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HC asks Essar, CBI to seek SC's clarification on spl court
January, 25th 2012

Essar, Loop and the CBI were today asked by the Delhi High Court to seek a decision from the Supreme Court whether the charges against them in a case arising out of 2G scam probe could be heard by a magistrate or the Special Court going into the scam.
For this purpose, the High Court asked the two companies and the CBI to seek clarifications from the apex court on its earlier directions to set up a special court for trial of the 2G case and no judicial fora, except it, would entertain any pleas related to the matter.
The direction came after a brief hearing on the petitions of Essar Teleholdings Ltd and Loop Telecom Ltd that the case against them, arising out of the 2G scam, be taken out of the court of the special judge to a magistrate's court as there was no corruption charges. "Heard counsel for the parties for some time. In view of the Supreme Court orders (on February 10 and April 11, last year)... we feel that it would be appropriate for the parties to seek clarification from the Supreme Court as to whether this court can proceed with the hearing of the petitions (of Essar and Loop).

"In order to enable them (Essar, Loop, CBI, Delhi High Court Registry) to do so, re-notify the case after two weeks," a bench headed by Justice B D Ahmed said and fixed the case for hearing on February 16.

The bench, also comprising Justice V K Jain, also wanted to know from Additional Solicitor General Mohan Parasaran as to why CBI did not want to seek clarifications from the Supreme Court. "Suppose, ten years down the line, the accused are convicted and then acquitted on the ground that their trial was vitiated as they were tried by a judge who was not empowered then what you will do? Why don't, you go to the Supreme Court ?, Justice Ahmed said.

Besides the two companies, the other accused named in the third charge sheet are telecom firm Loop Mobile India Ltd, Essar group promoters Anshuman and Ravi Ruia along with Loop Telecom promoters Kiran Khaitan, her husband I P Khaitan and Essar Group director (Strategy and Planning) Vikash Saraf.

They have been asked to appear on January 27 before Special CBI Judge O P Saini. During the hearing today, the High Court pointed out to the directions of the apex court ordering setting up of a special court for the 2G case and restraining all courts, except it, from hearing any plea in the matter.

Senior advocate Mukul Rohatgi, appearing for Essar, attempted to clarify the directions of the Supreme Court saying "I dare to say that no court including the Supreme Court can pass any judgement/order which is contrary to law."
Elaborating further, he said when the direction for setting up of a special CBI court for trying the 2G scam case came, the apex court had only the FIR, lodged under the IPC and the Prevention of Corruption (PC) Act that too against
unknown officials and private persons, was before it.

"The short point in the matter is that the charge sheet has been filed under section 420 (cheating) and 120B (criminal conspiracy) of the IPC and the accusations are triable by a Magistrate and not by the special court, constituted under the PC Act for hearing the 2G case," he said.

Referring to the charge sheet, Rohatgi contended that even CBI has said the offences alleged against the firms were triable by a magistrate and it (the charge sheet) was filed before special judge O P Saini merely because he was congizant of the facts of the case and was presiding over the special

"I feel either the CBI should not have filed the charge sheet before the special court or the special court should not have taken cognizance of it," he said.
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