements recently delivered by the Supreme Court.....and kept requesting me to go through the same. This way he diverted my attention from the computer screen," the judge said, adding, "On account of this objectionable material contained in several replies went unnoticed and undetected."

"In view of the above discussion, I have no manner of doubt that this was done deliberately and designedly by accused Shahid Usman Balwa and advocate Vijay Aggarwal to mislead the court, to show the proceedings in poor light and to ultimately obstruct and subvert the judicial process by claiming prejudice," the special judge observed.

The court also observed that accused and his advocate had diverted its attention by requesting it to go through the apex court's judgements and they were "successful" in inserting such sentences as 'I do not understand the questions', 'I do not understand the relevance of the questions' etc. at numerous places in their replies.

It also observed that one of the lawyers, Ehtesham Hashmi, had filed an affidavit in the court along with a plea filed by Balwa but it was contrary to records as he was not an advocate representing Balwa.

"It was a well thought out conspiracy to vitiate the proceeding by subsequently claiming prejudice," it said.

On the issue of what action should be taken against the accused and the two advocates for misleading the court, the judge said, "There is no doubt that they need to be dealt with sternly to prevent the recurrence of such incidents in future."

"However, all three (Balwa and two lawyers) have tendered their written apologies. They have also apologised orally umpteen number of times. Mukul Rohatgi, senior advocate, has also apologized on their behalf praying that they may be pardoned," the judge observed.

Regarding the two advocates, the court observed that their conduct was not appropriate and up to the mark, as expected of an advocate.

"In view of the submission made at the bar, particularly that of Mukul Rohatgi, senior advocate, who assured that such acts would not be repeated in future and the written apologies tendered by the accused and his two advocates, I am inclined to take a lenient view in the matter, though there is no doubt that their act is sinister and reprehensible," it said.

"However, in view of their apologies and the assurance given by Mukul Rohatgi, senior advocate, I let them off with an advisory to mend their ways and to behave properly befitting an advocate in future," it said.

On the issue of recording of Balwa's statement, the court said if the objectionable parts were deleted, "the core of the statement would remain meaningful conveying the denial and explanation, whatever, of the accused. Thus, it would not cause any prejudice to either party."


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