Corrections in judgement is allowed
We are, thus, inclined to accept the prayer and the sentence in para 25 to the following effect - “The pricing details have, however, been shared with the Comptroller and Auditor General (hereinafter referred to as “CAG”), and the report of the CAG has been examined by the Public Accounts Committee (hereafter referred to as “PAC”). Only a redacted portion of the report was placed before the Parliament and is in public domain” should be replaced by what we have set out hereinafter:
“The Government has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC in the usual course of business. Only a redacted version of the report is placed
before the Parliament and in public domain.”
The prayer is accordingly allowed.
Regarding review of 36 Rafale fighter jets.
We cannot lose sight of the fact that we are dealing with a contract for aircrafts, which was pending before different Governments for quite some time and the necessity for those aircrafts has never been in dispute.
We had, thus, concluded in para 34 noticing that other than the aforesaid three aspects, that too to a limited extent, this Court did not consider it appropriate to embark on a roving and fishing enquiry. We were, however, cautious to note that this was in the context of the writ petition
filed under Article 32 of the Constitution of India, the jurisdiction invoked.
No doubt that there was a prayer made for registration of F.I.R. and further investigation but then once we had 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 FIR, prayed for.
Insofar as the aspect of pricing is concerned, the Court satisfied itself with the material made available. It is not the function of this Court to determine the prices nor for that matter can such aspects be dealt with on mere suspicion of persons who decide to approach the Court. The
internal mechanism of such pricing would take care of the situation. On the perusal of documents we had found that one cannot compare apples and oranges. Thus, the pricing of the basic aircraft had to be compared which was competitively marginally lower. As to what should be loaded on the aircraft or not and what further pricing should be added has to be left to the best judgment of the competent authorities.
It does appear that the endeavour of the petitioners is to construe themselves as an appellate authority to determine each aspect of the contract and call upon the Court to do the same. We do not believe this to be the jurisdiction to be exercised.
We decline to, once again, embark on an elaborate exercise of analyzing each clause, perusing what may be the different opinions, then taking a call whether a final decision should or should not have been taken in such technical matters.
An aspect also sought to be emphasized was that this Court had misconstrued that all the Reliance Industries were of one group since the two brothers held two different groups and the earlier arrangement was with the Company of the other brother. That may be so, but in our observation this aspect was referred to in a generic sense more so as the decision of whom to engage as the offset partner was a matter left to the suppliers and we do not think that much can be made out of it.
It is for the aforesaid reasons also that we find that there was no ground made out for initiating prosecution under Section 340 Cr.P.C.
We are, thus, of the view that the review petitions are without any merit and are accordingly dismissed, once again, re-emphasising that our original decision was based within the contours of Article 32 of the Constitution of India.
Contempt of court by Rahul Gandhi
realizing the seriousness of the matter and the inadequacy of the affidavit, learned counsel for the contemnor took liberty to file an additional affidavit. Vide order dated 30.4.2019, this Court left the admissibility and acceptance of such an affidavit to be considered on the subsequent date.
An additional affidavit was filed on 8.5.2019 stating that the contemnor held this Court in the highest esteem and respect and never intended to interfere with the process of administration of justice. An unconditional apology was tendered by him by stating that the attributions were entirely
unintentional, non-willful and inadvertent.
We must note that it is unfortunate that without verification or even perusing as to what is the order passed, the contemnor deemed it appropriate to make statements as if this Court had given an imprimatur to his allegations against the Prime Minister, which was far from the truth. This was not one sentence or a one off observation but a repeated statement in different manners conveying the same. No doubt the contemnor should have been far more careful.
The matter was compounded by filing a 20 page affidavit with a large number of documents annexed rather than simply accepting the mistake and giving an unconditional apology. Better wisdom dawned on the counsel only during the course of arguments thereafter when a subsequent affidavit dated 8.5.2019 was filed.
We do believe that persons holding such important positions in the political spectrum must
be more careful. As to what should be his campaign line is for a political person to consider. However, this Court or for that matter no court should be dragged into this political discourse valid or invalid, while attributing aspects to the Court which had never been held by the Court. Certainly Mr. Gandhi needs to be more careful in future.
However, in view of the subsequent affidavit, better sense having prevailed, we would not like to continue these proceedings further and, thus, close the contempt proceedings with a word of caution for the contemnor to be more careful in future.
1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL/CRIMINAL ORIGINAL JURISDICTION
Review Petition (Crl.) No.46 of 2019
IN
Writ Petition (Crl.) No.298 of 2018
YASHWANT SINHA & ORS. ….Petitioners
Versus
CENTRAL BUREAU OF INVESTIGATION
Through its DIRECTOR & ANR. ….Respondents
(I.A. No. 69008/2019 – CLARIFICATION/DIRECTION, I.A. No.
69006/2019 – INTERVENTION APPLICATION, I.A. No.
71047/2019 – PRODUCTION OF RECORDS and I.A. No.
69009/2019 – STAY APPLICATION)
WITH
MA 58/2019 in W.P.(Crl.) No. 225/2018 (PIL-W) (I.A. No.
182576/2018 – CORRECTION OF MISTAKES IN THE
JUDGMENT)
R.P.(Crl.) No. 122/2019 in W.P.(Crl.) No. 297/2018 (PIL-W)
2
MA 403/2019 in W.P.(Crl.) No. 298/2018 (PIL-W)
(I.A. No. 29248/2019 – INITIATING CRIMINAL
PROCEEDINGS U/S 340 OF CRPC)
R.P.(C) No. 719/2019 in W.P.(C) No. 1205/2018 (PIL-W)
CONMT.PET.(Crl.) No. 3/2019 in R.P.(Crl.) No. 46/2019 in
W.P.(Crl.) No. 298/2018 (PIL-W)
(I.A. No. 63168/2019 – EXEMPTION FROM FILING O.T., I.A.
No.71678/2019 – EXEMPTION FROM FILING O.T. and I.A. No.
66253/2019 – EXEMPTION FROM FILING O.T.)
J U D G M E N T
SANJAY KISHAN KAUL, J.
(I.A. No. 63168/2019 – EXEMPTION FROM FILING O.T., I.A.
No.71678/2019 – EXEMPTION FROM FILING O.T. and I.A. No.
66253/2019 – EXEMPTION FROM FILING O.T.)
1. Allowed subject to just exception.
MA 58/2019 in W.P.(Crl.) No. 225/2018 (PIL-W) (I.A. No.
182576/2018 – CORRECTION OF MISTAKES IN THE
JUDGMENT)
3
2. The Union of India has filed the present application seeking
correction of what they claim to be an error, in two sentences in para 25
of the judgment delivered by this Court on 14.12.2018. This error is
stated to be on account of a misinterpretation of some sentences in a note
handed over to this Court in a sealed cover.
3. The Court had asked vide order dated 31.10.2018 to be apprised of
the details/cost as also any advantage, which may have accrued on that
account, in the procurement of the 36 Rafale fighter jets. The
confidential note in the relevant portions stated as under:
“The Government has already shared the pricing details with the
CAG. The report of the CAG is examined by the PAC. Only a
redacted version of the report is placed before the Parliament and
in public domain.”
4. It is the submission of the learned Attorney General that the first
sentence referred to the sharing of the price details with the CAG. But
the second sentence qua the PAC referred to the process and not what
had already transpired. However, in the judgment this portion had been
understood as if it was already so done.
4
5. On hearing learned counsel for the parties, we are of the view that
the confusion arose on account of two portions of the paragraph referring
to both what had been and what was proposed to be done. Regardless,
what we noted was to complete the sequence of facts and was not the
rationale for our conclusion.
6. We are, thus, inclined to accept the prayer and the sentence in para
25 to the following effect - “The pricing details have, however, been
shared with the Comptroller and Auditor General (hereinafter referred to
as “CAG”), and the report of the CAG has been examined by the Public
Accounts Committee (hereafter referred to as “PAC”). Only a redacted
portion of the report was placed before the Parliament and is in public
domain” should be replaced by what we have set out hereinafter:
“The Government has already shared the pricing details with the
CAG. The report of the CAG is examined by the PAC in the usual
course of business. Only a redacted version of the report is placed
before the Parliament and in public domain.”
7. The prayer is accordingly allowed.
5
8. The application stands disposed of.
R.P. (Crl.) No.46/2019 in WP (Crl.) No.298/2018
R.P.(Crl.) No. 122/2019 in W.P.(Crl.) No. 297/2018 (PIL-W)
MA 403/2019 in W.P.(Crl.) No. 298/2018 (PIL-W)
(I.A. No. 29248/2019 – INITIATING CRIMINAL
PROCEEDINGS U/S 340 OF CRPC)
R.P.(C) No. 719/2019 in W.P.(C) No. 1205/2018 (PIL-W)
9. The review petitions were listed for hearing in Court and elaborate
submissions were made by learned counsel for the parties.
10. We may note that insofar as the preliminary objection raised by the
Attorney General is concerned qua certain documents sought to be
produced by the petitioners, that aspect was dealt with by our order dated
10.4.2019 and the said preliminary objection was overruled.
11. We cannot lose sight of the fact that unless there is an error
apparent on the face of the record, these review applications are not
required to be entertained. We may also note that the application under
Section 340 of the Code of Criminal Procedure, 1973 partly emanates
6
from an aspect which has been dealt with in our order passed today on
the application for correction of the order filed by the Union of India.
12. We have elaborately dealt with the pleas of the learned counsel for
the parties in our order dated 14.12.2018 under the heads of ‘Decision
Making Process’, ‘Pricing’ and ‘Offsets’. However, before proceeding to
deal with these aspects we had set out the contours of the scrutiny in
matters of such a nature. It is in that context we had opined that the
extent of permissible judicial review in matters of contract, procurement,
etc. would vary with the subject matter of the contract and that there
cannot be a uniform standard of depth of judicial review which could be
understood as an across the board principle to apply to all cases of award
of work or procurement of goods/material. In fact, when two of these
writ petitions were listed before the Court on 10.10.2018, we had
embarked on a limited enquiry despite the fact that we were not satisfied
with the adequacy of the averments and the material in the writ petitions.
It was the object of the Court to satisfy itself with the correctness of the
decision making process.
7
13. We cannot lose sight of the fact that we are dealing with a contract
for aircrafts, which was pending before different Governments for quite
some time and the necessity for those aircrafts has never been in dispute.
We had, thus, concluded in para 34 noticing that other than the aforesaid
three aspects, that too to a limited extent, this Court did not consider it
appropriate to embark on a roving and fishing enquiry. We were,
however, cautious to note that this was in the context of the writ petition
filed under Article 32 of the Constitution of India, the jurisdiction
invoked.
14. In the course of the review petitions, it was canvased before us that
reliance had been placed by the Government on patently false documents.
One of the aspects is the same as has been dealt with by our order passed
today on the application for correction and, thus, does not call for any
further discussion.
15. The other aspect sought to be raised specifically in Review Petition
No.46/2019 is that the prayer made by the petitioner 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
8
the benefit of investigation and inquiry into the disputed questions of
facts.
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 submissions 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 had 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 FIR, prayed for.
17. Insofar as the aspect of pricing is concerned, the Court satisfied
itself with the material made available. It is not the function of this Court
to determine the prices nor for that matter can such aspects be dealt with
on mere suspicion of persons who decide to approach the Court. The
internal mechanism of such pricing would take care of the situation. On
the perusal of documents we had found that one cannot compare apples
and oranges. Thus, the pricing of the basic aircraft had to be compared
which was competitively marginally lower. As to what should be loaded
9
on the aircraft or not and what further pricing should be added has to be
left to the best judgment of the competent authorities.
18. We have noted aforesaid that a plea was also raised about the
“non-existent CAG report” but then at the cost of repetition we state that
this formed part of the order for correction we have passed aforesaid.
19. 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.
20. Insofar as the decision making process is concerned, on the basis
of certain documents obtained, the petitioners sought to contend that
there was contradictory material. We, however, found that there were
undoubtedly opinions expressed in the course of the decision making
process, which may be different from the decision taken, but then any
10
decision making process envisages debates and expert opinion and the
final call is with the competent authority, which so exercised it. In this
context reference was made to (a) Acceptance of Necessity (‘AON’)
granted by the Defence Acquisition Council (‘DAC’) not being available
prior to the contract which would have determined the necessity and
quantity of aircrafts; (b) absence of Sovereign Guarantee granted by
France despite requirement of the Defence Procurement Procedure
(‘DPP’); (c) the oversight of objections of three expert members of the
Indian Negotiating Team (‘INT’) regarding certain increase in the
benchmark price; and (d) the induction of Reliance Aerostructure
Limited (‘RAL’) as an offset partner.
21. It does appear that the endeavour of the petitioners is to construe
themselves as an appellate authority to determine each aspect of the
contract and call upon the Court to do the same. We do not believe this
to be the jurisdiction to be exercised. All aspects were considered by the
competent authority and the different views expressed considered and
dealt with. It would well nigh become impossible for different opinions
to be set out in the record if each opinion was to be construed as to be
11
complied with before the contract was entered into. It would defeat the
very purpose of debate in the decision making process.
22. Insofar as the aforesaid pleas are concerned, it has also been
contended that some aspects were not available to the petitioner at the
time of the decision and had come to light subsequently by their
“sourcing” information. We decline to, once again, embark on an
elaborate exercise of analyzing each clause, perusing what may be the
different opinions, then taking a call whether a final decision should or
should not have been taken in such technical matters.
23. An aspect also sought to be emphasized was that this Court had
misconstrued that all the Reliance Industries were of one group since the
two brothers held two different groups and the earlier arrangement was
with the Company of the other brother. That may be so, but in our
observation this aspect was referred to in a generic sense more so as the
decision of whom to engage as the offset partner was a matter left to the
suppliers and we do not think that much can be made out of it.
12
24. It is for the aforesaid reasons also that we find that there was no
ground made out for initiating prosecution under Section 340 Cr.P.C.
25. We are, thus, of the view that the review petitions are without any
merit and are accordingly dismissed, once again, re-emphasising that our
original decision was based within the contours of Article 32 of the
Constitution of India.
CONMT.PET.(Crl.) No. 3/2019 in R.P.(Crl.) No. 46/2019 in
W.P.(Crl.) No. 298/2018 (PIL-W)
26. The contempt petition emanates from an allegation against Mr.
Rahul Gandhi, the then President of the Indian National Congress, on
account of utterances made in the presence of several media persons on
10.4.2019 by him alleging that the Supreme Court had held that
“Chowkidar (Mr. Narendra Modi, Prime Minister) is a thief.” The
Supreme Court was also attributed to having held in consonance with
what his discourse was, i.e., that the Prime Minister of India stole money
from the Air Force and gave it to Mr. Anil Ambani and that the Supreme
13
Court had admitted that Mr. Modi had indulged in corruption. It was
stated that the Supreme Court had said that the Chowkidar is a thief.
27. On notice being issued, reply affidavit dated 22.4.2019 was filed
averring that the comments were made on the basis of a bona fide belief
and general understanding of the order even though the contemnor had
not himself had the opportunity to see, read or analyse the order at that
stage. It was further averred that there had not been the slightest
intention to insinuate anything regarding the Supreme Court proceedings
in any manner as the statements had been made by the contemnor in a
“rhetorical flourish in the heat of the moment” and that his statement has
been used and misused by his political opponents to project that he had
deliberately attributed the utterances to the Supreme Court. In that
context, it was averred that “nothing could be farther from my mind. It is
also clear that no Court would ever do that and hence the unfortunate
references (for which I express regret) to the Court order and to the
political slogan in juxtaposition the same breath in the heat of political
campaigning ought not to be construed as suggesting that the Court had
given any finding or conclusion on that issue.”
14
28. The acceptance of such an affidavit was opposed by the petitioner,
a BJP Member of Parliament, in the contempt petition. It was stated that
instead of expression of any remorse or apology, attempt was made to
justify the contemptuous statement as having been made in the heat of the
moment.
29. On arguments having taken place in this context, and realizing the
seriousness of the matter and the inadequacy of the affidavit, learned
counsel for the contemnor took liberty to file an additional affidavit.
Vide order dated 30.4.2019, this Court left the admissibility and
acceptance of such an affidavit to be considered on the subsequent date.
An additional affidavit was filed on 8.5.2019 stating that the contemnor
held this Court in the highest esteem and respect and never intended to
interfere with the process of administration of justice. An unconditional
apology was tendered by him by stating that the attributions were entirely
unintentional, non-willful and inadvertent.
30. The matter was, once again, addressed by the learned counsel. We
have given our thoughtful consideration to this issue.
15
31. We must note that it is unfortunate that without verification or
even perusing as to what is the order passed, the contemnor deemed it
appropriate to make statements as if this Court had given an imprimatur
to his allegations against the Prime Minister, which was far from the
truth. This was not one sentence or a one off observation but a repeated
statement in different manners conveying the same. No doubt the
contemnor should have been far more careful.
32. The matter was compounded by filing a 20 page affidavit with a
large number of documents annexed rather than simply accepting the
mistake and giving an unconditional apology. Better wisdom dawned on
the counsel only during the course of arguments thereafter when a
subsequent affidavit dated 8.5.2019 was filed. We do believe that
persons holding such important positions in the political spectrum must
be more careful. As to what should be his campaign line is for a political
person to consider. However, this Court or for that matter no court
should be dragged into this political discourse valid or invalid, while
attributing aspects to the Court which had never been held by the Court.
Certainly Mr. Gandhi needs to be more careful in future.
16
33. However, in view of the subsequent affidavit, better sense having
prevailed, we would not like to continue these proceedings further and,
thus, close the contempt proceedings with a word of caution for the
contemnor to be more careful in future.
(I.A. No. 69008/2019 – CLARIFICATION/DIRECTION, I.A. No.
69006/2019 – INTERVENTION APPLICATION, I.A. No.
71047/2019 – PRODUCTION OF RECORDS and I.A. No.
69009/2019 – STAY APPLICATION)
34. In view of the orders passed above, these applications do not
survive for consideration and the same are disposed of. Any other
pending applications also stands disposed.
..….….…………………….C.J.I.
[Ranjan Gogoi]
...……………………………J.
[Sanjay Kishan Kaul]
New Delhi.
November 14, 2019.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
REVIEW PETITION (CRIMINAL) NO. 46 OF 2019
IN
WRIT PETITION (CRIMINAL) NO. 298 OF 2018
YASHWANT SINHA AND OTHERS ... PETITIONER(S)
VERSUS
CENTRAL BUREAU OF INVESTIGATION
THROUGH ITS DIRECTOR AND ANOTHER ... RESPONDENT(S)
AND CONNECTED MATTERS
J U D G M E N T
K.M. JOSEPH, J.
1. I have perused the Order proposed by my learned
Brother, Justice Sanjay Kishan Kaul. While I agree with the
final decision subject to certain aspects considered by me,
I would, by my separate opinion, give my reasons, which are
as hereunder.
2
2. The common judgment in four Writ Petitions has
generated three Review Petitions, a Contempt Petition and
a Petition under Section 340 of The Code of Criminal
Procedure, 1973 (hereinafter referred to as ‘the Cr.PC’ for
short) and an application seeking correction.
3. Review Petition (Criminal) No. 46 of 2019 is filed by
the petitioners in Writ Petition (Criminal) No. 298 of 2018.
In the said Writ Petition, relief sought, inter alia, was
to register an FIR and to investigate the complaint which
was made by the petitioners and to submit periodic status
reports. The reliefs, as are made in the clauses ‘a’ to ‘e’
of the prayer, read as follows:
“a. Issue writ of mandamus or any other
appropriate writ directing Respondent
No.1 to register an F.I.R. on the
complaint that was made by the
Petitioners on the 04th of October, 2018.
b. Issue writ of mandamus or any other
appropriate writ directing the
Respondent No.1 to investigate the
offences disclosed in the said complaint
3
in a time bound manner and to submit
periodic status reports to the Court.
c. Issue writ of mandamus or any other
appropriate writ directing the
Respondent No.2 to cease and desist from
influencing or intimidating in any way
the officials that would investigate the
offences disclosed in the complaint.
d. Issue writ of mandamus or any other
appropriate writ directing the
Respondent No.1 and Respondent No.2 to
not transfer the C.B.I. officials tasked
with investigation of the offences
mentioned in the complaint.
e. Issue writ of mandamus or any other
appropriate writ to ensure that the
relevant records are not destroyed or
tampered with and are transferred to the
CBI.”
4. Review Petition (Criminal) No. 122 of 2019 is filed by
the petitioner in Writ Petition (Criminal) No. 297 of 2018.
The reliefs sought in the said Writ Petition is as follows:
“(a) to constitute a Special
Investigating Team (SIT) under the
supervision of the Hon’ble Supreme
Court with following mandate:
4
i. to investigate the reasons for
cancellation of earlier deal
for the purchase of 126 Rafale
Fighter Jets.
ii. As to how the figure of 36
Fighter Jets was arrived at
without the formalities
associated with such a highly
sensitive defence procurement.
iii. to look into the alterations
made by the Respondent No.2
about the pricing of the Rafale
Fighter Jets in view of the
earlier price of Rs.526 crores
per Fighter Jets alongwith
requisite equipments, services
and weapons and Rs.670 crores
without associated equipments,
weapons, India specific
enhancements, maintenance
support and services; which
resulted into the escalation of
price of each Fighter Jets from
Rs.526 crores to more than 1500
crores;
iv. to investigate as to how a
novice company viz. Reliance
Defence came in picture of this
highly sensitive defence deal
involving Rs.59,000 crores
without having any kind of
experience and expertise in
making of Fighter Jets.
v. As to why name of ‘Hindustan
Aeronautics Limited’ was
removed from the deal?
5
vi. As to whether the decision of
purchase of only 36 Rafale
Fighter Jets instead of 126 was
a compromise with the security
of the Country or not?
vii. Whether the Reliance Defence or
it’s sister concern or any
other individual or
intermediary company has/have
influenced the decision making
of the purchase of Rafale
Fighter Jets at substantially
higher prices in the backdrop
of the statement given by the
then President of French
Republic and the investment
made by the Reliance
Entertainment into the Julie
Gayet’s Firm Rouge
International was made with a
purpose to influence the
decision of removal of the HAL
and induction of Reliance
Defence as partner of the
Dassault;
(b) to terminate/cancel the
inter-governmental agreement with
the Govt. of French Republic signed
on 23-09-2016 for the purchase of 36
Rafale Fighter Jets and to give
direction to the Respondent No.3 to
lodge an FIR and to report the
progress of investigation to this
Hon’ble Court;
(c) to restore the earlier deal for the
purchase of 126 Rafale Fighter Jets
6
which was cancelled on 24.06.2015
by the Govt. of India.
