Beleaguered Sahara Chief Subrata Roy on Wednesday challenged before the Supreme Court his detention order passed by a two-member bench calling it “illegal and unconstitutional” and demanded his release.
“Declare the order deated 04.03.2014 as void, nullity and non-est in the eyes of law,” said the petition on behalf of Roy which will be heard on Thursday.
The Sahara group’s lawyers failed to get any immediate relief with a bench headed by Chief Justice P Sathasivam referring the matter through a habeas corpus petition to a two-member bench of justices K S Radhakrishnan and J S Khehar, which would hear it on Thursday afternoon.
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On March 4, the two-judge bench had sent Roy and two of company’s directors to Tihar jail in connection with the case relating to non-refund of Rs 20,000 crore to its investors. The same bench briefly heard the matter in the afternoon when senior advocate Ram Jethmalani made a strong plea for “rectification of mistake” in the March 4 order.
“It is a little embarrassing to argue before you that your order needs rectification,” the counsel said adding “It is a deep embarrassment for me but if the lordship is willing to hear then I would make my lordships quite satisfied with my arguments”.
However, the bench said it would go through the petition and hear the matter on Thursday and then can express its view. “We will go through the pleadings then we will say whether we are embarrassed or not,” Justice Khehar shot back.
A writ of habeas corpus is used to bring a prisoner or other detainee before the court to determine if the person’s imprisonment or detention is lawful.
“There is some defect which needs to be cured urgently” Jethmalani had pleaded the chief justice’s court and wanted it to hear him at 2 PM.
On the last date of hearing on March 7, the apex court had asked the Sahara group to come out with “honourable proposal” for depositing Rs 20,000 crore of investors money and posted the hearing on March 11.
The matter was then posted for hearing on March 11 but the case got adjourned with no date of further hearing specified. The special bench had earlier expressed unhappiness over the proposal of Sahara on the refund of investors’ money.
It had rejected Sahara’s proposal which had offered to pay Rs 2,500 crore within three days and the rest of the amount in five instalments by the end of July, 2015.
In a hard-hitting petititon, Roy submitted that detaining him is “purely illegal, contrary to the procedure prescribed by law and against the principles of natural justice”.
Roy questioned the constitutional validity of the detention order saying it was passed after an “illusionary” hearing. “The petitioner submits that the impugned order made after such illusionary hearing is in total defiance of the rules framed under the Constitution and is gross violation of principle of natural justice,” he said in his petition.
“The Bench of this Court without compliance with law and principles of natural justice has incarcerated him under a law which does not exist and without following the ordinary cannons of natural justice.
“The petitioner submits the order of incarceration dated March 4 is a complete nullity and it is duty of this Court to terminate this unlawful detention and release the petitioner forthwith,” he said.
The petition, signed and approved senior advocates–Ram Jethmalani, Rajeev Dhawan, Rakesh Dwivedi, S Ganesh and Ravi Shankar Prasad–contends that Roy is not liable for contempt as he is not a Director or officer-in-charge of two Sahara’s firm, which had collected money from investors.
“The Petitioner is a shareholder of Sahara India Real Estate Corporation(SIRECL) and Sahara Housing and Investment Corporation Limited(SHICL). The Petitioner holds 0.03 percent shares in SIRECL and 0.112 percent shares in SHICL.
It is submitted that the Petitioner is neither a Director of either of the two companies, nor is he an Officer –incharge of the two Companies. It is further submitted that the Petitioner is in no manner involved in nor responsible for the day to day affairs or conduct of business of the said Companies,” he said.
Raising question on the court proceedings on March 4, Roy submitted that he was remanded to custody without reference to any legal provision authorizing this, any offence or wrong formulated against him.
“His Lordship Justice Khehar presumably in agreement with his brother Judge said that the Court was not hearing the contempt petition but only purging. This neither the client nor the counsel understood.
“This is not intelligible or correct and yet after having said this, in the impugned order the petitioner is remanded to custody and deprived of his liberty without reference to any legal provision authorizing this, any offence or wrong formulated against him or any hearing held on that issue or a conviction recorded thereon and the punishment dealt out precisely defined,” the petition said.
“The petitioner is today detained under an order which does not inform what he is detained for, what is he found guilty of, what is the punishment order and what is the duration thereof. This is not following what is called procedure established by law within the meaning of Article 21 of the Constitution.
“The petitioner submits that he is the victim of an order of detention in custody made under a law which does not authorize it or following the procedure prescribed by law for such incarceration. The Petitioner is entitled to be released forthwith by suitable a writ, direction or order,” he said. He said that the order is complete “nullity” and “non-est” in law. “This has generated a reasonable apprehension in the mind of the petitioner that this Court has already arrived at a final decision and will only be satisfied, not with petitioner’s arguments and submissions on merits, to show that there has been no wilful disobedience of any kind contemplated by the definition of the Civil Contempt nor the presence of ingredients of Section 13 of the Contempt of the Court Act,” he said.
The petition said Roy was produced before this Court on March 4 when, this Court without coming to the conclusion that the he was guilty of contempt and without framing any charge, the court sent him to judicial custody till the next date of hearing in complete disregard of the Contempt of Courts Act as well as the Supreme Court Rules.
“In the present case the facts clearly demonstrate that the impugned order dated March 04, has been passed without following the due process and the liberty of the petitioner has been deprived without authority of law,” the petition said.
“Jail authorities are legally & constitutionally bound to produce detenues in person before the Supreme Court on March 11 i.e. today. In the event, the concerned bench is not sitting, the petitioner should forthwith be release from jail,” the petition said.