In its recent judgement in the Rafale case, the Supreme Court has emphatically ruled that there is no scope for further investigation and yet the petitioners are seeking a CBI inquiry based on erroneous interpretation.
Justice K M Joseph of the three-judge Bench led by then Chief Justice Ranjan Gogoi, in his judgement has clearly stated that the petitioners have not sought relief under Section 17A of the Prevention of Corruption Act, hence, the petitioners cannot succeed in a Review Petition.
However, Justice Joseph also said his judgement will not stand in the way of a case being filed before an investigating agency like CBI subject to agency obtaining previous approval under Section 17A of the Prevention of Corruption Act.
The review petitioners in the Rafale case, who include former Union Ministers Yashwant Sinha, Arun Shourie and lawyer Prashant Bhushan, alleged that the government had concealed crucial facts and misled the Supreme Court into giving a favourable verdict. They had sought the registration of an FIR and a CBI probe into their complaint against the Rafale jets purchase. Now the petioners refer to Justice Joseph’s ruling to put forward their case.
However, Paras 15, 16 and 19 of the Judgement written by Chief Justice Ranjan Gogoi and Justice Sanjay Kishan Kaul categorically ruled why the petitioners stand was untenable. These paras reproduced beneath for easier comprehension of the issue.
Para 15: “The other aspect sought to be raised specifically in Review Petition No. 46/2019 is that the prayer made by the petitioners was for registration of an F.I.R. and investigation by the C.B.I., which has not been dealt with and the contract has been reviewed prematurely by the Judiciary without the benefit of investigation and inquiry into the disputed questions of facts.”
Para 16: “We do not consider this to be a fair submission for the reason that all counsels, including counsel representing the petitioners in this matter addressed elaborate submission on all the aforesaid three aspects. No doubt that there was a prayer made for registration of F.I.R. and further investigation but then once we has examined the three aspects on merits we did not consider it appropriate to issue any directions, as prayed for by the petitioners which automatically covered the direction for registration of F.I.R., prayed for.”
Para 19: They further went to say “It was the petitioners’ decision to have invoked the jurisdiction of this Court under Article 32 of the Constitution of India fully conscious of the limitation of the contours of the scrutiny and not to take recourse to other remedies as may be available. The petitioners cannot be permitted to state that having so taken recourse to this remedy, they want an adjudication process which is really different from what is envisaged under the provisions invoked by them.”
From the Paras 15, 16 and 19 of the judgement quoted above, it is clear that CJI Gogoi and Justice Kaul have held that the petitioners have approached the Apex Court under the writ jurisdiction i.e., Article 32 of the Constitution of India. The Court has examined the three aspects of process, pricing and offsets on merits after all counsels including the counsel representing the petitioners addressed elaborate submissions on these three aspects.
Thus, the Court has taken a decision of not issuing a direction of registering an FIR based on the merits of the case.
Though Justice Joseph in his judgement written in Para 86 stated:
“Even proceeding on the basis that on petitioners complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must direct, will it not be a futile exercise having regard to Section 17A. I am, therefore, of the view that though otherwise the petitioners in Writ Petition (Criminal) N0. 298 of 2018 may have made out a case, having regard to the law actually laid down in Lalita Kumari (supra), and more importantly, Section 17A of the Prevention of Corruption Act, in a Review Petition, the petitioners cannot succeed. However, it is my view that the judgement sought to be reviewed, would not stand in the way of the first respondent in Writ Petition (Criminal) No. 298 of 2018 from taking action on Exhibit P1-complaint in accordance with law and subject to first respondent obtaining previous approval under Section 17A of the Prevention of Corruption Act.”
Close scrutiny of the above interpretation of Justice Joseph referring to Lalita Kumari case law would not attract in the instant case as the requirement in the Lalita Kumari is that the investigating officer conducts a Preliminary Enquiry to ascertain that a cognizable offence is made out before registering an FIR or seeking permission under Section 17A of the Prevention of Corruption Act in this case.
In this case, the Supreme Court has come to the conclusion that there is no cognizable offence made out on the basis of merits which is akin to a PE by an investigating agency.
Para 19 of the judgement quoted above is relevant and leaves no scope for another PE by an investigating agency to come to this conclusion.
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