(d) to bar the Dassault Reliance
Aerospace Limited (DRAL) from
handling/manufacturing the Rafale
Fighter Jets;
(e) to direct the Respondent 1&2 to
propose the Public Sector Company
Hindustan Aeronautics Limited as
the Indian Offset Partner of
Dassault;”
5. Review Petition (Criminal) No. 719 of 2019 has been
filed again by a sole petitioner in Writ Petition (Criminal)
No. 1205 of 2018. The reliefs sought in the said Writ
Petition is as follows:
“a) Issue an appropriate writ or order or
direction directing the respondents to
file the details of the agreement
entered into between the Union of India
and Government of France with regard to
7
the purchase of 36 Rafale Fighter Jets
in a sealed envelope.
b) Issue an appropriate writ or order or
direction directing the respondents to
furnish in a sealed envelope the
information with regard to the present
cost of Rafale Fighter Jets and also the
earlier cost of the Rafale Fighter Jets
during the regime of UPA Government;
c) Issue an appropriate writ or order or
direction directing the respondents to
furnish any other information in sealed
envelope before the Hon’ble Supreme
Court with regard to the controversy
erupted in the purchase of Rafale
Fighter Jets;”
8
THE IMPUGNED JUDGMENT
6. The three Writ Petitions, as also Writ Petition in
which no Review is filed, came to be dismissed. This Court
has referred to the reliefs which have been sought in the
four Writ Petitions. This Court referred to the parameters
of judicial review. The extent of permissible judicial
review of contracts, procurement, etc., was found to vary
with the subject matter of the contract. It was further
observed that the scrutiny of the challenges before the
Court, will have to be made keeping in mind the confines
of national security, the subject of procurement being
crucial to the nation’s sovereignty.
7. The findings of this Court in paragraph 15 throws light
on the controversy as was understood by the Court. Paragraph
15 reads as follows:
“15. It is in the backdrop of the above
facts and the somewhat constricted power of
judicial review that, we have held, would be
available in the present matter that we now
proceed to scrutinise the controversy raised
in the writ petitions which raise three broad
9
areas of concern, namely, (i) the
decision-making process; (ii) difference in
pricing; and (iii) the choice of IOP.”
(Emphasis supplied)
8. Thereafter, this Court had proceeded to consider the
decision-making process, pricing and offsets and did not
find in favour of the petitioners. It is after the
discussion, as aforesaid, it is to be noted that this Court
finally concluded as follows:
“33. Once again, it is neither appropriate
nor within the experience of this Court to
step into this arena of what is technically
feasible or not. The point remains that DPP
2013 envisages that the vendor/OEM will
choose its own IOPs. In this process, the role
of the Government is not envisaged and, thus,
mere press interviews or suggestions cannot
form the basis for judicial review by this
Court, especially when there is categorical
denial of the statements made in the Press,
by both the sides. We do not find any
substantial material on record to show that
this is a case of commercial favouritism to
any party by the Indian Government, as the
option to choose IOP does not rest with the
Indian Government.
10
Conclusion
34. In view of our findings on all the
three aspects, and having heard the matter in
detail, we find no reason for any
intervention by this Court on the sensitive
issue of purchase of 36 defence aircrafts by
the Indian Government. Perception of
individuals cannot be the basis of a fishing
and roving enquiry by this Court, especially
in such matters. We, thus, dismiss all the
writ petitions, leaving it to the parties to
bear their own costs. We, however, make it
clear that our views as above are primarily
from the standpoint of the exercise of the
jurisdiction under Article 32 of the
Constitution of India which has been invoked
in the present group of cases.”
(Emphasis supplied)
9. Upon consideration of the Review Petitions and
Applications, by Order dated 26.02.2019, prayer for hearing
in the open court was allowed. We have heard learned
counsel. We heard parties in Review Petition (Criminal) No.
46 of 2019, the learned Attorney General and learned
Solicitor General.
10. As far as petitioners in Review Petition (Criminal) No.
46 of 2019 is concerned, the complaint appears to be that
11
this Court has totally overlooked the relief sought in Writ
Petition (Criminal) No. 298 of 2018.
11. The first respondent is the Central Bureau of
Investigation (CBI) and the second respondent is the Union
of India in Writ Petition (Criminal) No. 298 of 2018. The
substance of the Writ Petition is that after following the
due process under the Defence Procurement Procedure (DPP),
to procure Advanced Fighter Aircrafts, and as per the
authority under the DPP, the IAF Service Headquarters,
after a widely consultative process with multiple
Institutions, prepared Services Qualitative Requirements
(SQR), specifying the number of aircrafts required as 126.
There was the recommendation of the Committee that Make in
India by Hindustan Aeronautics Limited (HAL), a Public
Sector Enterprise, under a Transfer Technology Agreement,
should be the mode of procurement. The Defence Acquisition
Council granted the mandatory Acceptance of
Necessity (AON). A Request for Proposal (RFP) was,
accordingly, issued. There were six vendors. In 2011, it
12
was announced that Dassault’s Rafale and Eurofighter GmbH
Typhoon met the IAF requirements. In March of 2014, a Work
Share Agreement was entered into between Dassault Aviation
and HAL. Accordingly, HAL would do 70 per cent of the work
on 108 planes. On 25.03.2015, it is alleged that Dassault
was in the final stages of negotiations with India for 126
aircrafts and HAL was to be the partner of Dassault.
12. It was the further case of the petitioners that a new
deal was, however, inexplicably negotiated and announced
by the Prime Minister without following the due procedure.
Number of aircrafts were reduced to 36. This involved
complete violation of all laid down Defence Procurement
Procedure. There are various allegations made against the
deal to purchase 36 planes in place of 126. In particular,
there is reference to Mr. Anil Ambani not owning any company
engaged in manufacture of products and services mentioned
in the list of products and services eligible for discharge
of offset obligations. A company was incorporated as
Reliance Defence Limited on 28.03.2015, just twelve days
13
before the new deal was suddenly announced on 10.04.2015.
There is also the case that DPP was bypassed for collateral
considerations. In the complaint lodged with CBI, there is
reference to the Prevention of Corruption Act, 1988, as it
stood prior to amendment. Their request is to register an
FIR under the provisions which are mentioned therein which
fall under the Prevention of Corruption Act, 1988 and to
investigate the matter. Other reliefs are already referred
to.
13. The petitioners in the said case, premise their case
on the judgment of this Court in Lalita Kumari v. Government
of Uttar Pradesh and others1. It is their case that though
reference was made to the relief at the beginning of the
judgment, thereafter, this Court focused only on the merits
of the matter in terms of the powers available to it under
judicial review. Reliefs sought in other Writ Petitions
were focused upon. The only prayers of the petitioners in
Writ Petition (Criminal) No. 298 of 2018, as noticed, was
1 (2014) 2 SCC 1
14
a direction to follow the command of Lalita Kumari (supra)
and to register an FIR as they have filed a complaint which
is produced along with Writ Petition and as no action was
taken as mandated by the Constitution Bench of this Court,
they have approached this Court. The error is apparent in
not even considering the impact of the Constitution Bench
and requires to be redressed through the Review Petition.
The petitioners also, undoubtedly, point out that there was
suppression of facts by the respondents. This Court was
sought to be misled. There is also a case that the
petitioners have obtained documents which suggest that
there were parallel negotiations being undertaken by the
Prime Minister’s Office (PMO) which was strenuously
objected to by the Indian Negotiating Team (INT). The
statement in the judgment that the pricing details have been
shared with the Comptroller and Auditor General of
India (CAG) and the Report of the CAG has been examined by
the Public Accounts Committee (PAC) and that only a redacted
portion of the Report was placed before the Parliament, are
pointed out to be patently false. It is primarily in regard
15
to the same that an Application is filed purporting to be
under Section 340 of the Cr.PC. There is an Application for
Correction and there is complaint of wholesale suppression
of facts. Errors are also referred to.
14. The stand of the Government of India is that the Review
Petitions are meritless. This Court has elaborately
considered the matter and found that there was nothing
wrong. It is the case of the Government that the impugned
judgement addresses contentions of the petitioners on
compelling principles with regard to the scope of the
judicial inquiry in cases involving the security and
defence of the nation and it lays down the correct law. It
is pointed out that there is no grave error apparent on the
face of record. Reliance is placed on judgment of this Court
in Mukesh v. State (NCT of Delhi)2. A fishing inquiry is
impermissible. There was additional benefit to the country
as a result of the deal which is sought to be questioned.
Reliance is placed on the findings of the CAG. It is
2 (2018) 8 SCC 149
16
contended that the CAG has conclusively held that the basis
of the benchmark by the INT was unrealistic.
15. The CAG has held that 36 Rafale aircrafts deal was 2.86
per cent lower than the audit aligned price. Regarding the
offset guidelines being amended initially to benefit an
industrial group, it is stoutly denied. The waiver of
sovereignty/bank guarantee in Government to Government
agreements is pointed out to be not unusual. Support is
sought to be drawn from the Report of the CAG, inter alia,
finding that the French Government was made equally
responsible to fulfil its obligations. The production and
delivery schedule are monitored by high-level Committee
with representatives of both Governments of France and
India.
16. As far as mandate of Lalita Kumari (supra), not being
followed, it is stated that disclosing prima facie that a
cognizable offence is committed is mandatory, which is
lacking in the present case especially once this Court has
concluded that on decision-making process, pricing and
17
Indian Offset Partners, there was no reason to intervene.
Once this Court has held that perception of individuals
cannot be the basis for a fishing and roving inquiry, no
cognizable offence is made out prima facie so as to order
registration of an FIR. There is no concealment of facts
or false presentation of facts.
CONTOURS OF REVIEW JURISDICTOIN
17. Article 137 of the Constitution confers jurisdiction
on the Supreme Court of India to exercise power of review.
It reads as follows:
“137. Review of judgments or orders by the
Supreme Court Subject to the provisions of
any law made by Parliament or any rules made
under Article 145, the Supreme Court shall
have power to review any judgment pronounced
or order made by it.”
18. Rules have been made known as The Supreme Court Rules,
2013. Order XLVII of the said Rules, deals with review (In
The Supreme Court Rules, 1966, it was contained in Order
XL) and it reads as follows:
18
“ORDER XLVII
REVIEW
1. The Court may review its judgment or
order, but no application for review will be
entertained in a civil proceeding except on
the ground mentioned in Order XLVII, rule I
of the Code, and in a criminal proceeding
except on the ground of an error apparent on
the face of the record.
The application for review shall be
accompanied by a certificate of the Advocate
on Record certifying that it is the first
application for review and is based on the
grounds admissible under the Rules.
2. An application for review shall be by
a petition, and shall be filed within thirty
days from the date of the judgment or order
sought to be reviewed. It shall set out
clearly the grounds for review.
3. Unless otherwise ordered by the Court
an application for review shall be disposed
of by circulation without any oral arguments,
but the petitioner may supplement his
petition by additional written arguments.
The Court may either dismiss the petition or
direct notice to the opposite party. An
application for review shall as far as
practicable be circulated to the same Judge
or Bench of Judges that delivered the
judgment or order sought to be reviewed.
4. Where on an application for review the
Court reverses or modifies its former
decision in the case on the ground of mistake
of law or fact, the Court, may, if it thinks
fit in the interests of justice to do so,
19
direct the refund to the petitioner of the
court-fee paid on the application in whole or
in part, as it may think fit.
5. Where an application for review of any
judgment and order has been made and disposed
of, no further application for review shall
be entertained in the same matter.”
19. Thus, a perusal of the same would show that the
jurisdiction of this Court, to entertain a review petition
in a civil matter, is patterned on the power of the Court
under Order XLVII Rule 1 of The Code of Civil Procedure,
1908 (hereinafter referred to as ‘the CPC’, for short).
20. Order XLVII Rule 1 of the CPC, reads as follows:
“ORDER XLVII : REVIEW
1. Application for review of judgement
(1) Any person considering himself
aggrieved-
(a) by a decree or order from which
an appeal is allowed, but from no appeal
has been preferred,
(b) by a decree or order from which
no appeal is allowed, or
(c) by a decision on a reference from
a Court of Small Causes,
20
and who, from the discovery of new and
important matter or evidence which, after
the exercise of due diligence was not within
his knowledge or could not be produced by him
at the time when the decree was passed or
order made, or on account of some mistake or
error apparent on the face of the record or
for any other sufficient reason, desires to
obtain a review of the decree passed or order
made against him, may apply for a review of
judgement to the Court which passed the
decree or made the order.
(2) A party who is not appealing from a
decree or order may apply for a review of
judgement notwithstanding the pendency of an
appeal by some other party except where the
ground of such appeal is common to the
applicant and the appellant, or when, being
respondent, he can present to the Appellate
Court the case on which he applies for the
review.
Explanation.- The fact that the decision
on a question of law on which the judgement
of the Court is based has been reversed or
modified by the subsequent decision of a
superior Court in any other case, shall not
be a ground for the review of such judgement.”
21. It will be noticed that in criminal matters, review
lies on an error apparent on the face of record being
established. However, it is necessary to notice what a
21
Constitution Bench of this Court laid down in P.N. Eswara
Iyer And Others v. Registrar, Supreme Court of India3:
“34. The rule [Ed.:Order 40, Rule 1 of
the Supreme Court Rules] , on its face,
affords a wider set of grounds for review for
orders in civil proceedings, but limits the
ground vis-a-vis criminal proceedings to
“errors apparent on the face of the record”.
If at all, the concern of the law to avoid
judicial error should be heightened when life
or liberty is in peril since civil penalties
are often less traumatic. So, it is
reasonable to assume that the framers of the
rules could not have intended a restrictive
review over criminal orders or judgments. It
is likely to be the other way about. Supposing
an accused is sentenced to death by the
Supreme Court and the “deceased” shows up in
court and the court discovers the tragic
treachery of the recorded testimony. Is the
court helpless to review and set aside the
sentence of hanging? We think not. The power
to review is in Article 137 and it is equally
wide in all proceedings. The rule merely
canalises the flow from the reservoir of
power. The stream cannot stifle the source.
Moreover, the dynamics of interpretation
depend on the demand of the context and the
lexical limits of the test. Here “record”
means any material which is already on record
3 (1980) 4 SCC 680
22
or may, with the permission of the court, be
brought on record. If justice summons the
Judges to allow a vital material in, it
becomes part of the record; and if apparent
error is there, correction becomes
necessitous.
35. The purpose is plain, the language
is elastic and interpretation of a necessary
power must naturally be expansive. The
substantive power is derived from Article 137
and is as wide for criminal as for civil
proceedings. Even the difference in
phraseology in the rule (Order 40 Rule 2)
must, therefore, be read to encompass the
same area and not to engraft an artificial
divergence productive of anomaly. If the
expression “record” is read to mean, in its
semantic sweep, any material even later
brought on record, with the leave of the
court, it will embrace subsequent events, new
light and other grounds which we find in Order
47 Rule 1, CPC. We see no insuperable
difficulty in equating the area in civil and
criminal proceedings when review power is
invoked from the same source.”
(Emphasis supplied)
22. In Suthendraraja Alias Suthenthira Raja Alias Santhan
and others v. State Through DSP/CBI, SIT, Chennai 4 ,
4 (1999) 9 SCC 323
23
referring to the judgement in P.N. Eswara Iyer (supra), it
was, inter alia, held that the scope of review was widened
considerably by the pronouncement.
23. In Haridas Das v. Usha Rani Banik (Smt.) and others5,
the question arose out of an appeal in the High Court,
wherein the High Court accepted the prayer for review. This
Court held as follows:
“13. … The parameters are prescribed in
Order 47 CPC and for the purposes of this lis,
permit the defendant to press for a rehearing
“on account of some mistake or error apparent
on the face of the records or for any other
sufficient reason”. The former part of the
rule deals with a situation attributable to
the applicant, and the latter to a jural
action which is manifestly incorrect or on
which two conclusions are not possible.
Neither of them postulate a rehearing of the
dispute because a party had not highlighted
all the aspects of the case or could perhaps
have argued them more forcefully and/or cited
binding precedents to the court and thereby
enjoyed a favourable verdict. This is amply
evident from the Explanation to Rule 1 of
Order 47 which states that the fact that the
decision on a question of law on which the
judgment of the court is based has been
reversed or modified by the subsequent
5 (2006) 4 SCC 78
24
decision of a superior court in any other
case, shall not be a ground for the review of
such judgment. Where the order in question is
appealable the aggrieved party has adequate
and efficacious remedy and the court should
exercise the power to review its order with
the greatest circumspection. …”
(Emphasis supplied)
24. Jain Studios Ltd. Through Its President v. Shin
Satellite Public Co. Ltd.6 involved an order passed by Judge
in Chambers. It was sought to review the order passed which
is reported in Shin Satellite Public Co. Ltd. v. Jain
Studios Ltd.7. In the Arbitration Petition which was the
main matter, there was a prayer to appoint an Arbitrator
by the review petitioner. The same was heard and rejected.
The learned Judge, in the said circumstances, held as
follows:
“11. So far as the grievance of the
applicant on merits is concerned, the learned
counsel for the opponent is right in
submitting that virtually the applicant
seeks the same relief which had been sought
at the time of arguing the main matter and had
6(2006) 5 SCC 501
7(2006) 2 SCC 628
25
been negatived. Once such a prayer had been
refused, no review petition would lie which
would convert rehearing of the original
matter. It is settled law that the power of
review cannot be confused with appellate
power which enables a superior court to
correct all errors committed by a subordinate
court. It is not rehearing of an original
matter. A repetition of old and overruled
argument is not enough to reopen concluded
adjudications. The power of review can be
exercised with extreme care, caution and
circumspection and only in exceptional
cases.”
(Emphasis supplied)
25. In State of West Bengal and others v. Kamal Sengupta
and another8, this Court, inter alia, held as follows:
“21. At this stage it is apposite to
observe that where a review is sought on the
ground of discovery of new matter or
evidence, such matter or evidence must be
relevant and must be of such a character that
if the same had been produced, it might have
altered the judgment. In other words, mere
discovery of new or important matter or
evidence is not sufficient ground for
review ex debito justitiae. Not only this,
the party seeking review has also to show that
such additional matter or evidence was not
8 (2008) 8 SCC 612
26
within its knowledge and even after the
exercise of due diligence, the same could not
be produced before the court earlier.”
(Emphasis supplied)
26. In Moran Mar Basselios Catholicos and another v. Most
Rev. Mar Poulose Athanasius and others9, the question, which
fell for consideration was, whether misconception of the
court about a concession by counsel, furnished a ground for
review. A court may pronounce a judgement on the basis that
a concession had been made by the counsel when none had been
made. The court may also misapprehend the terms of the
concession or the scope of a concession. When such
misconception underscores a judgment, whether review would
lie? Answering the said question, this Court proceeded to
hold as follows:
“36. … Patanjali Sastri, J. (as he then
was) sitting singly in the Madras High Court
definitely took the view in Rekhanti Chinna
Govinda Chettiyar v. S. Varadappa
Chettiar [AIR 1940 Mad. 17] that a
misconception by the court of a concession
9 AIR 1954 SC 526
27
made by the advocate or of the attitude taken
up by the party appears to be a ground
analogous to the grounds set forth in the
first part of the review section and affords
a good and cogent ground for review. The
learned Attorney-General contends that this
affidavit and the letters accompanying it
cannot be said to be part of “the record”
within the meaning of Order 47 Rule 1. We see
no reason to construe the word “record” in the
very restricted sense as was done by Denning,
L.J., in Rex v. Northumberland Compensation
Appeal Tribunal Ex parte Shaw [(1952) 2 KB
338 at pp. 351-52] which, was a case of
certiorari and include within that term only
the document which initiates the
proceedings, the pleadings and the
adjudication and exclude the evidence and
other parts of the record. Further, when the
error complained of is that the court assumed
that a concession had been made when none had
in fact been made or that the court
misconceived the terms of the concession or
the scope and extent of it, it will not
generally appear on the record but will have
to be brought before the court by way of an
affidavit as suggested by the Privy Council
as well as by this Court and this can only be
done by way of review. The cases to which
reference has been made indicate that the
misconception of the court must be regarded
as sufficient reason analogous to an error on
the face of the record. In our opinion it is
permissible to rely on the affidavit as an
additional ground for review of the
judgment.”
(Emphasis supplied)
28
27. It is pertinent to notice that this Court did not
confine the word “record” in the narrow sense in which it
was interpreted as in the case of an application of Writ
of Certiorari. This Court also sanctioned support being
drawn from an affidavit by the counsel in this regard, as
additional ground for review. Misconception by a court, was
found embraced within the scope of the expression
“sufficient reasons”.
28. Non-advertence to the particular provision of the
Statute, which was pertinent and relevant to the lis, was
held to be a ground to seek review. In Girdhari Lal Gupta
v. D.N. Mehta and another10, this Court held as follows:
“16. The learned counsel for the
respondent State urges that this is not a case
fit for review because it is only a case of
mistaken judgment. But we are unable to agree
with this submission because at the time of
the arguments our attention was not drawn
specifically to sub-section 23-C(2) and the
10 AIR 1971 SC 2162
29
light it throws on the interpretation of
sub-section (1).”
(Emphasis supplied)
29. Also, see in this regard, judgment in Deo Narain Singh
v. Daddan Singh and others11 where finding that this Court
had decided the case on the basis of a Statute, which was
inapplicable in the facts, review was granted.
30. In Sow Chandra Kante and another v. Sheikh Habib12, the
judgment involved a request to review the decision of this
Court refusing special leave to appeal in a matter, this
Court held as follows:
“… A review of a judgment is a serious
step and reluctant resort to it is proper only
where a glaring omission or patent mistake or
like grave error has crept in earlier by
judicial fallibility. A mere repetition,
through different counsel, of old and
overruled arguments, a second trip over
ineffectually covered ground or minor
mistakes of inconsequential import are
obviously insufficient. …”
(Emphasis supplied)
11 1986 (Supp) SCC 530
12(1975) 1 SCC 674
30
31. Two documents, which were part of the record, were
considered by the Judicial Commissioner to allow review by
the High Court. This Court, in appeal, in the judgement in
Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and
others13, found as follows:
“4. In the present case both the grounds
on which the review was allowed were hardly
grounds for review. That the two documents
which were part of the record were not
considered by the Court at the time of issue
of a writ under Article 226 cannot be a ground
for review especially when the two documents
were not even relied upon by the parties in
the affidavits filed before the Court in the
proceedings under Article 226. Again that
several instead of one writ petition should
have been filed is a mere question of
procedure which certainly would not justify
a review. We are, therefore, of the view that
the Judicial Commissioner acted without
jurisdiction in allowing the review. The
order of the Judicial Commissioner dated
December 7, 1967 is accordingly set aside and
the order dated May 25, 1965, is restored. The
appeal is allowed but without costs.”
(Emphasis supplied)
13 (1979) 4 SCC 389
31
32. M/s. Northern India Caterers (India) Ltd. v. Lt.
Governor of Delhi14 was a case which fell to be considered
under Article 137 of the Constitution of India. The relevant
discussion is found in paragraphs 8 and 9. They read as
follows:
“8. It is well-settled that a party is not
entitled to seek a review of a judgment
delivered by this Court merely for the
purpose of a rehearing and a fresh decision
of the case. The normal principle is that a
judgment pronounced by the Court is final,
and departure from that principle is
justified only when circumstances of a
substantial and compelling character make it
necessary to do so: Sajjan Singh v. State of
Rajasthan [AIR 1965 SC 845 : (1965) 1 SCR 933,
948 : (1965) 1 SCJ 377] . For instance, if the
attention of the Court is not drawn to a
material statutory provision during the
original hearing, the Court will review its
judgment: G.L. Gupta v. D.N. Mehta [(1971)
3 SCC 189 : 1971 SCC (Cri) 279 : (1971) 3 SCR
748, 750]. The Court may also reopen its
judgment if a manifest wrong has been done and
it is necessary to pass an order to do full
and effective justice: O.N.
Mohindroo v. Distt. Judge, Delhi [(1971) 3
SCC 5 : (1971) 2 SCR 11, 27] . Power to review
14(1980) 2 SCC 167
32
its judgments has been conferred on the
Supreme Court by Article 137 of the
Constitution, and that power is subject to
the provisions of any law made by Parliament
or the rules made under Article 145. In a
civil proceeding, an application for review
is entertained only on a ground mentioned in
Order 47 Rule 1 of the Code of Civil
Procedure, and in a criminal proceeding on
the ground of an error apparent on the face
of the record (Order 40 Rule 1, Supreme Court
Rules, 1966). But whatever the nature of the
proceeding, it is beyond dispute that a
review proceeding cannot be equated with the
original hearing of the case, and the
finality of the judgment delivered by the
Court will not be reconsidered except “where
a glaring omission or patent mistake or like
grave error has crept in earlier by judicial
fallibility”: Sow Chandra Kante v. Sheikh
Habib [(1975) 1 SCC 674 : 1975 SCC (Tax) 200
: (1975) 3 SCR 933].
9. Now, besides the fact that most of the
legal material so assiduously collected and
placed before us by the learned Additional
Solicitor General, who has now been entrusted
to appear for the respondent, was never
brought to our attention when the appeals
were heard, we may also examine whether the
judgment suffers from an error apparent on
the face of the record. Such an error exists
if of two or more views canvassed on the point
it is possible to hold that the controversy
can be said to admit of only one of them. If
33
the view adopted by the Court in the original
judgment is a possible view having regard to
what the record states, it is difficult to
hold that there is an error apparent on the
face of the record.”
33. Question in the said case arose under the Bengal
Finance (Sales Tax) Act, 1941. The case was based on new
material sought to be adduced by the Revenue to establish
that the transaction amounted to a sale.
34. The foundations, which underlie the review
jurisdiction, has been examined by this Court at some length
in the judgment in S. Nagaraj and others v. State of
Karnataka and another15:
“18. Justice is a virtue which transcends
all barriers. Neither the rules of procedure
nor technicalities of law can stand in its way.
The order of the Court should not be
prejudicial to anyone. Rule of stare decisis
is adhered for consistency but it is not as
inflexible in Administrative Law as in Public
Law. Even the law bends before justice. Entire
concept of writ jurisdiction exercised by the
higher courts is founded on equity and
15 1993 Supp (4) SCC 595
34
fairness. If the Court finds that the order was
passed under a mistake and it would not have
exercised the jurisdiction but for the
erroneous assumption which in fact did not
exist and its perpetration shall result in
miscarriage of justice then it cannot on any
principle be precluded from rectifying the
error. Mistake is accepted as valid reason to
recall an order. Difference lies in the nature
of mistake and scope of rectification,
depending on if it is of fact or law. But the
root from which the power flows is the anxiety
to avoid injustice. It is either statutory or
inherent. The latter is available where the
mistake is of the Court. In Administrative Law
the scope is still wider. Technicalities apart
if the Court is satisfied of the injustice then
it is its constitutional and legal obligation
to set it right by recalling its order. Here
as explained, the Bench of which one of us
(Sahai, J.) was a member did commit an error
in placing all the stipendiary graduates in the
scale of First Division Assistants due to
State's failure to bring correct facts on
record. But that obviously cannot stand in the
way of the Court correcting its mistake. Such
inequitable consequences as have surfaced now
due to vague affidavit filed by the State
cannot be permitted to continue.
19. Review literally and even judicially
means re-examination or re-consideration.
Basic philosophy inherent in it is the
universal acceptance of human fallibility.
35
Yet in the realm of law the courts and even
the statutes lean strongly in favour of
finality of decision legally and properly
made. Exceptions both statutorily and
judicially have been carved out to correct
accidental mistakes or miscarriage of
justice. Even when there was no statutory
provision and no rules were framed by the
highest court indicating the circumstances
in which it could rectify its order the courts
culled out such power to avoid abuse of
process or miscarriage of justice. In Raja
Prithwi Chand Lal Choudhury v. Sukhraj
Rai [AIR 1941 FC 1, 2 : 1940 FCR 78 : (1941)
1 MLJ Supp 45] the Court observed that even
though no rules had been framed permitting
the highest Court to review its order yet it
was available on the limited and narrow
ground developed by the Privy Council and the
House of Lords. The Court approved the
principle laid down by the Privy Council
in Rajunder Narain Rae v. Bijai Govind
Singh [(1836) 1 Moo PC 117 : 2 MIA 181 : 1 Sar
175] that an order made by the Court was final
and could not be altered:
“… nevertheless, if by misprision in
embodying the judgments, by errors have
been introduced, these Courts possess, by
Common law, the same power which the Courts
of record and statute have of rectifying
the mistakes which have crept in …. The
House of Lords exercises a similar power
of rectifying mistakes made in drawing up
its own judgments, and this Court must
36
possess the same authority. The Lords have
however gone a step further, and have
corrected mistakes introduced through
inadvertence in the details of judgments;
or have supplied manifest defects in order
to enable the decrees to be enforced, or
have added explanatory matter, or have
reconciled inconsistencies.”
Basis for exercise of the power was stated in
the same decision as under:
“It is impossible to doubt that the
indulgence extended in such cases is
mainly owing to the natural desire
prevailing to prevent irremediable
injustice being done by a Court of last
resort, where by some accident, without
any blame, the party has not been heard and
an order has been inadvertently made as if
the party had been heard.”
Rectification of an order thus stems from the
fundamental principle that justice is above
all. It is exercised to remove the error and
not for disturbing finality. When the
Constitution was framed the substantive
power to rectify or recall the order passed
by this Court was specifically provided by
Article 137 of the Constitution. Our
Constitution-makers who had the practical
wisdom to visualise the efficacy of such
provision expressly conferred the
substantive power to review any judgment or
order by Article 137 of the Constitution. And
clause (c) of Article 145 permitted this
Court to frame rules as to the conditions
37
subject to which any judgment or order may be
reviewed. In exercise of this power Order XL
had been framed empowering this Court to
review an order in civil proceedings on
grounds analogous to Order XLVII Rule 1 of the
Civil Procedure Code. The expression, ‘for
any other sufficient reason’ in the clause
has been given an expanded meaning and a
decree or order passed under misapprehension
of true state of circumstances has been held
to be sufficient ground to exercise the
power. Apart from Order XL Rule 1 of the
Supreme Court Rules this Court has the
inherent power to make such orders as may be
necessary in the interest of justice or to
prevent the abuse of process of Court. The
Court is thus not precluded from recalling or
reviewing its own order if it is satisfied
that it is necessary to do so for sake of
justice.”
(Emphasis supplied)
35. The decision in S. Nagaraj(supra), has been followed
in various judgements of this Court (See Lily Thomas and
others v. Union of India and others 16 ; Haryana State
Industrial Development Corporation Limited. v. Mawasi and
16 (2000) 6 SCC 224
38
others17; Kamlesh Verma v. Mayawati and others18; Usha Bharti
v. State of Uttar Pradesh and others19 and Vikram Singh
Alias Vicky Walia and another v. State of Punjab and
another20).
36. In Kamlesh Verma (supra), this Court in paragraph 20,
laid down its conclusions, which reads as follows:
“Summary of the principles
20. Thus, in view of the above, the
following grounds of review are maintainable
as stipulated by the statute:
20.1. When the review will be
maintainable:
(i) Discovery of new and important
matter or evidence which, after the
exercise of due diligence, was not within
knowledge of the petitioner or could not
be produced by him;
(ii) Mistake or error apparent on the
face of the record;
(iii) Any other sufficient reason.
17 (2012) 7 SCC 200
18 (2013) 8 SCC 320
19 (2014) 7 SCC 663
20 (2017) 8 SCC 518.
39
The words “any other sufficient reason” have
been interpreted in Chhajju
Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16
LW 37 : AIR 1922 PC 112] and approved by this
Court in Moran Mar Basselios
Catholicos v. Most Rev. Mar Poulose
Athanasius [AIR 1954 SC 526 : (1955) 1 SCR
520] to mean “a reason sufficient on grounds
at least analogous to those specified in the
rule”. The same principles have been
reiterated in Union of India v. Sandur
Manganese & Iron Ores Ltd. [(2013) 8 SCC 337:
JT (2013) 8 SC 275]
20.2. When the review will not be
maintainable:
(i) A repetition of old and overruled
argument is not enough to reopen concluded
adjudications.
(ii) Minor mistakes of inconsequential
import.
(iii) Review proceedings cannot be
equated with the original hearing of the
case.
(iv) Review is not maintainable unless
the material error, manifest on the face
of the order, undermines its soundness or
results in miscarriage of justice.
(v) A review is by no means an appeal in
disguise whereby an erroneous decision is
reheard and corrected but lies only for
patent error.
40
(vi) The mere possibility of two views
on the subject cannot be a ground for
review.
(vii) The error apparent on the face of
the record should not be an error which has
to be fished out and searched.
(viii) The appreciation of evidence on
record is fully within the domain of the
appellate court, it cannot be permitted to
be advanced in the review petition.
(ix) Review is not maintainable when the
same relief sought at the time of arguing
the main matter had been negatived.”
37. In a very recent judgment, in fact, relied upon by the
Union of India, viz., Mukesh (supra), in a review petition
in a criminal appeal, this Court reiterated that a review
is not rehearing of an original matter. Even establishing
another possible view would not suffice [See Vikram Singh
(supra), which was relied upon].
38. The anxiety of this Court that the consideration of
rendering justice remain uppermost in the mind of the Court,
has led to the Constitution Bench judgement in Rupa Ashok
41
Hurra v. Ashok Hurra and another21. It is in the said case
that the concept of a curative petition was devised to
empower a litigant to seek a reconsideration of a matter
wherein the review petition also is unsuccessful. Certain
steps have been laid down in this regard which stand
incorporated in The Supreme Court Rules, 2013 [in Part IV
Order XLVIII thereof].
39. Undoubtedly, any error to be an error on the face of
the record, cannot be one which has to be established by
a long drawn out process of reasoning on points where there
may conceivably be two opinions or if the error requires
lengthy and complicated arguments to establish it, a Writ
of Certiorari would not lie (See Satyanarayan Laxminarayan
Hegde and others v. Mallikarjun Bhavanappa Tirumale22 ).
This principle is equally applicable to a review petition
also.
21 (2002) 4 SCC 388
22 AIR 1960 SC 137
42
40. On a conspectus of the above decisions, the following
conclusions appeared to be inevitable and they also provide
the premise for review:
Justice above all. While a review petition has not
been understood as an appeal in disguise and a mere
erroneous decision may not justify a review, a decision
which betrays an error which is apparent, does entitle
the court to exercise its jurisdiction under Article
137 of the Constitution. The founding fathers were
conscious that this Court was the final Court. There
are two values, which in any system of law, may collide.
On the one hand, recognizing that men are not
infallible and the courts are manned by men, who are
prone to err, there must be a safety valve to check the
possibility of grave injustice being reached to a
litigant, consequent upon an error, which is palpable
or as a result of relevant material despite due
diligence by a litigant not being made available or
other sufficient reason. The other value which is
43
ever-present in the mind of the law giver, is, there
must be finality to litigation. Be it judgments of a
final court, if it becomes vulnerable to
indiscriminate reopening, unless a strong ground
exists, which itself is based on manifest error
disclosed by the judgment or the other two grounds
mentioned in Order XLVII of the CPC in a civil matter,
it would spawn considerable inequity.
41. It must be noticed that the principle well-settled in
regard to jurisdiction in review, is that a review is not
an appeal in disguise. The applicant, in a review, is, on
most occasions, told off the gates, by pointing out that
his remedy lay in pursuing an appeal. In the case of a
decision rendered by this Court, it is to be noticed that
the underpinning based on availability of an appeal, is not
available as this Court is the final Court and no appeal
lies.
44
42. It is no doubt true that the Supreme Court Rules, 2013,
certain powers are conferred on the Registrar as also on
the Judge holding Court in Chambers and appeals, indeed,
are provided in respect of certain orders passed by the
Registrar.
43. The fact that no appeal lies from the judgment of this
Court may not, however, result in the jurisdiction of this
Court under Article 137 of the Constitution being enlarged.
However, when the Court is invited to exercise its power
of review, this aspect may also be borne in mind, viz., that
unlike the other courts from which an appeal may be provided
either under the Constitution or other laws, or by special
leave under Article 136 of the Constitution, no appeal lies
from the judgment of this Court, and it is in that sense,
the final Court. The underlying assumption for the
principle that a review is not an appeal in disguise, being
that the decision is appealable, is really not available
in regard to a decision rendered by this Court, is all that
is being pointed out.
45
44. A review petition is maintainable if the impugned
judgment discloses an error apparent on the face of the
record. Unlike a proceeding in Certiorari jurisdiction,
wherein the error must not only be apparent on the face of
the record, it must be an error of law, which must be
apparent on the face of the record, for granting review
under Article 137 of the Constitution read with Order XLVII
Rule 1 of the CPC, the error can be an error of fact or of
law. No doubt, it must be apparent on the face of record.
Such an error has been described as a palpable error or
glaring omission. As to what constitutes an error apparent
on the face of record, is a matter to be found in context
of the facts of each case. It is worthwhile to refer to the
following discussion in this regard by this Court in Hari
Vishnu Kamath v. Ahmad Ishaque and Others
23, wherein, this
Court held as follows:
“23. It may therefore be taken as
settled that a writ of certiorari could be
issued to correct an error of law. But it is
23 AIR 1955 SC 233
46
essential that it should be something more
than a mere error; it must be one which must
be manifest on the face of the record. The
real difficulty with reference to this
matter, however, is not so much in the
statement of the principle as in its
application to the facts of a particular
case. When does an error cease to be mere
error, and become an error apparent on the
face of the record? Learned counsel on either
side were unable to suggest any clear-cut
rule by which the boundary between the two
classes of errors could be demarcated.
Mr Pathak for the first respondent
contended on the strength of certain
observations of Chagla, C.J. in Batuk K.
Vyas v. Surat Municipality [AIR 1953 Bom
133] that no error could be said to be
apparent on the face of the record if it was
not self-evident, and if it required an
examination or argument to establish it. This
test might afford a satisfactory basis for
decision in the majority of cases. But there
must be cases in which even this test might
break down, because judicial opinions also
differ, and an error that might be considered
by one Judge as self-evident might not be so
considered by another. The fact is that what
is an error apparent on the face of the record
cannot be defined precisely or exhaustively,
there being an element of indefiniteness
inherent in its very nature, and it must be
left to be determined judicially on the facts
of each case.”
(Emphasis supplied)
47
45. The view of this Court, in the decision in Girdhari Lal
Gupta (supra) as also in Deo Narain Singh (supra), has been
noticed to be that if the relevant law is ignored or an
inapplicable law forms the foundation for the judgement,
it would provide a ground for review. If a court is oblivious
to the relevant statutory provisions, the judgment would,
in fact, be per incuriam. No doubt, the concept of per
incuriam is apposite in the context of its value as the
precedent but as between the parties, certainly it would
be open to urge that a judgment rendered, in ignorance of
the applicable law, must be reviewed. The judgment, in such
a case, becomes open to review as it would betray a clear
error in the decision.
46. As regards fresh material forming basis for review, it
must be of such nature that it is relevant and it undermines
the verdict. This is apart from the requirement that it
could not be produced despite due diligence.
47. The dismissal of a special leave petition takes place
at two levels. In the first place, the Court may dismiss
48
or reject a special leave petition at the admission stage.
Ordinarily, no reasons accompany such a decision. In
matters where a special leave petition is dismissed after
notice is issued, also reasons may not be given ordinarily.
Several elements enter into the consideration of this Court
where a special leave petition is dismissed. The task for
a review applicant becomes formidable as reasons are not
given. An error apparent on the face of the record becomes
difficult to establish. In a writ petition where pleadings
are exchanged and reasons are given in support of the
verdict, a self-evident error is detected without much
argument. No doubt, a Court, in review, does not
reappreciate and correct a mere erroneous decision. That
reappreciation is tabooed, is not the same as holding that
a Court will not appreciate the case as reflected in the
pleadings and the law by which the Court is governed.
48. In this case, the short point, which this Court is
called upon to consider, is the effect of the impugned
judgment not dealing with a binding decision rendered by
49
a Constitution Bench which was relied upon by the
petitioners in Writ Petition (Criminal) No. 298 of 2018 and
rendered in Lalita Kumari (supra). It is apposite that I
set out what this Court, speaking through the aforesaid
Constitution Bench judgment, has laid down in paragraph
120:
“Conclusion/Directions
120. In view of the aforesaid discussion,
we hold:
120.1. The registration of FIR is
mandatory under Section 154 of the Code, if
the information discloses commission of a
cognizable offence and no preliminary
inquiry is permissible in such a situation.
120.2. If the information received does
not disclose a cognizable offence but
indicates the necessity for an inquiry, a
preliminary inquiry may be conducted only to
ascertain whether cognizable offence is
disclosed or not.
120.3. If the inquiry discloses the
commission of a cognizable offence, the FIR
must be registered. In cases where
preliminary inquiry ends in closing the
complaint, a copy of the entry of such closure
50
must be supplied to the first informant
forthwith and not later than one week. It must
disclose reasons in brief for closing the
complaint and not proceeding further.
120.4. The police officer cannot avoid his
duty of registering offence if cognizable
offence is disclosed. Action must be taken
against erring officers who do not register
the FIR if information received by him
discloses a cognizable offence.
120.5. The scope of preliminary inquiry is
not to verify the veracity or otherwise of the
information received but only to ascertain
whether the information reveals any
cognizable offence.
120.6. As to what type and in which cases
preliminary inquiry is to be conducted will
depend on the facts and circumstances of each
case. The category of cases in which
preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family
disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal
delay/laches in initiating criminal
prosecution, for example, over 3 months'
delay in reporting the matter without
satisfactorily explaining the reasons for
delay.
The aforesaid are only illustrations and
not exhaustive of all conditions which may
warrant preliminary inquiry.
51
120.7. While ensuring and protecting the
rights of the accused and the complainant, a
preliminary inquiry should be made
time-bound and in any case it should not
exceed 7 days. The fact of such delay and the
causes of it must be reflected in the General
Diary entry.
120.8. Since the General Diary/Station
Diary/Daily Diary is the record of all
information received in a police station, we
direct that all information relating to
cognizable offences, whether resulting in
registration of FIR or leading to an inquiry,
must be mandatorily and meticulously
reflected in the said diary and the decision
to conduct a preliminary inquiry must also be
reflected, as mentioned above.”
(Emphasis supplied)
49. It is their contention, therefore, that the writ
petition came to be clubbed along with other writ petitions.
This Court proceeded to undertake judicial review of the
processes which led to the decision to purchase 36 planes
going back on the earlier decision which was to purchase
136 planes.
50. According to the petitioners, therefore, this Court
committed a clear error in not focusing on the relief sought
in their writ petition which was based on the Constitution
52
Bench of this Court which was binding on a Bench of lesser
strength (three). All this Court is being asked to do,
according to the petitioners, having regard to the law
binding on it, is to direct the registration of the FIR.
There is also relief sought to submit reports in the same.
51. The procedure, which is to be adopted by the
authorities, has been elaborated upon. There can be no
escape from the mandatory procedure laid down by this Court.
52. Where a party institutes a proceeding, if the
proceeding is of a civil nature, there would be a cause of
action. There would be reliefs sought on the basis of the
cause of action. Materials are produced both in support and
against the claim. The Court thereafter renders a judgement
either accepting the case or rejecting the case. When the
Court rejects the case, it necessarily involves refusing
to grant the relief sought for by the plaintiff/petitioner.
It may transpire that the petitioner may not press for
certain reliefs. The Court may, after applying its mind to
the case, find that the petitioner is not entitled to the
53
relief and decline the prayers sought. It may also happen
that the court does refer to the reliefs sought but
thereafter does not undertake any discussion regarding the
case for the relief sought and proceeds to non-suit the
party. It is clear that in this case, it is the last aspect
which is revealed by the judgment sought to be reviewed.
53. A judgment may be silent in regard to a relief which
is sought by a party. It is apposite, in this regard, to
notice Section 11 of the CPC. If a decree is silent, as
regards any relief which is claimed by the plaintiff,
Explanation V to Section 11 declares that the relief must
be treated as declined. The Explanation reads as follows:
“Section 11, Explanation V.- Any relief
claimed in the plaint, which is not expressly
granted by the decree, shall, for the
purposes of this section, be deemed to have
been refused.”
54. No doubt, if the relief is expressly refused, then
also, the matter would become res judicata. It is,
therefore, of vital importance that when a case is decided,
54
the Court considers the claim and the relief sought, applies
the Statute which is applicable and the law which is laid
down particularly when it is by a Constitution Bench in
deciding the case. Just as, in the case of a judgement, where
the applicable Statute, not being applied, would result in
a judgment which becomes amenable to be corrected in review,
there can be no reason why when a binding judgment of this
Court, which is enlisted by the party, is ignored, it should
have a different consequence. In fact, since a review under
Article 137 of the Constitution, in a civil matter, is to
be exercised, based on what is contained in Order XLVII Rule
1 of the CPC, the Explanation therein, may shed some light.
The Explanation which was inserted by the Act of 1976,
following the recommendations of the Law Commission of
India, in its 54th Report, declares that the law is laid down
by a superior court reversing an earlier decision, on a
question of law, will not be a ground for the review of a
judgment.
55
55. The Law Commission, in fact, in the said Report
reasoned that adopting the view taken by the Kerala High
Court in the decision in Thadikulangara Pylee's son
Pathrose v. Ayyazhiveettil Lakshmi Amma’s son Kuttan and
others24 that a later judgment would amount to discovery of
new and important matter, and in any case an error on the
face of the record, would keep alive the possibility of
review indefinitely. This impliedly would mean that when
a court decides a case, it must follow judgments which are
binding on it. This is not to say that a smaller Bench of
this Court, if it entertains serious doubts about the
correctness of an earlier judgment, may not consider
referring the matter to a larger Bench. However, as long
as it does not undertake any such exercise, it cannot refuse
to follow the judgment and that too of a Constitution Bench.
Any such refusal to follow the decision binding on it, would
undoubtedly disclose an error which would be palpable being
self-evident.
24 AIR 1969 KER 186
56
56. In this case, when this Court rendered the judgment,
sought to be reviewed, the judgment of the Constitution
Bench in Lalita Kumari (supra), undoubtedly, held the field
having been rendered on 12.11.2013. The said judgement was,
indeed, pressed before the Court.
57. To put it in other words, having regard to the relief
sought by the petitioners, the dismissal of the writ
petition would be, according to petitioners, in the teeth
of a binding judgment of this Court. Just as in the case
of a binding Statute being ignored and giving rise to the
right to file a review, neither on logic nor in law would
the refusal to follow a binding judgement, qualify for a
different treatment if a review is filed. Be it a civil or
a criminal matter, an error apparent on the face of the
record, furnishes a ground for review.
58. This is not a case where an old argument is being
repeated in the sense that after it has been considered and
rejected, it is re-echoed in review. It is an argument which
was undoubtedly pressed in the original innings. It is not
57
the fault of the party if the court chose not even to touch
upon it. No doubt, it may be different in a case where a
ground or relief sought is ignored and it is found justified
otherwise. But where a ground, which is based on principles
laid down by a Constitution Bench of this Court, is not dealt
with at all and it is complained of in review, it will rob
the review jurisdiction of the very purpose it is intended
to serve, if the complaint otherwise meritorious, is not
heeded to.
59. A learned Single Judge, in an arbitration request,
turned down a plea to appoint a person as Arbitrator. In
review, the request was sought to be resurrected. It was
in this context that a learned Single Judge of this Court,
sitting in Chambers, in the decision reported in Jain
Studios Ltd. (supra), laid down that once such a relief was
refused in the main matter, no review petition would lie.
However, following the said judgment, this Court, in the
decision reported in Kamlesh Verma (supra), summarising the
principle, came to declare in paragraph 20.2(ix), that
58
review is not maintainable when the same relief sought at
the time of arguing the main matter, has been negatived.
60. With regard to the said principle, the context in which
it was laid down in the decision by a learned Single Judge
in Jain Studios Ltd. (supra), has already been noted. The
said principle, as stated, cannot be treated as one that
is cast in stone to apply irrespective of facts.
Illustrations come to the fore where it is better related
to the factual context and not as an immutable axiom not
admitting of exceptions. Take a case where a Writ of
Mandamus is sought for after a demand is made. The demand
is placed on record and is not even controverted. In the
main proceeding, Mandamus is refused on the ground that
there is no demand. It amounts to denial of relief. But the
verdict is clearly afflicted with palpable error, and if
the complaint is made in a review about the denial of relief
on a ground which is patently untenable, certainly, a review
would lie. There can be many other examples where the denial
of relief is palpably wrong and self-evident. It is
59
different, if on an appreciation of evidence or applying
the law, and where two views are possible, relief is
refused. In fact, broadly, denial of relief can occur in
two situations. There are situations where the grant of
relief itself is discretionary. There are other situations
where if a certain set of facts are established, the
plaintiff/appellant cannot be told off the gates. A
defendant, who appeals against a time-barred suit being
decreed, establishes that a suit is time-barred, and the
facts, as stated in the judgment itself, unerringly point
to such premise. If still, the Appellate Court decrees the
suit and denies relief to the defendant/appellant, can it
be said that a review will not lie? The answer can only be
that a review will lie.
61. To test the hypothesis that on the facts this Court was
wrong and manifestly so in declining in not following the
dicta of the Constitution Bench in Lalita Kumari (supra),
a reverse process of reasoning can be employed to appreciate
the matter further. Can it be said that refusing to follow
60
a Constitution Bench, laying down the response of the
Officers to a complaint alleging the commission of a
cognizable offence, has not been observed in its breach?
If the review petition, in other words, is rejected, in
substance this Court would be upholding its judgment which
when placed side-by-side with the pronouncement of the
Constitution Bench in Lalita Kumari (supra), the two
judgments cannot be squared. It must co-exist despite the
patent departure, the impugned judgment manifests from the
law laid down by the Constitution Bench. But that being
impossible, the Constitution Bench must prevail and the
impugned judgment stand overwhelmed to the extent it is
inconsistent. It may be true that in view of the fact that
four writ petitions were heard together, this Court has
proceeded to focus on the merits of the matters itself
undoubtedly from the standpoint of the limited judicial
review which it could undertake in a matter of the nature
in question. On the basis of the said exercise, the Court
has concluded that there were no materials for the Court
to interfere. But this is a far cry from holding that it
61
will not follow the mandate of the Constitution Bench of
this Court in regard to the steps to be undertaken by the
Officer on receipt of a complaint purporting to make out
the commission of a cognizable offence. This Court may
declare that it was non-suiting the petitioners seeking
judicial review, having regard to the absence of materials
which would have justified holding the award of the contract
in question vulnerable. It would not mean that it is either
precluded or that it was not duty-bound to still direct
that the law laid down by the Constitution Bench in Lalita
Kumari (supra) be conformed to.
62. If the complaint of the petitioner does make out the
commission of the cognizable offence and FIR is to be
registered and matter investigated, it will be no answer
to suggest that this Court, has approved of the matter in
judicial review proceedings under Article 32 of the
Constitution and making it clear that entire exercise must
be viewed from the prism of the limited judicial review the
Court undertakes in such proceedings and this Court would
62
end up paying less than lip service to the law laid down
by the Constitution Bench in Lalita Kumari (supra).
63. As far as the judicial review of the award of the
contract is concerned, apart from the fact that a review
does not permit reappreciation of the materials, there is
the aspect of the petitioner seeking judicial review
approaching the court late in the day. There is also the
aspect relating to the court’s jurisdiction not extending
to permit it to sit in judgment over the wisdom of the
Government of the day, particularly in matters relating to
purchase of the goods involved in this case. Therefore, in
regard to review, sought in relation to the findings
relating to the judicial review, they cannot be found to
be suffering from palpable errors.
64. Though, the stand of the Government of India has been
noticed, which is the second respondent in Writ Petition
(Criminal) No. 298 of 2018, the party, which has a say in
the matter or rather a duty in the matter in terms of the
law laid down by this Court in Lalita Kumari (supra),
63
is the first respondent, viz., Central Bureau of
Investigation (CBI) before which petitioners have moved the
Exhibit P1-complaint. It is quite clear that the first
respondent, the premiere investigating agency in the
country, is expected to act completely independent of the
Government of the day. The Government of India cannot speak
on behalf of the first respondent. Whatever that be, the
fact remains that a decision in terms of what is laid down
in Lalita Kumari (supra), is to be taken.
65. One objection, which has apparently weighed
with my learned and noble Brother, is that, this Court,
having dealt with the merits of the case, there could be
no occasion for directing the compliance in terms of Lalita
Kumari (supra) by the first respondent. Reasoning of the
Court has been noticed. This Court has approached the matter
proclaiming that it was doing so in the context of somewhat
constricted power of judicial review. It is further made
clear that the Court found that it is neither appropriate
nor is it within the experience of this Court to step into
64
the arena of what is technically feasible. This Court also
did not find any substantial material on record to show it
to be a case of commercial favouritism to any party by the
Indian Government as the option to choose the IOP did not
rest with the Indian Government. In the concluding
paragraph, it was clearly mentioned that the Court’s views
were primarily from the standpoint of exercise of
jurisdiction under Article 32 of the Constitution, which
was invoked in this case.
66. The question would, therefore arise, whether in such
circumstances, the relief sought in Writ Petition
(Criminal) No. 298 of 2018, seeking compliance with Lalita
Kumari (supra), was wrongly declined. Differently put, the
question would arise whether the petitioners, having
participated in the proceedings and inviting the Court to
pronounce on the merits as well and cannot persuade the
Court to take a different view on the merits, could still
ask the Court to find an error and that too a grave error
65
in not heeding to the prayer in Writ Petition (Criminal)
No. 298 of 2018.
67. As noticed earlier, it is one thing to say that with
the limited judicial review, available to the Court, it did
not find merit in the case of the petitioners regarding
failure to follow the DPP, presence of over-pricing,
violation of Offset Guidelines to favour a party, and
another thing to direct action on a complaint in terms of
the law laid down by this Court. It is obvious that this
Court was not satisfied with the material which was placed
to justify a decision in favour of the petitioners. It is
also apparent that the Court has reminded itself of the fact
that it was neither appropriate nor within the experience
of the Court to step into the arena. It is equally
indisputable that the entire findings are to be viewed from
the standpoint of the nature of the jurisdiction it
exercised. There are no such restrictions and limitations
on an Officer investigating a case under the law. Present
a case, making out the commission of cognizable offence,
66
starting with the lodging of the FIR after, no doubt, making
a preliminary inquiry where it is necessary, the fullest
of amplitude of powers under the law, no doubt, are
available to the Officer. The discovery of facts by Officer
carrying out an investigation, is completely different from
findings of facts given in judicial review by a Court. The
entire proceedings are completely different.
68. In the impugned judgment, under the heading “Offsets”,
there is, at paragraph 28, reference to the complaint that
favouring the Indian Business Group, has resulted in an
offence being committed under the Prevention of Corruption
Act. This Court extracted Clause (4.3) of the Offset Clause
which provides that OEM/Vendor, Tier-1 Sub-Vendor will be
free to select the Indian Offset Partner for implementing
the offset obligation provided it has not been barred from
doing business with the Ministry of Defence. This Court
dealt with the same contentions in paragraph 32 of the
impugned judgment, which reads as follows:
67
“32. It is no doubt true that the
company, Reliance Aerostructure Ltd., has
come into being in the recent past, but the
press release suggests that there was
possibly an arrangement between the parent
Reliance Company and Dassault starting from
the year 2012. As to what transpired between
the two corporates would be a matter best left
to them, being matters of their commercial
interests, as perceived by them. There has
been a categorical denial, from every side,
of the interview given by the former French
President seeking to suggest that it is the
Indian Government which had given no option
to the French Government in the matter. On the
basis of materials available before us, this
appears contrary to the clause in DPP 2013
dealing with IOPs which has been extracted
above. Thus, the commercial arrangement, in
our view, itself does not assign any role to
the Indian Government, at this stage, with
respect to the engagement of IOP. Such matter
is seemingly left to the commercial decision
of Dassault. That is the reason why it has
been stated that the role of the Indian
Government would start only when the
vendor/OEM submits a formal proposal, in the
prescribed manner, indicating details of
IOPs and products for offset discharge. As
far as the role of HAL, insofar as the
procurement of 36 aircrafts is concerned,
there is no specific role envisaged. In fact,
the suggestion of the Government seems to be
that there were some contractual problems and
Dassault was circumspect about HAL carrying
out the contractual obligation, which is also
stated to be responsible for the
non-conclusion of the earlier contract.”
68
69. The very first statement in paragraph 32 would appear
to point to the Court taking into account Press Release
suggesting that there was possibly an arrangement between
the parent Reliance Company and Dassault starting from the
year 2012. It is stated as to what transpired between the
two Corporates would be best left to them. In this regard,
in the Review Petition, it is pointed out that this Court
has grossly erred in confusing Reliance Industries of which
Mr. Mukesh Ambani is the Chairman with that of Reliance
Infrastructure of which Mr. Anil Ambani is the Chairman.
It is further contended that Mr. Anil Ambani’s Reliance
Infrastructure is the parent company of Reliance
Aerostructure Limited (RAL), which is the beneficiary of
the Offset Contract, and there is no possibility of any
arrangement between Reliance Infrastructure Limited with
Dassault Aviation in 2012. There appears to be considerable
merit in the case of the petitioners that in this regard,
this Court had fallen into clear error that there was
possibly an arrangement between the parent Reliance Company
and Dassault dated back to the year 2012. The parent
69
Reliance Company which was referred in the judgment is
Reliance Industries which is a completely different
corporate body from Reliance Infrastructure which appears,
according to the petitioners, to be the parent company of
RAL. Thereafter, there is reference to the denial of the
interview by the Former French President. It is further
noted that on the basis of the materials, the commercial
arrangement does not assign any role to the Indian
Government at this stage with reference to the arrangement
of the IOP. After making certain observations about HAL and
role of the Indian Government starting only when the
Vendor/OEM submitted a formal proposal, this Court went on
to make the observation contained in paragraph 33 which has
already been extracted.
70. From the standpoint of the jurisdiction in judicial
review proceedings and under Article 32 of the
Constitution, as also absence of any substantial material
to show to be a case of commercial favouritism, it may be
true that the findings other than which has been referred
70
to may not disclose a palpable error. This Court’s lack of
experience of what is technically feasible, as noted by the
Court, has weighed with it.
POWERS OF POLICE OFFICER WIDER AND DIFFERENT FROM THAT OF
WRIT COURT
71. The ‘statutory right of the police to investigate about
a cognizable offence’ is well settled. In King-Emperor v.
Nazir Ahmad Khwaja25, the Privy Council has, inter alia,
held as follows:
“In India as has been shown there is a
statutory right on the part of the police to
investigate the circumstances of an alleged
cognizable crime without requiring any
authority from the judicial authorities, and
it would as their Lordships think, be an
unfortunate result if it should be held
possible to interfere with those statutory
rights by an exercise of the inherent
jurisdiction of the court. The functions of
the judiciary and the police are
complementary not overlapping and the
combination of individual liberty with a due
observance of law and order is only to be
obtained by leaving each to exercise its own
function, always of course subject to the
right of the Court to intervene in an
25 AIR 1945 PC 18
71
appropriate case when moved under S. 491 of
the C.P.C. to give directions in the nature
of habeas corpus. In such a case as the
present, however, the Courts functions begin
when a charge is preferred before it and not
until then. …”
72. Following the same, this Court in M.C. Abraham and
another v. State of Maharashtra and others 26 , held as
follows:
“13. This Court held in the case
of J.A.C. Saldanha [(1980) 1 SCC 554 : 1980
SCC (Cri) 272] that there is a clear-cut and
well-demarcated sphere of activity in the
field of crime detection and crime
punishment. Investigation of an offence is
the field exclusively reserved by the
executive through the police department, the
superintendence over which vests in the State
Government. It is the bounden duty of the
executive to investigate, if an offence is
alleged, and bring the offender to book. Once
it investigates and finds an offence having
been committed, it is its duty to collect
evidence for the purpose of proving the
offence. …”
73. The Police Officer is endowed with wide powers. Nothing
that constricted or limited this Court in the impugned
26 (2003) 2 SCC 649
72
judgment, applies to an Officer who has undertaken an
investigation into the commission of a cognizable offence.
In fact, in this case, the first respondent-CBI is the
premiere investigation agency of the country. It is
equipped to undertake all forms of investigations, be it
technical or otherwise. The factors which concerned this
Court can be recapitulated to bring out the true role of
an Investigator. This Court held, it is neither appropriate
nor within the Court’s experience to step into what is
technical feasible or not. No such limitation applies to
an Investigator of a cognizable offence. What is important
is that it is the duty of the Investigating Officer to
collect all material, be it technical or otherwise, and
thereafter, submit an appropriate report to the court
concerned, be it a final report or challan depending upon
the materials unearthed. This Court relied on absence of
substantial material. This is not a restriction on the
Investigating Officer. Far from it, the very purpose of
conducting an investigation on a complaint of a cognizable
offence being committed, is to find material. There can be
73
no dispute that the first respondent is the premiere
investigating agency in the country which assumedly employs
state of the art techniques of investigation.
Professionalism of the highest quality, which embraces
within it, uncompromising independence and neutrality, is
expected of it. Again, the restriction which underlies the
impugned judgment is the limited scope of judicial review
and also the writ jurisdiction under Article 32 of the
Constitution. It is clear as a mountain stream that both
these considerations are totally irrelevant for an Officer
who has before him a complaint making out the commission
of a cognizable offence.
74. However, the directions contained in paragraph 120 of
the Constitution Bench decision in Lalita Kumari (supra)
must be further appreciated. In this case, the petitioners
in Writ Petition (Criminal) No. 298 of 2018, have indeed
moved an elaborate written complaint before the first
respondent-CBI. The complaint that is made, attempts to
make out the commission of a cognizable offences under the
74
Prevention of Corruption Act. Paragraph 120.1 of Lalita
Kumari (supra), declares registration of FIR is mandatory
if information discloses commission of a cognizable
offence. The Constitution Bench debarred any preliminary
inquiry in such a situation. It is apposite that paragraph
120.5 is noticed at this stage. This Court held that the
scope of the preliminary inquiry is not to verify the
veracity or otherwise of the information received but it
is only to ascertain whether the information reveals any
cognizable offence. Coming back to paragraph 120.2, it is
laid down by this Court that if the information does not
disclose a cognizable offence but indicates the necessity
for an inquiry, a preliminary inquiry may be conducted only
to ascertain whether cognizable offence is disclosed or
not. It is beyond dispute that the offences which are
mentioned in the complaint filed by the petitioners in Writ
Petition (Criminal) No. 298 of 2018 are cognizable
offences. Again, coming back to paragraph 120.3 in Lalita
Kumari (supra) read with paragraphs 120.2 and 120.5, if the
inquiry discloses commission of a cognizable offence, the
75
FIR must be registered. Where, however, the preliminary
inquiry ends in closing the complaint, the first informant
must be informed in writing forthwith and not later than
a week. That apart, reasons, in brief, must also be
disclosed.
75. Paragraph 120.6 deals with the type of cases in which
preliminary inquiry may be made. Corruption cases are one
of the categories of cases where a preliminary inquiry may
be conducted. Also, cases where there is abnormal delay or
laches in initiating criminal prosecution, for example over
three months delay in reporting the matter without
satisfactorily explaining the reasons for the delay. As can
be noticed from paragraph 120.6, medical negligence cases,
matrimonial disputes, commercial offences are also cases
in which a preliminary inquiry may be made. In order to
appreciate the scope of paragraph 120.6, it is necessary
to advert to paragraphs 115 to 119, which read as follows:
“Exceptions
115. Although, we, in unequivocal
terms, hold that Section 154 of the Code
76
postulates the mandatory registration of
FIRs on receipt of all cognizable offences,
yet, there may be instances where preliminary
inquiry may be required owing to the change
in genesis and novelty of crimes with the
passage of time. One such instance is in the
case of allegations relating to medical
negligence on the part of doctors. It will be
unfair and inequitable to prosecute a medical
professional only on the basis of the
allegations in the complaint.
116. In the context of medical
negligence cases, in Jacob Mathew [Jacob
Mathew v. State of Punjab, (2005) 6 SCC 1:
2005 SCC (Cri) 1369], it was held by this
Court as under: (SCC p. 35, paras 51-52)
“51. We may not be understood as
holding that doctors can never be
prosecuted for an offence of which
rashness or negligence is an essential
ingredient. All that we are doing is to
emphasise the need for care and caution
in the interest of society; for, the
service which the medical profession
renders to human beings is probably the
noblest of all, and hence there is a need
for protecting doctors from frivolous or
unjust prosecutions. Many a complainant
prefer recourse to criminal process as
a tool for pressurising the medical
professional for extracting uncalled
for or unjust compensation. Such
77
malicious proceedings have to be guarded
against.
52. Statutory rules or executive
instructions incorporating certain
guidelines need to be framed and issued
by the Government of India and/or the
State Governments in consultation with
the Medical Council of India. So long as
it is not done, we propose to lay down
certain guidelines for the future which
should govern the prosecution of doctors
for offences of which criminal rashness
or criminal negligence is an ingredient.
A private complaint may not be
entertained unless the complainant has
produced prima facie evidence before the
court in the form of a credible opinion
given by another competent doctor to
support the charge of rashness or
negligence on the part of the accused
doctor. The investigating officer
should, before proceeding against the
doctor accused of rash or negligent act
or omission, obtain an independent and
competent medical opinion preferably
from a doctor in government service,
qualified in that branch of medical
practice who can normally be expected to
give an impartial and unbiased opinion
applying the Bolam [Bolam v. Friern
Hospital Management Committee, (1957) 1
WLR 582 : (1957) 2 All ER 118] test to
the facts collected in the
investigation. A doctor accused of
78
rashness or negligence, may not be
arrested in a routine manner (simply
because a charge has been levelled
against him). Unless his arrest is
necessary for furthering the
investigation or for collecting
evidence or unless the investigating
officer feels satisfied that the doctor
proceeded against would not make himself
available to face the prosecution unless
arrested, the arrest may be withheld.”
117. In the context of offences relating
to corruption, this Court in P.
Sirajuddin [P. Sirajuddin v. State of
Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240]
expressed the need for a preliminary inquiry
before proceeding against public servants.
118. Similarly, in Tapan Kumar
Singh [CBI v. Tapan Kumar Singh, (2003) 6
SCC 175 : 2003 SCC (Cri) 1305] , this Court
has validated a preliminary inquiry prior to
registering an FIR only on the ground that at
the time the first information is received,
the same does not disclose a cognizable
offence.
119. Therefore, in view of various
counterclaims regarding registration or
non-registration, what is necessary is only
that the information given to the police must
disclose the commission of a cognizable
79
offence. In such a situation, registration of
an FIR is mandatory. However, if no
cognizable offence is made out in the
information given, then the FIR need not be
registered immediately and perhaps the
police can conduct a sort of preliminary
verification or inquiry for the limited
purpose of ascertaining as to whether a
cognizable offence has been committed. But,
if the information given clearly mentions the
commission of a cognizable offence, there is
no other option but to register an FIR
forthwith. Other considerations are not
relevant at the stage of registration of FIR,
such as, whether the information is falsely
given, whether the information is genuine,
whether the information is credible, etc.
These are the issues that have to be verified
during the investigation of the FIR. At the
stage of registration of FIR, what is to be
seen is merely whether the information given
ex facie discloses the commission of a
cognizable offence. If, after investigation,
the information given is found to be false,
there is always an option to prosecute the
complainant for filing a false FIR.”
(Emphasis supplied)
76. As can be noticed that medical negligence cases
constitute an exception to the general rule which provides
for mandatory registration of FIR in respect of all
80
cognizable offences. The Court, in clear terms, held that
it will be unfair and inequitable to prosecute a medical
professional only on the basis of the allegations in the
complaint. It relied on a decision of this Court in Jacob
Mathew v. State of Punjab and another27.
77. In paragraph 117 of Lalita Kumar (Supra), this Court
referred to the decision in P. Sirajuddin, Etc. v. State
of Madras, Etc.28 and took the view that in the context of
offences related to corruption in the said decision, the
Court has expressed a need for a preliminary inquiry before
proceeding against public servants.
78. In P. Sirajuddin (supra), relied upon by the
Constitution Bench in Lalita Kumari (supra), what this
Court has held, and which has apparently been relied upon
by the Constitution Bench though not expressly referred to
is the following statement contained in paragraph 17:
27 (2005) 6 SCC 1
28 (1970) 1 SCC 595
81
“17. … Before a public servant, whatever
be his status, is publicly charged with acts
of dishonesty which amount to serious
misdemeanour or misconduct of the type
alleged in this case and a first information
is lodged against him, there must be some
suitable preliminary enquiry into the
allegations by a responsible officer. The
lodging of such a report against a person,
specially one who like the appellant occupied
the top position in a department, even if
baseless, would do incalculable harm not only
to the officer in particular but to the
department he belonged to, in general. …”
(Emphasis supplied)
79. In Lalita Kumari (supra), one of the contentions which
was pressed before the Court was that in certain situations,
preliminary inquiry is necessary. In this regard, attention
of the Court was drawn to CBI Crime Manual. The following
paragraphs of the Lalita Kumari (supra) may be noticed,
which read as follows:
“89. Besides, the learned Senior
Counsel relied on the special procedures
prescribed under the CBI Manual to be read
into Section 154. It is true that the concept
of “preliminary inquiry” is contained in
Chapter IX of the Crime Manual of CBI.
However, this Crime Manual is not a statute
82
and has not been enacted by the legislature.
It is a set of administrative orders issued
for internal guidance of the CBI officers. It
cannot supersede the Code. Moreover, in the
absence of any indication to the contrary in
the Code itself, the provisions of the CBI
Crime Manual cannot be relied upon to import
the concept of holding of preliminary inquiry
in the scheme of the Code of Criminal
Procedure. At this juncture, it is also
pertinent to submit that CBI is constituted
under a special Act, namely, the Delhi
Special Police Establishment Act, 1946 and it
derives its power to investigate from this
Act.
90. It may be submitted that Sections
4(2) and 5 of the Code permit special
procedures to be followed for special Acts.
Section 4 of the Code lays down as under:
“4.Trial of offences under the Indian
Penal Code and other laws.—(1) All
offences under the Indian Penal Code (45
of 1860) shall be investigated, inquired
into, tried, and otherwise dealt with
according to the provisions hereinafter
contained.
(2) All offences under any other law
shall be investigated, inquired into,
tried, and otherwise dealt with according
to the same provisions, but subject to any
83
enactment for the time being in force
regulating the manner or place of
investigating, inquiring into, trying or
otherwise dealing with such offences.”
It is thus clear that for the offences under
the laws other than IPC, different provisions
can be laid down under a special Act to
regulate the investigation, inquiry, trial,
etc. of those offences. Section 4(2) of the
Code protects such special provisions.
91. Moreover, Section 5 of the Code lays
down as under:
“5.Saving.—Nothing contained in this
Code shall, in the absence of a specific
provision to the contrary, affect any
special or local law for the time being in
force, or any special jurisdiction or
power conferred, or any special form of
procedure prescribed, by any other law for
the time being in force.”
Thus, special provisions contained in the
DSPE Act relating to the powers of CBI are
protected also by Section 5 of the Code.
92. In view of the above specific
provisions in the Code, the powers of CBI
under the DSPE Act, cannot be equated with the
powers of the regular State Police under the
Code.”
84
80. It is thereafter that under the caption “Exceptions”,
the Constitution Bench has proceeded to deal with offences
relating to corruption as already noted and contained in
paragraph 117 of Lalita Kumari (supra), which has already
been extracted. Chapter 8 of the CBI Crime Manual deals with
complaints and source of information. Chapter 9 deals with
preliminary enquiries. Clause (8.6) of Chapter 8 provides
for the categories of complaints which are to be considered
fit for verification. It provides, inter alia, complaints
pertaining to subject matters which fall within the purview
of the CBI, either received from official channels or from
well-established and recognized organizations or from
individuals who are known and who can be traced and
examined. Undoubtedly, petitioners are known and can be
traced and examined. A complaint against a Minister or a
Former Minister of the Union Government is to be put up
before the Director of the CBI. The complaints which are
registered for verification, with the approval of the
competent authority, would only be subjected to secret
verification. Clause (9.1) of Chapter 9 contemplates that
85
when a complaint is received, inter alia, after
verification and which may after verification indicates
serious misconduct on the part of the public servant but
is not adequate to justify registration of a regular case,
under the provisions of Section 154 of the Cr.PC, a
preliminary inquiry may be registered after obtaining
approval of the competent authority. Clause (9.1) also, no
doubt, deals with cases entrusted by this Court and the High
Courts. The Manual further contemplates that the
preliminary inquiry will result either in registration of
regular cases or departmental action inter alia.
81. The Constitution Bench in Lalita Kumari(supra), had
before it, the CBI Crime Manual. It also considered the
decision of this Court in P. Sirajuddin (supra) which
declared the necessity for preliminary inquiry in offences
relating to corruption. Therefore, the petitioners may not
be justified in approaching this Court seeking the relief
of registration of an FIR and investigation on the same as
such. This is for the reason that one of the exceptions where
86
immediate registration of FIR may not be resorted to, would
be a case pointing fingers at a public figure and raising
the allegation of corruption. This Court also has permitted
preliminary inquiry when there is delay, laches in
initiating criminal prosecution, for example, over three
months. A preliminary inquiry, it is to be noticed in
paragraph 120.7, is to be completed within seven days.
82. The petitioners have not sought the relief of a
preliminary inquiry being conducted. Even assuming that a
smaller relief than one sought could be granted, there is
yet another seemingly insuperable obstacle.
83. In the year 2018, the Prevention of Corruption
(Amendment) Act, 2018 (hereinafter referred to as ‘2018
Act’ for short) was brought into force on 26.07.2018.
Thereunder, Section 17A, a new Section was inserted, which
reads as follows:
“17A. (1) No police officer shall
conduct any enquiry or inquiry or
investigation into any offence alleged to
87
have been committed by a public servant under
this Act, where the alleged offence is
relatable to any recommendation made or
decision taken by such public servant in
discharge of his official functions or
duties, without the previous approval— (a )
in the case of a person who is or was employed,
at the time when the offence was alleged to
have been committed, in connection with the
affairs of the Union, of that Government; (b)
in the case of a person who is or was employed,
at the time when the offence was alleged to
have been committed, in connection with the
affairs of a State, of that Government; (c)
in the case of any other person, of the
authority competent to remove him from his
office, at the time when the offence was
alleged to have been committed: Provided that
no such approval shall be necessary for cases
involving arrest of a person on the spot on
the charge of accepting or attempting to
accept any undue advantage for himself or for
any other person: Provided further that the
concerned authority shall convey its
decision under this section within a period
of three months, which may, for reasons to be
recorded in writing by such authority, be
extended by a further period of one month.‟‟.
(Emphasis supplied)
84. In terms of Section 17A, no Police Officer is permitted
to conduct any enquiry or inquiry or conduct investigation
into any offence done by a public servant where the offence
88
alleged is relatable to any recommendation made or decision
taken by the public servant in discharge of his public
functions without previous approval, inter alia, of the
authority competent to remove the public servant from his
Office at the time when the offence was alleged to have been
committed. In respect of the public servant, who is involved
in this case, it is clause (c), which is applicable. Unless,
therefore, there is previous approval, there could be
neither inquiry or enquiry or investigation. It is in this
context apposite to notice that the complaint, which has
been filed by the petitioners in Writ Petition (Criminal)
No. 298 of 2018, moved before the first respondent-CBI, is
done after Section 17A was inserted. The complaint is dated
04.10.2018. Paragraph 5 sets out the relief which is sought
in the complaint which is to register an FIR under various
provisions. Paragraphs 6 and 7 of the complaint are relevant
in the context of Section 17A, which reads as follows:
“6. We are also aware that recently,
Section 17(A) of the act has been brought in
by way of an amendment to introduce the
89
requirement of prior permission of the
government for investigation or inquiry
under the Prevention of Corruption Act.
7. We are also aware that this will
place you in the peculiar situation, of
having to ask the accused himself, for
permission to investigate a case against him.
We realise that your hands are tied in this
matter, but we request you to at least take
the first step, of seeking permission of the
government under Section 17(A) of the
Prevention of Corruption Act for
investigating this offence and under which,
“the concerned authority shall convey its
decision under this section within a period
of three months, which may, for reasons to be
recorded in writing by such authority, be
extended by a further period of one month”.”
85. Therefore, petitioners have filed the complaint fully
knowing that Section 17A constituted a bar to any inquiry
or enquiry or investigation unless there was previous
approval. In fact, a request is made to at least take the
first step of seeking permission under Section 17A of the
2018 Act. Writ Petition (Criminal) No. 298 of 2018 was filed
on 24.10.2018 and the complaint is based on
non-registration of the FIR. There is no challenge to
Section 17A. Under the law, as it stood, both on the date
90
of filing the petition and even as of today, Section 17A
continues to be on the Statute Book and it constitutes a
bar to any inquiry or enquiry or investigation. The
petitioners themselves, in the complaint, request to seek
approval in terms of Section 17A but when it comes to the
relief sought in the Writ Petition, there was no relief
claimed in this behalf.
86. 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 so
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) No.
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 judgment sought to be
reviewed, would not stand in the way of the first respondent
91
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.
87. Subject as hereinbefore stated, in regard to the other
Petitions and Applications, I agree with the proposed Order
of Brother Justice Sanjay Kishan Kaul.
.............J.
(K.M. JOSEPH)
New Delhi,
November 14, 2019.
We are, thus, inclined to accept the prayer and the sentence in para 25 to the following effect - “The pricing details have, however, been shared with the Comptroller and Auditor General (hereinafter referred to as “CAG”), and the report of the CAG has been examined by the Public Accounts Committee (hereafter referred to as “PAC”). Only a redacted portion of the report was placed before the Parliament and is in public domain” should be replaced by what we have set out hereinafter:
“The Government has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC in the usual course of business. Only a redacted version of the report is placed
before the Parliament and in public domain.”
The prayer is accordingly allowed.
Regarding review of 36 Rafale fighter jets.
We cannot lose sight of the fact that we are dealing with a contract for aircrafts, which was pending before different Governments for quite some time and the necessity for those aircrafts has never been in dispute.
We had, thus, concluded in para 34 noticing that other than the aforesaid three aspects, that too to a limited extent, this Court did not consider it appropriate to embark on a roving and fishing enquiry. We were, however, cautious to note that this was in the context of the writ petition
filed under Article 32 of the Constitution of India, the jurisdiction invoked.
No doubt that there was a prayer made for registration of F.I.R. and further investigation but then once we had 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 FIR, prayed for.
Insofar as the aspect of pricing is concerned, the Court satisfied itself with the material made available. It is not the function of this Court to determine the prices nor for that matter can such aspects be dealt with on mere suspicion of persons who decide to approach the Court. The
internal mechanism of such pricing would take care of the situation. On the perusal of documents we had found that one cannot compare apples and oranges. Thus, the pricing of the basic aircraft had to be compared which was competitively marginally lower. As to what should be loaded on the aircraft or not and what further pricing should be added has to be left to the best judgment of the competent authorities.
It does appear that the endeavour of the petitioners is to construe themselves as an appellate authority to determine each aspect of the contract and call upon the Court to do the same. We do not believe this to be the jurisdiction to be exercised.
We decline to, once again, embark on an elaborate exercise of analyzing each clause, perusing what may be the different opinions, then taking a call whether a final decision should or should not have been taken in such technical matters.
An aspect also sought to be emphasized was that this Court had misconstrued that all the Reliance Industries were of one group since the two brothers held two different groups and the earlier arrangement was with the Company of the other brother. That may be so, but in our observation this aspect was referred to in a generic sense more so as the decision of whom to engage as the offset partner was a matter left to the suppliers and we do not think that much can be made out of it.
It is for the aforesaid reasons also that we find that there was no ground made out for initiating prosecution under Section 340 Cr.P.C.
We are, thus, of the view that the review petitions are without any merit and are accordingly dismissed, once again, re-emphasising that our original decision was based within the contours of Article 32 of the Constitution of India.
Contempt of court by Rahul Gandhi
realizing the seriousness of the matter and the inadequacy of the affidavit, learned counsel for the contemnor took liberty to file an additional affidavit. Vide order dated 30.4.2019, this Court left the admissibility and acceptance of such an affidavit to be considered on the subsequent date.
An additional affidavit was filed on 8.5.2019 stating that the contemnor held this Court in the highest esteem and respect and never intended to interfere with the process of administration of justice. An unconditional apology was tendered by him by stating that the attributions were entirely
unintentional, non-willful and inadvertent.
We must note that it is unfortunate that without verification or even perusing as to what is the order passed, the contemnor deemed it appropriate to make statements as if this Court had given an imprimatur to his allegations against the Prime Minister, which was far from the truth. This was not one sentence or a one off observation but a repeated statement in different manners conveying the same. No doubt the contemnor should have been far more careful.
The matter was compounded by filing a 20 page affidavit with a large number of documents annexed rather than simply accepting the mistake and giving an unconditional apology. Better wisdom dawned on the counsel only during the course of arguments thereafter when a subsequent affidavit dated 8.5.2019 was filed.
We do believe that persons holding such important positions in the political spectrum must
be more careful. As to what should be his campaign line is for a political person to consider. However, this Court or for that matter no court should be dragged into this political discourse valid or invalid, while attributing aspects to the Court which had never been held by the Court. Certainly Mr. Gandhi needs to be more careful in future.
However, in view of the subsequent affidavit, better sense having prevailed, we would not like to continue these proceedings further and, thus, close the contempt proceedings with a word of caution for the contemnor to be more careful in future.
1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL/CRIMINAL ORIGINAL JURISDICTION
Review Petition (Crl.) No.46 of 2019
IN
Writ Petition (Crl.) No.298 of 2018
YASHWANT SINHA & ORS. ….Petitioners
Versus
CENTRAL BUREAU OF INVESTIGATION
Through its DIRECTOR & ANR. ….Respondents
(I.A. No. 69008/2019 – CLARIFICATION/DIRECTION, I.A. No.
69006/2019 – INTERVENTION APPLICATION, I.A. No.
71047/2019 – PRODUCTION OF RECORDS and I.A. No.
69009/2019 – STAY APPLICATION)
WITH
MA 58/2019 in W.P.(Crl.) No. 225/2018 (PIL-W) (I.A. No.
182576/2018 – CORRECTION OF MISTAKES IN THE
JUDGMENT)
R.P.(Crl.) No. 122/2019 in W.P.(Crl.) No. 297/2018 (PIL-W)
2
MA 403/2019 in W.P.(Crl.) No. 298/2018 (PIL-W)
(I.A. No. 29248/2019 – INITIATING CRIMINAL
PROCEEDINGS U/S 340 OF CRPC)
R.P.(C) No. 719/2019 in W.P.(C) No. 1205/2018 (PIL-W)
CONMT.PET.(Crl.) No. 3/2019 in R.P.(Crl.) No. 46/2019 in
W.P.(Crl.) No. 298/2018 (PIL-W)
(I.A. No. 63168/2019 – EXEMPTION FROM FILING O.T., I.A.
No.71678/2019 – EXEMPTION FROM FILING O.T. and I.A. No.
66253/2019 – EXEMPTION FROM FILING O.T.)
J U D G M E N T
SANJAY KISHAN KAUL, J.
(I.A. No. 63168/2019 – EXEMPTION FROM FILING O.T., I.A.
No.71678/2019 – EXEMPTION FROM FILING O.T. and I.A. No.
66253/2019 – EXEMPTION FROM FILING O.T.)
1. Allowed subject to just exception.
MA 58/2019 in W.P.(Crl.) No. 225/2018 (PIL-W) (I.A. No.
182576/2018 – CORRECTION OF MISTAKES IN THE
JUDGMENT)
3
2. The Union of India has filed the present application seeking
correction of what they claim to be an error, in two sentences in para 25
of the judgment delivered by this Court on 14.12.2018. This error is
stated to be on account of a misinterpretation of some sentences in a note
handed over to this Court in a sealed cover.
3. The Court had asked vide order dated 31.10.2018 to be apprised of
the details/cost as also any advantage, which may have accrued on that
account, in the procurement of the 36 Rafale fighter jets. The
confidential note in the relevant portions stated as under:
“The Government has already shared the pricing details with the
CAG. The report of the CAG is examined by the PAC. Only a
redacted version of the report is placed before the Parliament and
in public domain.”
4. It is the submission of the learned Attorney General that the first
sentence referred to the sharing of the price details with the CAG. But
the second sentence qua the PAC referred to the process and not what
had already transpired. However, in the judgment this portion had been
understood as if it was already so done.
4
5. On hearing learned counsel for the parties, we are of the view that
the confusion arose on account of two portions of the paragraph referring
to both what had been and what was proposed to be done. Regardless,
what we noted was to complete the sequence of facts and was not the
rationale for our conclusion.
6. We are, thus, inclined to accept the prayer and the sentence in para
25 to the following effect - “The pricing details have, however, been
shared with the Comptroller and Auditor General (hereinafter referred to
as “CAG”), and the report of the CAG has been examined by the Public
Accounts Committee (hereafter referred to as “PAC”). Only a redacted
portion of the report was placed before the Parliament and is in public
domain” should be replaced by what we have set out hereinafter:
“The Government has already shared the pricing details with the
CAG. The report of the CAG is examined by the PAC in the usual
course of business. Only a redacted version of the report is placed
before the Parliament and in public domain.”
7. The prayer is accordingly allowed.
5
8. The application stands disposed of.
R.P. (Crl.) No.46/2019 in WP (Crl.) No.298/2018
R.P.(Crl.) No. 122/2019 in W.P.(Crl.) No. 297/2018 (PIL-W)
MA 403/2019 in W.P.(Crl.) No. 298/2018 (PIL-W)
(I.A. No. 29248/2019 – INITIATING CRIMINAL
PROCEEDINGS U/S 340 OF CRPC)
R.P.(C) No. 719/2019 in W.P.(C) No. 1205/2018 (PIL-W)
9. The review petitions were listed for hearing in Court and elaborate
submissions were made by learned counsel for the parties.
10. We may note that insofar as the preliminary objection raised by the
Attorney General is concerned qua certain documents sought to be
produced by the petitioners, that aspect was dealt with by our order dated
10.4.2019 and the said preliminary objection was overruled.
11. We cannot lose sight of the fact that unless there is an error
apparent on the face of the record, these review applications are not
required to be entertained. We may also note that the application under
Section 340 of the Code of Criminal Procedure, 1973 partly emanates
6
from an aspect which has been dealt with in our order passed today on
the application for correction of the order filed by the Union of India.
12. We have elaborately dealt with the pleas of the learned counsel for
the parties in our order dated 14.12.2018 under the heads of ‘Decision
Making Process’, ‘Pricing’ and ‘Offsets’. However, before proceeding to
deal with these aspects we had set out the contours of the scrutiny in
matters of such a nature. It is in that context we had opined that the
extent of permissible judicial review in matters of contract, procurement,
etc. would vary with the subject matter of the contract and that there
cannot be a uniform standard of depth of judicial review which could be
understood as an across the board principle to apply to all cases of award
of work or procurement of goods/material. In fact, when two of these
writ petitions were listed before the Court on 10.10.2018, we had
embarked on a limited enquiry despite the fact that we were not satisfied
with the adequacy of the averments and the material in the writ petitions.
It was the object of the Court to satisfy itself with the correctness of the
decision making process.
7
13. We cannot lose sight of the fact that we are dealing with a contract
for aircrafts, which was pending before different Governments for quite
some time and the necessity for those aircrafts has never been in dispute.
We had, thus, concluded in para 34 noticing that other than the aforesaid
three aspects, that too to a limited extent, this Court did not consider it
appropriate to embark on a roving and fishing enquiry. We were,
however, cautious to note that this was in the context of the writ petition
filed under Article 32 of the Constitution of India, the jurisdiction
invoked.
14. In the course of the review petitions, it was canvased before us that
reliance had been placed by the Government on patently false documents.
One of the aspects is the same as has been dealt with by our order passed
today on the application for correction and, thus, does not call for any
further discussion.
15. The other aspect sought to be raised specifically in Review Petition
No.46/2019 is that the prayer made by the petitioner 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
8
the benefit of investigation and inquiry into the disputed questions of
facts.
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 submissions 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 had 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 FIR, prayed for.
17. Insofar as the aspect of pricing is concerned, the Court satisfied
itself with the material made available. It is not the function of this Court
to determine the prices nor for that matter can such aspects be dealt with
on mere suspicion of persons who decide to approach the Court. The
internal mechanism of such pricing would take care of the situation. On
the perusal of documents we had found that one cannot compare apples
and oranges. Thus, the pricing of the basic aircraft had to be compared
which was competitively marginally lower. As to what should be loaded
9
on the aircraft or not and what further pricing should be added has to be
left to the best judgment of the competent authorities.
18. We have noted aforesaid that a plea was also raised about the
“non-existent CAG report” but then at the cost of repetition we state that
this formed part of the order for correction we have passed aforesaid.
19. 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.
20. Insofar as the decision making process is concerned, on the basis
of certain documents obtained, the petitioners sought to contend that
there was contradictory material. We, however, found that there were
undoubtedly opinions expressed in the course of the decision making
process, which may be different from the decision taken, but then any
10
decision making process envisages debates and expert opinion and the
final call is with the competent authority, which so exercised it. In this
context reference was made to (a) Acceptance of Necessity (‘AON’)
granted by the Defence Acquisition Council (‘DAC’) not being available
prior to the contract which would have determined the necessity and
quantity of aircrafts; (b) absence of Sovereign Guarantee granted by
France despite requirement of the Defence Procurement Procedure
(‘DPP’); (c) the oversight of objections of three expert members of the
Indian Negotiating Team (‘INT’) regarding certain increase in the
benchmark price; and (d) the induction of Reliance Aerostructure
Limited (‘RAL’) as an offset partner.
21. It does appear that the endeavour of the petitioners is to construe
themselves as an appellate authority to determine each aspect of the
contract and call upon the Court to do the same. We do not believe this
to be the jurisdiction to be exercised. All aspects were considered by the
competent authority and the different views expressed considered and
dealt with. It would well nigh become impossible for different opinions
to be set out in the record if each opinion was to be construed as to be
11
complied with before the contract was entered into. It would defeat the
very purpose of debate in the decision making process.
22. Insofar as the aforesaid pleas are concerned, it has also been
contended that some aspects were not available to the petitioner at the
time of the decision and had come to light subsequently by their
“sourcing” information. We decline to, once again, embark on an
elaborate exercise of analyzing each clause, perusing what may be the
different opinions, then taking a call whether a final decision should or
should not have been taken in such technical matters.
23. An aspect also sought to be emphasized was that this Court had
misconstrued that all the Reliance Industries were of one group since the
two brothers held two different groups and the earlier arrangement was
with the Company of the other brother. That may be so, but in our
observation this aspect was referred to in a generic sense more so as the
decision of whom to engage as the offset partner was a matter left to the
suppliers and we do not think that much can be made out of it.
12
24. It is for the aforesaid reasons also that we find that there was no
ground made out for initiating prosecution under Section 340 Cr.P.C.
25. We are, thus, of the view that the review petitions are without any
merit and are accordingly dismissed, once again, re-emphasising that our
original decision was based within the contours of Article 32 of the
Constitution of India.
CONMT.PET.(Crl.) No. 3/2019 in R.P.(Crl.) No. 46/2019 in
W.P.(Crl.) No. 298/2018 (PIL-W)
26. The contempt petition emanates from an allegation against Mr.
Rahul Gandhi, the then President of the Indian National Congress, on
account of utterances made in the presence of several media persons on
10.4.2019 by him alleging that the Supreme Court had held that
“Chowkidar (Mr. Narendra Modi, Prime Minister) is a thief.” The
Supreme Court was also attributed to having held in consonance with
what his discourse was, i.e., that the Prime Minister of India stole money
from the Air Force and gave it to Mr. Anil Ambani and that the Supreme
13
Court had admitted that Mr. Modi had indulged in corruption. It was
stated that the Supreme Court had said that the Chowkidar is a thief.
27. On notice being issued, reply affidavit dated 22.4.2019 was filed
averring that the comments were made on the basis of a bona fide belief
and general understanding of the order even though the contemnor had
not himself had the opportunity to see, read or analyse the order at that
stage. It was further averred that there had not been the slightest
intention to insinuate anything regarding the Supreme Court proceedings
in any manner as the statements had been made by the contemnor in a
“rhetorical flourish in the heat of the moment” and that his statement has
been used and misused by his political opponents to project that he had
deliberately attributed the utterances to the Supreme Court. In that
context, it was averred that “nothing could be farther from my mind. It is
also clear that no Court would ever do that and hence the unfortunate
references (for which I express regret) to the Court order and to the
political slogan in juxtaposition the same breath in the heat of political
campaigning ought not to be construed as suggesting that the Court had
given any finding or conclusion on that issue.”
14
28. The acceptance of such an affidavit was opposed by the petitioner,
a BJP Member of Parliament, in the contempt petition. It was stated that
instead of expression of any remorse or apology, attempt was made to
justify the contemptuous statement as having been made in the heat of the
moment.
29. On arguments having taken place in this context, and realizing the
seriousness of the matter and the inadequacy of the affidavit, learned
counsel for the contemnor took liberty to file an additional affidavit.
Vide order dated 30.4.2019, this Court left the admissibility and
acceptance of such an affidavit to be considered on the subsequent date.
An additional affidavit was filed on 8.5.2019 stating that the contemnor
held this Court in the highest esteem and respect and never intended to
interfere with the process of administration of justice. An unconditional
apology was tendered by him by stating that the attributions were entirely
unintentional, non-willful and inadvertent.
30. The matter was, once again, addressed by the learned counsel. We
have given our thoughtful consideration to this issue.
15
31. We must note that it is unfortunate that without verification or
even perusing as to what is the order passed, the contemnor deemed it
appropriate to make statements as if this Court had given an imprimatur
to his allegations against the Prime Minister, which was far from the
truth. This was not one sentence or a one off observation but a repeated
statement in different manners conveying the same. No doubt the
contemnor should have been far more careful.
32. The matter was compounded by filing a 20 page affidavit with a
large number of documents annexed rather than simply accepting the
mistake and giving an unconditional apology. Better wisdom dawned on
the counsel only during the course of arguments thereafter when a
subsequent affidavit dated 8.5.2019 was filed. We do believe that
persons holding such important positions in the political spectrum must
be more careful. As to what should be his campaign line is for a political
person to consider. However, this Court or for that matter no court
should be dragged into this political discourse valid or invalid, while
attributing aspects to the Court which had never been held by the Court.
Certainly Mr. Gandhi needs to be more careful in future.
16
33. However, in view of the subsequent affidavit, better sense having
prevailed, we would not like to continue these proceedings further and,
thus, close the contempt proceedings with a word of caution for the
contemnor to be more careful in future.
(I.A. No. 69008/2019 – CLARIFICATION/DIRECTION, I.A. No.
69006/2019 – INTERVENTION APPLICATION, I.A. No.
71047/2019 – PRODUCTION OF RECORDS and I.A. No.
69009/2019 – STAY APPLICATION)
34. In view of the orders passed above, these applications do not
survive for consideration and the same are disposed of. Any other
pending applications also stands disposed.
..….….…………………….C.J.I.
[Ranjan Gogoi]
...……………………………J.
[Sanjay Kishan Kaul]
New Delhi.
November 14, 2019.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
REVIEW PETITION (CRIMINAL) NO. 46 OF 2019
IN
WRIT PETITION (CRIMINAL) NO. 298 OF 2018
YASHWANT SINHA AND OTHERS ... PETITIONER(S)
VERSUS
CENTRAL BUREAU OF INVESTIGATION
THROUGH ITS DIRECTOR AND ANOTHER ... RESPONDENT(S)
AND CONNECTED MATTERS
J U D G M E N T
K.M. JOSEPH, J.
1. I have perused the Order proposed by my learned
Brother, Justice Sanjay Kishan Kaul. While I agree with the
final decision subject to certain aspects considered by me,
I would, by my separate opinion, give my reasons, which are
as hereunder.
2
2. The common judgment in four Writ Petitions has
generated three Review Petitions, a Contempt Petition and
a Petition under Section 340 of The Code of Criminal
Procedure, 1973 (hereinafter referred to as ‘the Cr.PC’ for
short) and an application seeking correction.
3. Review Petition (Criminal) No. 46 of 2019 is filed by
the petitioners in Writ Petition (Criminal) No. 298 of 2018.
In the said Writ Petition, relief sought, inter alia, was
to register an FIR and to investigate the complaint which
was made by the petitioners and to submit periodic status
reports. The reliefs, as are made in the clauses ‘a’ to ‘e’
of the prayer, read as follows:
“a. Issue writ of mandamus or any other
appropriate writ directing Respondent
No.1 to register an F.I.R. on the
complaint that was made by the
Petitioners on the 04th of October, 2018.
b. Issue writ of mandamus or any other
appropriate writ directing the
Respondent No.1 to investigate the
offences disclosed in the said complaint
3
in a time bound manner and to submit
periodic status reports to the Court.
c. Issue writ of mandamus or any other
appropriate writ directing the
Respondent No.2 to cease and desist from
influencing or intimidating in any way
the officials that would investigate the
offences disclosed in the complaint.
d. Issue writ of mandamus or any other
appropriate writ directing the
Respondent No.1 and Respondent No.2 to
not transfer the C.B.I. officials tasked
with investigation of the offences
mentioned in the complaint.
e. Issue writ of mandamus or any other
appropriate writ to ensure that the
relevant records are not destroyed or
tampered with and are transferred to the
CBI.”
4. Review Petition (Criminal) No. 122 of 2019 is filed by
the petitioner in Writ Petition (Criminal) No. 297 of 2018.
The reliefs sought in the said Writ Petition is as follows:
“(a) to constitute a Special
Investigating Team (SIT) under the
supervision of the Hon’ble Supreme
Court with following mandate:
4
i. to investigate the reasons for
cancellation of earlier deal
for the purchase of 126 Rafale
Fighter Jets.
ii. As to how the figure of 36
Fighter Jets was arrived at
without the formalities
associated with such a highly
sensitive defence procurement.
iii. to look into the alterations
made by the Respondent No.2
about the pricing of the Rafale
Fighter Jets in view of the
earlier price of Rs.526 crores
per Fighter Jets alongwith
requisite equipments, services
and weapons and Rs.670 crores
without associated equipments,
weapons, India specific
enhancements, maintenance
support and services; which
resulted into the escalation of
price of each Fighter Jets from
Rs.526 crores to more than 1500
crores;
iv. to investigate as to how a
novice company viz. Reliance
Defence came in picture of this
highly sensitive defence deal
involving Rs.59,000 crores
without having any kind of
experience and expertise in
making of Fighter Jets.
v. As to why name of ‘Hindustan
Aeronautics Limited’ was
removed from the deal?
5
vi. As to whether the decision of
purchase of only 36 Rafale
Fighter Jets instead of 126 was
a compromise with the security
of the Country or not?
vii. Whether the Reliance Defence or
it’s sister concern or any
other individual or
intermediary company has/have
influenced the decision making
of the purchase of Rafale
Fighter Jets at substantially
higher prices in the backdrop
of the statement given by the
then President of French
Republic and the investment
made by the Reliance
Entertainment into the Julie
Gayet’s Firm Rouge
International was made with a
purpose to influence the
decision of removal of the HAL
and induction of Reliance
Defence as partner of the
Dassault;
(b) to terminate/cancel the
inter-governmental agreement with
the Govt. of French Republic signed
on 23-09-2016 for the purchase of 36
Rafale Fighter Jets and to give
direction to the Respondent No.3 to
lodge an FIR and to report the
progress of investigation to this
Hon’ble Court;
(c) to restore the earlier deal for the
purchase of 126 Rafale Fighter Jets
6
which was cancelled on 24.06.2015
by the Govt. of India.
(d) to bar the Dassault Reliance
Aerospace Limited (DRAL) from
handling/manufacturing the Rafale
Fighter Jets;
(e) to direct the Respondent 1&2 to
propose the Public Sector Company
Hindustan Aeronautics Limited as
the Indian Offset Partner of
Dassault;”
5. Review Petition (Criminal) No. 719 of 2019 has been
filed again by a sole petitioner in Writ Petition (Criminal)
No. 1205 of 2018. The reliefs sought in the said Writ
Petition is as follows:
“a) Issue an appropriate writ or order or
direction directing the respondents to
file the details of the agreement
entered into between the Union of India
and Government of France with regard to
7
the purchase of 36 Rafale Fighter Jets
in a sealed envelope.
b) Issue an appropriate writ or order or
direction directing the respondents to
furnish in a sealed envelope the
information with regard to the present
cost of Rafale Fighter Jets and also the
earlier cost of the Rafale Fighter Jets
during the regime of UPA Government;
c) Issue an appropriate writ or order or
direction directing the respondents to
furnish any other information in sealed
envelope before the Hon’ble Supreme
Court with regard to the controversy
erupted in the purchase of Rafale
Fighter Jets;”
8
THE IMPUGNED JUDGMENT
6. The three Writ Petitions, as also Writ Petition in
which no Review is filed, came to be dismissed. This Court
has referred to the reliefs which have been sought in the
four Writ Petitions. This Court referred to the parameters
of judicial review. The extent of permissible judicial
review of contracts, procurement, etc., was found to vary
with the subject matter of the contract. It was further
observed that the scrutiny of the challenges before the
Court, will have to be made keeping in mind the confines
of national security, the subject of procurement being
crucial to the nation’s sovereignty.
7. The findings of this Court in paragraph 15 throws light
on the controversy as was understood by the Court. Paragraph
15 reads as follows:
“15. It is in the backdrop of the above
facts and the somewhat constricted power of
judicial review that, we have held, would be
available in the present matter that we now
proceed to scrutinise the controversy raised
in the writ petitions which raise three broad
9
areas of concern, namely, (i) the
decision-making process; (ii) difference in
pricing; and (iii) the choice of IOP.”
(Emphasis supplied)
8. Thereafter, this Court had proceeded to consider the
decision-making process, pricing and offsets and did not
find in favour of the petitioners. It is after the
discussion, as aforesaid, it is to be noted that this Court
finally concluded as follows:
“33. Once again, it is neither appropriate
nor within the experience of this Court to
step into this arena of what is technically
feasible or not. The point remains that DPP
2013 envisages that the vendor/OEM will
choose its own IOPs. In this process, the role
of the Government is not envisaged and, thus,
mere press interviews or suggestions cannot
form the basis for judicial review by this
Court, especially when there is categorical
denial of the statements made in the Press,
by both the sides. We do not find any
substantial material on record to show that
this is a case of commercial favouritism to
any party by the Indian Government, as the
option to choose IOP does not rest with the
Indian Government.
10
Conclusion
34. In view of our findings on all the
three aspects, and having heard the matter in
detail, we find no reason for any
intervention by this Court on the sensitive
issue of purchase of 36 defence aircrafts by
the Indian Government. Perception of
individuals cannot be the basis of a fishing
and roving enquiry by this Court, especially
in such matters. We, thus, dismiss all the
writ petitions, leaving it to the parties to
bear their own costs. We, however, make it
clear that our views as above are primarily
from the standpoint of the exercise of the
jurisdiction under Article 32 of the
Constitution of India which has been invoked
in the present group of cases.”
(Emphasis supplied)
9. Upon consideration of the Review Petitions and
Applications, by Order dated 26.02.2019, prayer for hearing
in the open court was allowed. We have heard learned
counsel. We heard parties in Review Petition (Criminal) No.
46 of 2019, the learned Attorney General and learned
Solicitor General.
10. As far as petitioners in Review Petition (Criminal) No.
46 of 2019 is concerned, the complaint appears to be that
11
this Court has totally overlooked the relief sought in Writ
Petition (Criminal) No. 298 of 2018.
11. The first respondent is the Central Bureau of
Investigation (CBI) and the second respondent is the Union
of India in Writ Petition (Criminal) No. 298 of 2018. The
substance of the Writ Petition is that after following the
due process under the Defence Procurement Procedure (DPP),
to procure Advanced Fighter Aircrafts, and as per the
authority under the DPP, the IAF Service Headquarters,
after a widely consultative process with multiple
Institutions, prepared Services Qualitative Requirements
(SQR), specifying the number of aircrafts required as 126.
There was the recommendation of the Committee that Make in
India by Hindustan Aeronautics Limited (HAL), a Public
Sector Enterprise, under a Transfer Technology Agreement,
should be the mode of procurement. The Defence Acquisition
Council granted the mandatory Acceptance of
Necessity (AON). A Request for Proposal (RFP) was,
accordingly, issued. There were six vendors. In 2011, it
12
was announced that Dassault’s Rafale and Eurofighter GmbH
Typhoon met the IAF requirements. In March of 2014, a Work
Share Agreement was entered into between Dassault Aviation
and HAL. Accordingly, HAL would do 70 per cent of the work
on 108 planes. On 25.03.2015, it is alleged that Dassault
was in the final stages of negotiations with India for 126
aircrafts and HAL was to be the partner of Dassault.
12. It was the further case of the petitioners that a new
deal was, however, inexplicably negotiated and announced
by the Prime Minister without following the due procedure.
Number of aircrafts were reduced to 36. This involved
complete violation of all laid down Defence Procurement
Procedure. There are various allegations made against the
deal to purchase 36 planes in place of 126. In particular,
there is reference to Mr. Anil Ambani not owning any company
engaged in manufacture of products and services mentioned
in the list of products and services eligible for discharge
of offset obligations. A company was incorporated as
Reliance Defence Limited on 28.03.2015, just twelve days
13
before the new deal was suddenly announced on 10.04.2015.
There is also the case that DPP was bypassed for collateral
considerations. In the complaint lodged with CBI, there is
reference to the Prevention of Corruption Act, 1988, as it
stood prior to amendment. Their request is to register an
FIR under the provisions which are mentioned therein which
fall under the Prevention of Corruption Act, 1988 and to
investigate the matter. Other reliefs are already referred
to.
13. The petitioners in the said case, premise their case
on the judgment of this Court in Lalita Kumari v. Government
of Uttar Pradesh and others1. It is their case that though
reference was made to the relief at the beginning of the
judgment, thereafter, this Court focused only on the merits
of the matter in terms of the powers available to it under
judicial review. Reliefs sought in other Writ Petitions
were focused upon. The only prayers of the petitioners in
Writ Petition (Criminal) No. 298 of 2018, as noticed, was
1 (2014) 2 SCC 1
14
a direction to follow the command of Lalita Kumari (supra)
and to register an FIR as they have filed a complaint which
is produced along with Writ Petition and as no action was
taken as mandated by the Constitution Bench of this Court,
they have approached this Court. The error is apparent in
not even considering the impact of the Constitution Bench
and requires to be redressed through the Review Petition.
The petitioners also, undoubtedly, point out that there was
suppression of facts by the respondents. This Court was
sought to be misled. There is also a case that the
petitioners have obtained documents which suggest that
there were parallel negotiations being undertaken by the
Prime Minister’s Office (PMO) which was strenuously
objected to by the Indian Negotiating Team (INT). The
statement in the judgment that the pricing details have been
shared with the Comptroller and Auditor General of
India (CAG) and the Report of the CAG has been examined by
the Public Accounts Committee (PAC) and that only a redacted
portion of the Report was placed before the Parliament, are
pointed out to be patently false. It is primarily in regard
15
to the same that an Application is filed purporting to be
under Section 340 of the Cr.PC. There is an Application for
Correction and there is complaint of wholesale suppression
of facts. Errors are also referred to.
14. The stand of the Government of India is that the Review
Petitions are meritless. This Court has elaborately
considered the matter and found that there was nothing
wrong. It is the case of the Government that the impugned
judgement addresses contentions of the petitioners on
compelling principles with regard to the scope of the
judicial inquiry in cases involving the security and
defence of the nation and it lays down the correct law. It
is pointed out that there is no grave error apparent on the
face of record. Reliance is placed on judgment of this Court
in Mukesh v. State (NCT of Delhi)2. A fishing inquiry is
impermissible. There was additional benefit to the country
as a result of the deal which is sought to be questioned.
Reliance is placed on the findings of the CAG. It is
2 (2018) 8 SCC 149
16
contended that the CAG has conclusively held that the basis
of the benchmark by the INT was unrealistic.
15. The CAG has held that 36 Rafale aircrafts deal was 2.86
per cent lower than the audit aligned price. Regarding the
offset guidelines being amended initially to benefit an
industrial group, it is stoutly denied. The waiver of
sovereignty/bank guarantee in Government to Government
agreements is pointed out to be not unusual. Support is
sought to be drawn from the Report of the CAG, inter alia,
finding that the French Government was made equally
responsible to fulfil its obligations. The production and
delivery schedule are monitored by high-level Committee
with representatives of both Governments of France and
India.
16. As far as mandate of Lalita Kumari (supra), not being
followed, it is stated that disclosing prima facie that a
cognizable offence is committed is mandatory, which is
lacking in the present case especially once this Court has
concluded that on decision-making process, pricing and
17
Indian Offset Partners, there was no reason to intervene.
Once this Court has held that perception of individuals
cannot be the basis for a fishing and roving inquiry, no
cognizable offence is made out prima facie so as to order
registration of an FIR. There is no concealment of facts
or false presentation of facts.
CONTOURS OF REVIEW JURISDICTOIN
17. Article 137 of the Constitution confers jurisdiction
on the Supreme Court of India to exercise power of review.
It reads as follows:
“137. Review of judgments or orders by the
Supreme Court Subject to the provisions of
any law made by Parliament or any rules made
under Article 145, the Supreme Court shall
have power to review any judgment pronounced
or order made by it.”
18. Rules have been made known as The Supreme Court Rules,
2013. Order XLVII of the said Rules, deals with review (In
The Supreme Court Rules, 1966, it was contained in Order
XL) and it reads as follows:
18
“ORDER XLVII
REVIEW
1. The Court may review its judgment or
order, but no application for review will be
entertained in a civil proceeding except on
the ground mentioned in Order XLVII, rule I
of the Code, and in a criminal proceeding
except on the ground of an error apparent on
the face of the record.
The application for review shall be
accompanied by a certificate of the Advocate
on Record certifying that it is the first
application for review and is based on the
grounds admissible under the Rules.
2. An application for review shall be by
a petition, and shall be filed within thirty
days from the date of the judgment or order
sought to be reviewed. It shall set out
clearly the grounds for review.
3. Unless otherwise ordered by the Court
an application for review shall be disposed
of by circulation without any oral arguments,
but the petitioner may supplement his
petition by additional written arguments.
The Court may either dismiss the petition or
direct notice to the opposite party. An
application for review shall as far as
practicable be circulated to the same Judge
or Bench of Judges that delivered the
judgment or order sought to be reviewed.
4. Where on an application for review the
Court reverses or modifies its former
decision in the case on the ground of mistake
of law or fact, the Court, may, if it thinks
fit in the interests of justice to do so,
19
direct the refund to the petitioner of the
court-fee paid on the application in whole or
in part, as it may think fit.
5. Where an application for review of any
judgment and order has been made and disposed
of, no further application for review shall
be entertained in the same matter.”
19. Thus, a perusal of the same would show that the
jurisdiction of this Court, to entertain a review petition
in a civil matter, is patterned on the power of the Court
under Order XLVII Rule 1 of The Code of Civil Procedure,
1908 (hereinafter referred to as ‘the CPC’, for short).
20. Order XLVII Rule 1 of the CPC, reads as follows:
“ORDER XLVII : REVIEW
1. Application for review of judgement
(1) Any person considering himself
aggrieved-
(a) by a decree or order from which
an appeal is allowed, but from no appeal
has been preferred,
(b) by a decree or order from which
no appeal is allowed, or
(c) by a decision on a reference from
a Court of Small Causes,
20
and who, from the discovery of new and
important matter or evidence which, after
the exercise of due diligence was not within
his knowledge or could not be produced by him
at the time when the decree was passed or
order made, or on account of some mistake or
error apparent on the face of the record or
for any other sufficient reason, desires to
obtain a review of the decree passed or order
made against him, may apply for a review of
judgement to the Court which passed the
decree or made the order.
(2) A party who is not appealing from a
decree or order may apply for a review of
judgement notwithstanding the pendency of an
appeal by some other party except where the
ground of such appeal is common to the
applicant and the appellant, or when, being
respondent, he can present to the Appellate
Court the case on which he applies for the
review.
Explanation.- The fact that the decision
on a question of law on which the judgement
of the Court is based has been reversed or
modified by the subsequent decision of a
superior Court in any other case, shall not
be a ground for the review of such judgement.”
21. It will be noticed that in criminal matters, review
lies on an error apparent on the face of record being
established. However, it is necessary to notice what a
21
Constitution Bench of this Court laid down in P.N. Eswara
Iyer And Others v. Registrar, Supreme Court of India3:
“34. The rule [Ed.:Order 40, Rule 1 of
the Supreme Court Rules] , on its face,
affords a wider set of grounds for review for
orders in civil proceedings, but limits the
ground vis-a-vis criminal proceedings to
“errors apparent on the face of the record”.
If at all, the concern of the law to avoid
judicial error should be heightened when life
or liberty is in peril since civil penalties
are often less traumatic. So, it is
reasonable to assume that the framers of the
rules could not have intended a restrictive
review over criminal orders or judgments. It
is likely to be the other way about. Supposing
an accused is sentenced to death by the
Supreme Court and the “deceased” shows up in
court and the court discovers the tragic
treachery of the recorded testimony. Is the
court helpless to review and set aside the
sentence of hanging? We think not. The power
to review is in Article 137 and it is equally
wide in all proceedings. The rule merely
canalises the flow from the reservoir of
power. The stream cannot stifle the source.
Moreover, the dynamics of interpretation
depend on the demand of the context and the
lexical limits of the test. Here “record”
means any material which is already on record
3 (1980) 4 SCC 680
22
or may, with the permission of the court, be
brought on record. If justice summons the
Judges to allow a vital material in, it
becomes part of the record; and if apparent
error is there, correction becomes
necessitous.
35. The purpose is plain, the language
is elastic and interpretation of a necessary
power must naturally be expansive. The
substantive power is derived from Article 137
and is as wide for criminal as for civil
proceedings. Even the difference in
phraseology in the rule (Order 40 Rule 2)
must, therefore, be read to encompass the
same area and not to engraft an artificial
divergence productive of anomaly. If the
expression “record” is read to mean, in its
semantic sweep, any material even later
brought on record, with the leave of the
court, it will embrace subsequent events, new
light and other grounds which we find in Order
47 Rule 1, CPC. We see no insuperable
difficulty in equating the area in civil and
criminal proceedings when review power is
invoked from the same source.”
(Emphasis supplied)
22. In Suthendraraja Alias Suthenthira Raja Alias Santhan
and others v. State Through DSP/CBI, SIT, Chennai 4 ,
4 (1999) 9 SCC 323
23
referring to the judgement in P.N. Eswara Iyer (supra), it
was, inter alia, held that the scope of review was widened
considerably by the pronouncement.
23. In Haridas Das v. Usha Rani Banik (Smt.) and others5,
the question arose out of an appeal in the High Court,
wherein the High Court accepted the prayer for review. This
Court held as follows:
“13. … The parameters are prescribed in
Order 47 CPC and for the purposes of this lis,
permit the defendant to press for a rehearing
“on account of some mistake or error apparent
on the face of the records or for any other
sufficient reason”. The former part of the
rule deals with a situation attributable to
the applicant, and the latter to a jural
action which is manifestly incorrect or on
which two conclusions are not possible.
Neither of them postulate a rehearing of the
dispute because a party had not highlighted
all the aspects of the case or could perhaps
have argued them more forcefully and/or cited
binding precedents to the court and thereby
enjoyed a favourable verdict. This is amply
evident from the Explanation to Rule 1 of
Order 47 which states that the fact that the
decision on a question of law on which the
judgment of the court is based has been
reversed or modified by the subsequent
5 (2006) 4 SCC 78
24
decision of a superior court in any other
case, shall not be a ground for the review of
such judgment. Where the order in question is
appealable the aggrieved party has adequate
and efficacious remedy and the court should
exercise the power to review its order with
the greatest circumspection. …”
(Emphasis supplied)
24. Jain Studios Ltd. Through Its President v. Shin
Satellite Public Co. Ltd.6 involved an order passed by Judge
in Chambers. It was sought to review the order passed which
is reported in Shin Satellite Public Co. Ltd. v. Jain
Studios Ltd.7. In the Arbitration Petition which was the
main matter, there was a prayer to appoint an Arbitrator
by the review petitioner. The same was heard and rejected.
The learned Judge, in the said circumstances, held as
follows:
“11. So far as the grievance of the
applicant on merits is concerned, the learned
counsel for the opponent is right in
submitting that virtually the applicant
seeks the same relief which had been sought
at the time of arguing the main matter and had
6(2006) 5 SCC 501
7(2006) 2 SCC 628
25
been negatived. Once such a prayer had been
refused, no review petition would lie which
would convert rehearing of the original
matter. It is settled law that the power of
review cannot be confused with appellate
power which enables a superior court to
correct all errors committed by a subordinate
court. It is not rehearing of an original
matter. A repetition of old and overruled
argument is not enough to reopen concluded
adjudications. The power of review can be
exercised with extreme care, caution and
circumspection and only in exceptional
cases.”
(Emphasis supplied)
25. In State of West Bengal and others v. Kamal Sengupta
and another8, this Court, inter alia, held as follows:
“21. At this stage it is apposite to
observe that where a review is sought on the
ground of discovery of new matter or
evidence, such matter or evidence must be
relevant and must be of such a character that
if the same had been produced, it might have
altered the judgment. In other words, mere
discovery of new or important matter or
evidence is not sufficient ground for
review ex debito justitiae. Not only this,
the party seeking review has also to show that
such additional matter or evidence was not
8 (2008) 8 SCC 612
26
within its knowledge and even after the
exercise of due diligence, the same could not
be produced before the court earlier.”
(Emphasis supplied)
26. In Moran Mar Basselios Catholicos and another v. Most
Rev. Mar Poulose Athanasius and others9, the question, which
fell for consideration was, whether misconception of the
court about a concession by counsel, furnished a ground for
review. A court may pronounce a judgement on the basis that
a concession had been made by the counsel when none had been
made. The court may also misapprehend the terms of the
concession or the scope of a concession. When such
misconception underscores a judgment, whether review would
lie? Answering the said question, this Court proceeded to
hold as follows:
“36. … Patanjali Sastri, J. (as he then
was) sitting singly in the Madras High Court
definitely took the view in Rekhanti Chinna
Govinda Chettiyar v. S. Varadappa
Chettiar [AIR 1940 Mad. 17] that a
misconception by the court of a concession
9 AIR 1954 SC 526
27
made by the advocate or of the attitude taken
up by the party appears to be a ground
analogous to the grounds set forth in the
first part of the review section and affords
a good and cogent ground for review. The
learned Attorney-General contends that this
affidavit and the letters accompanying it
cannot be said to be part of “the record”
within the meaning of Order 47 Rule 1. We see
no reason to construe the word “record” in the
very restricted sense as was done by Denning,
L.J., in Rex v. Northumberland Compensation
Appeal Tribunal Ex parte Shaw [(1952) 2 KB
338 at pp. 351-52] which, was a case of
certiorari and include within that term only
the document which initiates the
proceedings, the pleadings and the
adjudication and exclude the evidence and
other parts of the record. Further, when the
error complained of is that the court assumed
that a concession had been made when none had
in fact been made or that the court
misconceived the terms of the concession or
the scope and extent of it, it will not
generally appear on the record but will have
to be brought before the court by way of an
affidavit as suggested by the Privy Council
as well as by this Court and this can only be
done by way of review. The cases to which
reference has been made indicate that the
misconception of the court must be regarded
as sufficient reason analogous to an error on
the face of the record. In our opinion it is
permissible to rely on the affidavit as an
additional ground for review of the
judgment.”
(Emphasis supplied)
28
27. It is pertinent to notice that this Court did not
confine the word “record” in the narrow sense in which it
was interpreted as in the case of an application of Writ
of Certiorari. This Court also sanctioned support being
drawn from an affidavit by the counsel in this regard, as
additional ground for review. Misconception by a court, was
found embraced within the scope of the expression
“sufficient reasons”.
28. Non-advertence to the particular provision of the
Statute, which was pertinent and relevant to the lis, was
held to be a ground to seek review. In Girdhari Lal Gupta
v. D.N. Mehta and another10, this Court held as follows:
“16. The learned counsel for the
respondent State urges that this is not a case
fit for review because it is only a case of
mistaken judgment. But we are unable to agree
with this submission because at the time of
the arguments our attention was not drawn
specifically to sub-section 23-C(2) and the
10 AIR 1971 SC 2162
29
light it throws on the interpretation of
sub-section (1).”
(Emphasis supplied)
29. Also, see in this regard, judgment in Deo Narain Singh
v. Daddan Singh and others11 where finding that this Court
had decided the case on the basis of a Statute, which was
inapplicable in the facts, review was granted.
30. In Sow Chandra Kante and another v. Sheikh Habib12, the
judgment involved a request to review the decision of this
Court refusing special leave to appeal in a matter, this
Court held as follows:
“… A review of a judgment is a serious
step and reluctant resort to it is proper only
where a glaring omission or patent mistake or
like grave error has crept in earlier by
judicial fallibility. A mere repetition,
through different counsel, of old and
overruled arguments, a second trip over
ineffectually covered ground or minor
mistakes of inconsequential import are
obviously insufficient. …”
(Emphasis supplied)
11 1986 (Supp) SCC 530
12(1975) 1 SCC 674
30
31. Two documents, which were part of the record, were
considered by the Judicial Commissioner to allow review by
the High Court. This Court, in appeal, in the judgement in
Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and
others13, found as follows:
“4. In the present case both the grounds
on which the review was allowed were hardly
grounds for review. That the two documents
which were part of the record were not
considered by the Court at the time of issue
of a writ under Article 226 cannot be a ground
for review especially when the two documents
were not even relied upon by the parties in
the affidavits filed before the Court in the
proceedings under Article 226. Again that
several instead of one writ petition should
have been filed is a mere question of
procedure which certainly would not justify
a review. We are, therefore, of the view that
the Judicial Commissioner acted without
jurisdiction in allowing the review. The
order of the Judicial Commissioner dated
December 7, 1967 is accordingly set aside and
the order dated May 25, 1965, is restored. The
appeal is allowed but without costs.”
(Emphasis supplied)
13 (1979) 4 SCC 389
31
32. M/s. Northern India Caterers (India) Ltd. v. Lt.
Governor of Delhi14 was a case which fell to be considered
under Article 137 of the Constitution of India. The relevant
discussion is found in paragraphs 8 and 9. They read as
follows:
“8. It is well-settled that a party is not
entitled to seek a review of a judgment
delivered by this Court merely for the
purpose of a rehearing and a fresh decision
of the case. The normal principle is that a
judgment pronounced by the Court is final,
and departure from that principle is
justified only when circumstances of a
substantial and compelling character make it
necessary to do so: Sajjan Singh v. State of
Rajasthan [AIR 1965 SC 845 : (1965) 1 SCR 933,
948 : (1965) 1 SCJ 377] . For instance, if the
attention of the Court is not drawn to a
material statutory provision during the
original hearing, the Court will review its
judgment: G.L. Gupta v. D.N. Mehta [(1971)
3 SCC 189 : 1971 SCC (Cri) 279 : (1971) 3 SCR
748, 750]. The Court may also reopen its
judgment if a manifest wrong has been done and
it is necessary to pass an order to do full
and effective justice: O.N.
Mohindroo v. Distt. Judge, Delhi [(1971) 3
SCC 5 : (1971) 2 SCR 11, 27] . Power to review
14(1980) 2 SCC 167
32
its judgments has been conferred on the
Supreme Court by Article 137 of the
Constitution, and that power is subject to
the provisions of any law made by Parliament
or the rules made under Article 145. In a
civil proceeding, an application for review
is entertained only on a ground mentioned in
Order 47 Rule 1 of the Code of Civil
Procedure, and in a criminal proceeding on
the ground of an error apparent on the face
of the record (Order 40 Rule 1, Supreme Court
Rules, 1966). But whatever the nature of the
proceeding, it is beyond dispute that a
review proceeding cannot be equated with the
original hearing of the case, and the
finality of the judgment delivered by the
Court will not be reconsidered except “where
a glaring omission or patent mistake or like
grave error has crept in earlier by judicial
fallibility”: Sow Chandra Kante v. Sheikh
Habib [(1975) 1 SCC 674 : 1975 SCC (Tax) 200
: (1975) 3 SCR 933].
9. Now, besides the fact that most of the
legal material so assiduously collected and
placed before us by the learned Additional
Solicitor General, who has now been entrusted
to appear for the respondent, was never
brought to our attention when the appeals
were heard, we may also examine whether the
judgment suffers from an error apparent on
the face of the record. Such an error exists
if of two or more views canvassed on the point
it is possible to hold that the controversy
can be said to admit of only one of them. If
33
the view adopted by the Court in the original
judgment is a possible view having regard to
what the record states, it is difficult to
hold that there is an error apparent on the
face of the record.”
33. Question in the said case arose under the Bengal
Finance (Sales Tax) Act, 1941. The case was based on new
material sought to be adduced by the Revenue to establish
that the transaction amounted to a sale.
34. The foundations, which underlie the review
jurisdiction, has been examined by this Court at some length
in the judgment in S. Nagaraj and others v. State of
Karnataka and another15:
“18. Justice is a virtue which transcends
all barriers. Neither the rules of procedure
nor technicalities of law can stand in its way.
The order of the Court should not be
prejudicial to anyone. Rule of stare decisis
is adhered for consistency but it is not as
inflexible in Administrative Law as in Public
Law. Even the law bends before justice. Entire
concept of writ jurisdiction exercised by the
higher courts is founded on equity and
15 1993 Supp (4) SCC 595
34
fairness. If the Court finds that the order was
passed under a mistake and it would not have
exercised the jurisdiction but for the
erroneous assumption which in fact did not
exist and its perpetration shall result in
miscarriage of justice then it cannot on any
principle be precluded from rectifying the
error. Mistake is accepted as valid reason to
recall an order. Difference lies in the nature
of mistake and scope of rectification,
depending on if it is of fact or law. But the
root from which the power flows is the anxiety
to avoid injustice. It is either statutory or
inherent. The latter is available where the
mistake is of the Court. In Administrative Law
the scope is still wider. Technicalities apart
if the Court is satisfied of the injustice then
it is its constitutional and legal obligation
to set it right by recalling its order. Here
as explained, the Bench of which one of us
(Sahai, J.) was a member did commit an error
in placing all the stipendiary graduates in the
scale of First Division Assistants due to
State's failure to bring correct facts on
record. But that obviously cannot stand in the
way of the Court correcting its mistake. Such
inequitable consequences as have surfaced now
due to vague affidavit filed by the State
cannot be permitted to continue.
19. Review literally and even judicially
means re-examination or re-consideration.
Basic philosophy inherent in it is the
universal acceptance of human fallibility.
35
Yet in the realm of law the courts and even
the statutes lean strongly in favour of
finality of decision legally and properly
made. Exceptions both statutorily and
judicially have been carved out to correct
accidental mistakes or miscarriage of
justice. Even when there was no statutory
provision and no rules were framed by the
highest court indicating the circumstances
in which it could rectify its order the courts
culled out such power to avoid abuse of
process or miscarriage of justice. In Raja
Prithwi Chand Lal Choudhury v. Sukhraj
Rai [AIR 1941 FC 1, 2 : 1940 FCR 78 : (1941)
1 MLJ Supp 45] the Court observed that even
though no rules had been framed permitting
the highest Court to review its order yet it
was available on the limited and narrow
ground developed by the Privy Council and the
House of Lords. The Court approved the
principle laid down by the Privy Council
in Rajunder Narain Rae v. Bijai Govind
Singh [(1836) 1 Moo PC 117 : 2 MIA 181 : 1 Sar
175] that an order made by the Court was final
and could not be altered:
“… nevertheless, if by misprision in
embodying the judgments, by errors have
been introduced, these Courts possess, by
Common law, the same power which the Courts
of record and statute have of rectifying
the mistakes which have crept in …. The
House of Lords exercises a similar power
of rectifying mistakes made in drawing up
its own judgments, and this Court must
36
possess the same authority. The Lords have
however gone a step further, and have
corrected mistakes introduced through
inadvertence in the details of judgments;
or have supplied manifest defects in order
to enable the decrees to be enforced, or
have added explanatory matter, or have
reconciled inconsistencies.”
Basis for exercise of the power was stated in
the same decision as under:
“It is impossible to doubt that the
indulgence extended in such cases is
mainly owing to the natural desire
prevailing to prevent irremediable
injustice being done by a Court of last
resort, where by some accident, without
any blame, the party has not been heard and
an order has been inadvertently made as if
the party had been heard.”
Rectification of an order thus stems from the
fundamental principle that justice is above
all. It is exercised to remove the error and
not for disturbing finality. When the
Constitution was framed the substantive
power to rectify or recall the order passed
by this Court was specifically provided by
Article 137 of the Constitution. Our
Constitution-makers who had the practical
wisdom to visualise the efficacy of such
provision expressly conferred the
substantive power to review any judgment or
order by Article 137 of the Constitution. And
clause (c) of Article 145 permitted this
Court to frame rules as to the conditions
37
subject to which any judgment or order may be
reviewed. In exercise of this power Order XL
had been framed empowering this Court to
review an order in civil proceedings on
grounds analogous to Order XLVII Rule 1 of the
Civil Procedure Code. The expression, ‘for
any other sufficient reason’ in the clause
has been given an expanded meaning and a
decree or order passed under misapprehension
of true state of circumstances has been held
to be sufficient ground to exercise the
power. Apart from Order XL Rule 1 of the
Supreme Court Rules this Court has the
inherent power to make such orders as may be
necessary in the interest of justice or to
prevent the abuse of process of Court. The
Court is thus not precluded from recalling or
reviewing its own order if it is satisfied
that it is necessary to do so for sake of
justice.”
(Emphasis supplied)
35. The decision in S. Nagaraj(supra), has been followed
in various judgements of this Court (See Lily Thomas and
others v. Union of India and others 16 ; Haryana State
Industrial Development Corporation Limited. v. Mawasi and
16 (2000) 6 SCC 224
38
others17; Kamlesh Verma v. Mayawati and others18; Usha Bharti
v. State of Uttar Pradesh and others19 and Vikram Singh
Alias Vicky Walia and another v. State of Punjab and
another20).
36. In Kamlesh Verma (supra), this Court in paragraph 20,
laid down its conclusions, which reads as follows:
“Summary of the principles
20. Thus, in view of the above, the
following grounds of review are maintainable
as stipulated by the statute:
20.1. When the review will be
maintainable:
(i) Discovery of new and important
matter or evidence which, after the
exercise of due diligence, was not within
knowledge of the petitioner or could not
be produced by him;
(ii) Mistake or error apparent on the
face of the record;
(iii) Any other sufficient reason.
17 (2012) 7 SCC 200
18 (2013) 8 SCC 320
19 (2014) 7 SCC 663
20 (2017) 8 SCC 518.
39
The words “any other sufficient reason” have
been interpreted in Chhajju
Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16
LW 37 : AIR 1922 PC 112] and approved by this
Court in Moran Mar Basselios
Catholicos v. Most Rev. Mar Poulose
Athanasius [AIR 1954 SC 526 : (1955) 1 SCR
520] to mean “a reason sufficient on grounds
at least analogous to those specified in the
rule”. The same principles have been
reiterated in Union of India v. Sandur
Manganese & Iron Ores Ltd. [(2013) 8 SCC 337:
JT (2013) 8 SC 275]
20.2. When the review will not be
maintainable:
(i) A repetition of old and overruled
argument is not enough to reopen concluded
adjudications.
(ii) Minor mistakes of inconsequential
import.
(iii) Review proceedings cannot be
equated with the original hearing of the
case.
(iv) Review is not maintainable unless
the material error, manifest on the face
of the order, undermines its soundness or
results in miscarriage of justice.
(v) A review is by no means an appeal in
disguise whereby an erroneous decision is
reheard and corrected but lies only for
patent error.
40
(vi) The mere possibility of two views
on the subject cannot be a ground for
review.
(vii) The error apparent on the face of
the record should not be an error which has
to be fished out and searched.
(viii) The appreciation of evidence on
record is fully within the domain of the
appellate court, it cannot be permitted to
be advanced in the review petition.
(ix) Review is not maintainable when the
same relief sought at the time of arguing
the main matter had been negatived.”
37. In a very recent judgment, in fact, relied upon by the
Union of India, viz., Mukesh (supra), in a review petition
in a criminal appeal, this Court reiterated that a review
is not rehearing of an original matter. Even establishing
another possible view would not suffice [See Vikram Singh
(supra), which was relied upon].
38. The anxiety of this Court that the consideration of
rendering justice remain uppermost in the mind of the Court,
has led to the Constitution Bench judgement in Rupa Ashok
41
Hurra v. Ashok Hurra and another21. It is in the said case
that the concept of a curative petition was devised to
empower a litigant to seek a reconsideration of a matter
wherein the review petition also is unsuccessful. Certain
steps have been laid down in this regard which stand
incorporated in The Supreme Court Rules, 2013 [in Part IV
Order XLVIII thereof].
39. Undoubtedly, any error to be an error on the face of
the record, cannot be one which has to be established by
a long drawn out process of reasoning on points where there
may conceivably be two opinions or if the error requires
lengthy and complicated arguments to establish it, a Writ
of Certiorari would not lie (See Satyanarayan Laxminarayan
Hegde and others v. Mallikarjun Bhavanappa Tirumale22 ).
This principle is equally applicable to a review petition
also.
21 (2002) 4 SCC 388
22 AIR 1960 SC 137
42
40. On a conspectus of the above decisions, the following
conclusions appeared to be inevitable and they also provide
the premise for review:
Justice above all. While a review petition has not
been understood as an appeal in disguise and a mere
erroneous decision may not justify a review, a decision
which betrays an error which is apparent, does entitle
the court to exercise its jurisdiction under Article
137 of the Constitution. The founding fathers were
conscious that this Court was the final Court. There
are two values, which in any system of law, may collide.
On the one hand, recognizing that men are not
infallible and the courts are manned by men, who are
prone to err, there must be a safety valve to check the
possibility of grave injustice being reached to a
litigant, consequent upon an error, which is palpable
or as a result of relevant material despite due
diligence by a litigant not being made available or
other sufficient reason. The other value which is
43
ever-present in the mind of the law giver, is, there
must be finality to litigation. Be it judgments of a
final court, if it becomes vulnerable to
indiscriminate reopening, unless a strong ground
exists, which itself is based on manifest error
disclosed by the judgment or the other two grounds
mentioned in Order XLVII of the CPC in a civil matter,
it would spawn considerable inequity.
41. It must be noticed that the principle well-settled in
regard to jurisdiction in review, is that a review is not
an appeal in disguise. The applicant, in a review, is, on
most occasions, told off the gates, by pointing out that
his remedy lay in pursuing an appeal. In the case of a
decision rendered by this Court, it is to be noticed that
the underpinning based on availability of an appeal, is not
available as this Court is the final Court and no appeal
lies.
44
42. It is no doubt true that the Supreme Court Rules, 2013,
certain powers are conferred on the Registrar as also on
the Judge holding Court in Chambers and appeals, indeed,
are provided in respect of certain orders passed by the
Registrar.
43. The fact that no appeal lies from the judgment of this
Court may not, however, result in the jurisdiction of this
Court under Article 137 of the Constitution being enlarged.
However, when the Court is invited to exercise its power
of review, this aspect may also be borne in mind, viz., that
unlike the other courts from which an appeal may be provided
either under the Constitution or other laws, or by special
leave under Article 136 of the Constitution, no appeal lies
from the judgment of this Court, and it is in that sense,
the final Court. The underlying assumption for the
principle that a review is not an appeal in disguise, being
that the decision is appealable, is really not available
in regard to a decision rendered by this Court, is all that
is being pointed out.
45
44. A review petition is maintainable if the impugned
judgment discloses an error apparent on the face of the
record. Unlike a proceeding in Certiorari jurisdiction,
wherein the error must not only be apparent on the face of
the record, it must be an error of law, which must be
apparent on the face of the record, for granting review
under Article 137 of the Constitution read with Order XLVII
Rule 1 of the CPC, the error can be an error of fact or of
law. No doubt, it must be apparent on the face of record.
Such an error has been described as a palpable error or
glaring omission. As to what constitutes an error apparent
on the face of record, is a matter to be found in context
of the facts of each case. It is worthwhile to refer to the
following discussion in this regard by this Court in Hari
Vishnu Kamath v. Ahmad Ishaque and Others
23, wherein, this
Court held as follows:
“23. It may therefore be taken as
settled that a writ of certiorari could be
issued to correct an error of law. But it is
23 AIR 1955 SC 233
46
essential that it should be something more
than a mere error; it must be one which must
be manifest on the face of the record. The
real difficulty with reference to this
matter, however, is not so much in the
statement of the principle as in its
application to the facts of a particular
case. When does an error cease to be mere
error, and become an error apparent on the
face of the record? Learned counsel on either
side were unable to suggest any clear-cut
rule by which the boundary between the two
classes of errors could be demarcated.
Mr Pathak for the first respondent
contended on the strength of certain
observations of Chagla, C.J. in Batuk K.
Vyas v. Surat Municipality [AIR 1953 Bom
133] that no error could be said to be
apparent on the face of the record if it was
not self-evident, and if it required an
examination or argument to establish it. This
test might afford a satisfactory basis for
decision in the majority of cases. But there
must be cases in which even this test might
break down, because judicial opinions also
differ, and an error that might be considered
by one Judge as self-evident might not be so
considered by another. The fact is that what
is an error apparent on the face of the record
cannot be defined precisely or exhaustively,
there being an element of indefiniteness
inherent in its very nature, and it must be
left to be determined judicially on the facts
of each case.”
(Emphasis supplied)
47
45. The view of this Court, in the decision in Girdhari Lal
Gupta (supra) as also in Deo Narain Singh (supra), has been
noticed to be that if the relevant law is ignored or an
inapplicable law forms the foundation for the judgement,
it would provide a ground for review. If a court is oblivious
to the relevant statutory provisions, the judgment would,
in fact, be per incuriam. No doubt, the concept of per
incuriam is apposite in the context of its value as the
precedent but as between the parties, certainly it would
be open to urge that a judgment rendered, in ignorance of
the applicable law, must be reviewed. The judgment, in such
a case, becomes open to review as it would betray a clear
error in the decision.
46. As regards fresh material forming basis for review, it
must be of such nature that it is relevant and it undermines
the verdict. This is apart from the requirement that it
could not be produced despite due diligence.
47. The dismissal of a special leave petition takes place
at two levels. In the first place, the Court may dismiss
48
or reject a special leave petition at the admission stage.
Ordinarily, no reasons accompany such a decision. In
matters where a special leave petition is dismissed after
notice is issued, also reasons may not be given ordinarily.
Several elements enter into the consideration of this Court
where a special leave petition is dismissed. The task for
a review applicant becomes formidable as reasons are not
given. An error apparent on the face of the record becomes
difficult to establish. In a writ petition where pleadings
are exchanged and reasons are given in support of the
verdict, a self-evident error is detected without much
argument. No doubt, a Court, in review, does not
reappreciate and correct a mere erroneous decision. That
reappreciation is tabooed, is not the same as holding that
a Court will not appreciate the case as reflected in the
pleadings and the law by which the Court is governed.
48. In this case, the short point, which this Court is
called upon to consider, is the effect of the impugned
judgment not dealing with a binding decision rendered by
49
a Constitution Bench which was relied upon by the
petitioners in Writ Petition (Criminal) No. 298 of 2018 and
rendered in Lalita Kumari (supra). It is apposite that I
set out what this Court, speaking through the aforesaid
Constitution Bench judgment, has laid down in paragraph
120:
“Conclusion/Directions
120. In view of the aforesaid discussion,
we hold:
120.1. The registration of FIR is
mandatory under Section 154 of the Code, if
the information discloses commission of a
cognizable offence and no preliminary
inquiry is permissible in such a situation.
120.2. If the information received does
not disclose a cognizable offence but
indicates the necessity for an inquiry, a
preliminary inquiry may be conducted only to
ascertain whether cognizable offence is
disclosed or not.
120.3. If the inquiry discloses the
commission of a cognizable offence, the FIR
must be registered. In cases where
preliminary inquiry ends in closing the
complaint, a copy of the entry of such closure
50
must be supplied to the first informant
forthwith and not later than one week. It must
disclose reasons in brief for closing the
complaint and not proceeding further.
120.4. The police officer cannot avoid his
duty of registering offence if cognizable
offence is disclosed. Action must be taken
against erring officers who do not register
the FIR if information received by him
discloses a cognizable offence.
120.5. The scope of preliminary inquiry is
not to verify the veracity or otherwise of the
information received but only to ascertain
whether the information reveals any
cognizable offence.
120.6. As to what type and in which cases
preliminary inquiry is to be conducted will
depend on the facts and circumstances of each
case. The category of cases in which
preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family
disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal
delay/laches in initiating criminal
prosecution, for example, over 3 months'
delay in reporting the matter without
satisfactorily explaining the reasons for
delay.
The aforesaid are only illustrations and
not exhaustive of all conditions which may
warrant preliminary inquiry.
51
120.7. While ensuring and protecting the
rights of the accused and the complainant, a
preliminary inquiry should be made
time-bound and in any case it should not
exceed 7 days. The fact of such delay and the
causes of it must be reflected in the General
Diary entry.
120.8. Since the General Diary/Station
Diary/Daily Diary is the record of all
information received in a police station, we
direct that all information relating to
cognizable offences, whether resulting in
registration of FIR or leading to an inquiry,
must be mandatorily and meticulously
reflected in the said diary and the decision
to conduct a preliminary inquiry must also be
reflected, as mentioned above.”
(Emphasis supplied)
49. It is their contention, therefore, that the writ
petition came to be clubbed along with other writ petitions.
This Court proceeded to undertake judicial review of the
processes which led to the decision to purchase 36 planes
going back on the earlier decision which was to purchase
136 planes.
50. According to the petitioners, therefore, this Court
committed a clear error in not focusing on the relief sought
in their writ petition which was based on the Constitution
52
Bench of this Court which was binding on a Bench of lesser
strength (three). All this Court is being asked to do,
according to the petitioners, having regard to the law
binding on it, is to direct the registration of the FIR.
There is also relief sought to submit reports in the same.
51. The procedure, which is to be adopted by the
authorities, has been elaborated upon. There can be no
escape from the mandatory procedure laid down by this Court.
52. Where a party institutes a proceeding, if the
proceeding is of a civil nature, there would be a cause of
action. There would be reliefs sought on the basis of the
cause of action. Materials are produced both in support and
against the claim. The Court thereafter renders a judgement
either accepting the case or rejecting the case. When the
Court rejects the case, it necessarily involves refusing
to grant the relief sought for by the plaintiff/petitioner.
It may transpire that the petitioner may not press for
certain reliefs. The Court may, after applying its mind to
the case, find that the petitioner is not entitled to the
53
relief and decline the prayers sought. It may also happen
that the court does refer to the reliefs sought but
thereafter does not undertake any discussion regarding the
case for the relief sought and proceeds to non-suit the
party. It is clear that in this case, it is the last aspect
which is revealed by the judgment sought to be reviewed.
53. A judgment may be silent in regard to a relief which
is sought by a party. It is apposite, in this regard, to
notice Section 11 of the CPC. If a decree is silent, as
regards any relief which is claimed by the plaintiff,
Explanation V to Section 11 declares that the relief must
be treated as declined. The Explanation reads as follows:
“Section 11, Explanation V.- Any relief
claimed in the plaint, which is not expressly
granted by the decree, shall, for the
purposes of this section, be deemed to have
been refused.”
54. No doubt, if the relief is expressly refused, then
also, the matter would become res judicata. It is,
therefore, of vital importance that when a case is decided,
54
the Court considers the claim and the relief sought, applies
the Statute which is applicable and the law which is laid
down particularly when it is by a Constitution Bench in
deciding the case. Just as, in the case of a judgement, where
the applicable Statute, not being applied, would result in
a judgment which becomes amenable to be corrected in review,
there can be no reason why when a binding judgment of this
Court, which is enlisted by the party, is ignored, it should
have a different consequence. In fact, since a review under
Article 137 of the Constitution, in a civil matter, is to
be exercised, based on what is contained in Order XLVII Rule
1 of the CPC, the Explanation therein, may shed some light.
The Explanation which was inserted by the Act of 1976,
following the recommendations of the Law Commission of
India, in its 54th Report, declares that the law is laid down
by a superior court reversing an earlier decision, on a
question of law, will not be a ground for the review of a
judgment.
55
55. The Law Commission, in fact, in the said Report
reasoned that adopting the view taken by the Kerala High
Court in the decision in Thadikulangara Pylee's son
Pathrose v. Ayyazhiveettil Lakshmi Amma’s son Kuttan and
others24 that a later judgment would amount to discovery of
new and important matter, and in any case an error on the
face of the record, would keep alive the possibility of
review indefinitely. This impliedly would mean that when
a court decides a case, it must follow judgments which are
binding on it. This is not to say that a smaller Bench of
this Court, if it entertains serious doubts about the
correctness of an earlier judgment, may not consider
referring the matter to a larger Bench. However, as long
as it does not undertake any such exercise, it cannot refuse
to follow the judgment and that too of a Constitution Bench.
Any such refusal to follow the decision binding on it, would
undoubtedly disclose an error which would be palpable being
self-evident.
24 AIR 1969 KER 186
56
56. In this case, when this Court rendered the judgment,
sought to be reviewed, the judgment of the Constitution
Bench in Lalita Kumari (supra), undoubtedly, held the field
having been rendered on 12.11.2013. The said judgement was,
indeed, pressed before the Court.
57. To put it in other words, having regard to the relief
sought by the petitioners, the dismissal of the writ
petition would be, according to petitioners, in the teeth
of a binding judgment of this Court. Just as in the case
of a binding Statute being ignored and giving rise to the
right to file a review, neither on logic nor in law would
the refusal to follow a binding judgement, qualify for a
different treatment if a review is filed. Be it a civil or
a criminal matter, an error apparent on the face of the
record, furnishes a ground for review.
58. This is not a case where an old argument is being
repeated in the sense that after it has been considered and
rejected, it is re-echoed in review. It is an argument which
was undoubtedly pressed in the original innings. It is not
57
the fault of the party if the court chose not even to touch
upon it. No doubt, it may be different in a case where a
ground or relief sought is ignored and it is found justified
otherwise. But where a ground, which is based on principles
laid down by a Constitution Bench of this Court, is not dealt
with at all and it is complained of in review, it will rob
the review jurisdiction of the very purpose it is intended
to serve, if the complaint otherwise meritorious, is not
heeded to.
59. A learned Single Judge, in an arbitration request,
turned down a plea to appoint a person as Arbitrator. In
review, the request was sought to be resurrected. It was
in this context that a learned Single Judge of this Court,
sitting in Chambers, in the decision reported in Jain
Studios Ltd. (supra), laid down that once such a relief was
refused in the main matter, no review petition would lie.
However, following the said judgment, this Court, in the
decision reported in Kamlesh Verma (supra), summarising the
principle, came to declare in paragraph 20.2(ix), that
58
review is not maintainable when the same relief sought at
the time of arguing the main matter, has been negatived.
60. With regard to the said principle, the context in which
it was laid down in the decision by a learned Single Judge
in Jain Studios Ltd. (supra), has already been noted. The
said principle, as stated, cannot be treated as one that
is cast in stone to apply irrespective of facts.
Illustrations come to the fore where it is better related
to the factual context and not as an immutable axiom not
admitting of exceptions. Take a case where a Writ of
Mandamus is sought for after a demand is made. The demand
is placed on record and is not even controverted. In the
main proceeding, Mandamus is refused on the ground that
there is no demand. It amounts to denial of relief. But the
verdict is clearly afflicted with palpable error, and if
the complaint is made in a review about the denial of relief
on a ground which is patently untenable, certainly, a review
would lie. There can be many other examples where the denial
of relief is palpably wrong and self-evident. It is
59
different, if on an appreciation of evidence or applying
the law, and where two views are possible, relief is
refused. In fact, broadly, denial of relief can occur in
two situations. There are situations where the grant of
relief itself is discretionary. There are other situations
where if a certain set of facts are established, the
plaintiff/appellant cannot be told off the gates. A
defendant, who appeals against a time-barred suit being
decreed, establishes that a suit is time-barred, and the
facts, as stated in the judgment itself, unerringly point
to such premise. If still, the Appellate Court decrees the
suit and denies relief to the defendant/appellant, can it
be said that a review will not lie? The answer can only be
that a review will lie.
61. To test the hypothesis that on the facts this Court was
wrong and manifestly so in declining in not following the
dicta of the Constitution Bench in Lalita Kumari (supra),
a reverse process of reasoning can be employed to appreciate
the matter further. Can it be said that refusing to follow
60
a Constitution Bench, laying down the response of the
Officers to a complaint alleging the commission of a
cognizable offence, has not been observed in its breach?
If the review petition, in other words, is rejected, in
substance this Court would be upholding its judgment which
when placed side-by-side with the pronouncement of the
Constitution Bench in Lalita Kumari (supra), the two
judgments cannot be squared. It must co-exist despite the
patent departure, the impugned judgment manifests from the
law laid down by the Constitution Bench. But that being
impossible, the Constitution Bench must prevail and the
impugned judgment stand overwhelmed to the extent it is
inconsistent. It may be true that in view of the fact that
four writ petitions were heard together, this Court has
proceeded to focus on the merits of the matters itself
undoubtedly from the standpoint of the limited judicial
review which it could undertake in a matter of the nature
in question. On the basis of the said exercise, the Court
has concluded that there were no materials for the Court
to interfere. But this is a far cry from holding that it
61
will not follow the mandate of the Constitution Bench of
this Court in regard to the steps to be undertaken by the
Officer on receipt of a complaint purporting to make out
the commission of a cognizable offence. This Court may
declare that it was non-suiting the petitioners seeking
judicial review, having regard to the absence of materials
which would have justified holding the award of the contract
in question vulnerable. It would not mean that it is either
precluded or that it was not duty-bound to still direct
that the law laid down by the Constitution Bench in Lalita
Kumari (supra) be conformed to.
62. If the complaint of the petitioner does make out the
commission of the cognizable offence and FIR is to be
registered and matter investigated, it will be no answer
to suggest that this Court, has approved of the matter in
judicial review proceedings under Article 32 of the
Constitution and making it clear that entire exercise must
be viewed from the prism of the limited judicial review the
Court undertakes in such proceedings and this Court would
62
end up paying less than lip service to the law laid down
by the Constitution Bench in Lalita Kumari (supra).
63. As far as the judicial review of the award of the
contract is concerned, apart from the fact that a review
does not permit reappreciation of the materials, there is
the aspect of the petitioner seeking judicial review
approaching the court late in the day. There is also the
aspect relating to the court’s jurisdiction not extending
to permit it to sit in judgment over the wisdom of the
Government of the day, particularly in matters relating to
purchase of the goods involved in this case. Therefore, in
regard to review, sought in relation to the findings
relating to the judicial review, they cannot be found to
be suffering from palpable errors.
64. Though, the stand of the Government of India has been
noticed, which is the second respondent in Writ Petition
(Criminal) No. 298 of 2018, the party, which has a say in
the matter or rather a duty in the matter in terms of the
law laid down by this Court in Lalita Kumari (supra),
63
is the first respondent, viz., Central Bureau of
Investigation (CBI) before which petitioners have moved the
Exhibit P1-complaint. It is quite clear that the first
respondent, the premiere investigating agency in the
country, is expected to act completely independent of the
Government of the day. The Government of India cannot speak
on behalf of the first respondent. Whatever that be, the
fact remains that a decision in terms of what is laid down
in Lalita Kumari (supra), is to be taken.
65. One objection, which has apparently weighed
with my learned and noble Brother, is that, this Court,
having dealt with the merits of the case, there could be
no occasion for directing the compliance in terms of Lalita
Kumari (supra) by the first respondent. Reasoning of the
Court has been noticed. This Court has approached the matter
proclaiming that it was doing so in the context of somewhat
constricted power of judicial review. It is further made
clear that the Court found that it is neither appropriate
nor is it within the experience of this Court to step into
64
the arena of what is technically feasible. This Court also
did not find any substantial material on record to show it
to be a case of commercial favouritism to any party by the
Indian Government as the option to choose the IOP did not
rest with the Indian Government. In the concluding
paragraph, it was clearly mentioned that the Court’s views
were primarily from the standpoint of exercise of
jurisdiction under Article 32 of the Constitution, which
was invoked in this case.
66. The question would, therefore arise, whether in such
circumstances, the relief sought in Writ Petition
(Criminal) No. 298 of 2018, seeking compliance with Lalita
Kumari (supra), was wrongly declined. Differently put, the
question would arise whether the petitioners, having
participated in the proceedings and inviting the Court to
pronounce on the merits as well and cannot persuade the
Court to take a different view on the merits, could still
ask the Court to find an error and that too a grave error
65
in not heeding to the prayer in Writ Petition (Criminal)
No. 298 of 2018.
67. As noticed earlier, it is one thing to say that with
the limited judicial review, available to the Court, it did
not find merit in the case of the petitioners regarding
failure to follow the DPP, presence of over-pricing,
violation of Offset Guidelines to favour a party, and
another thing to direct action on a complaint in terms of
the law laid down by this Court. It is obvious that this
Court was not satisfied with the material which was placed
to justify a decision in favour of the petitioners. It is
also apparent that the Court has reminded itself of the fact
that it was neither appropriate nor within the experience
of the Court to step into the arena. It is equally
indisputable that the entire findings are to be viewed from
the standpoint of the nature of the jurisdiction it
exercised. There are no such restrictions and limitations
on an Officer investigating a case under the law. Present
a case, making out the commission of cognizable offence,
66
starting with the lodging of the FIR after, no doubt, making
a preliminary inquiry where it is necessary, the fullest
of amplitude of powers under the law, no doubt, are
available to the Officer. The discovery of facts by Officer
carrying out an investigation, is completely different from
findings of facts given in judicial review by a Court. The
entire proceedings are completely different.
68. In the impugned judgment, under the heading “Offsets”,
there is, at paragraph 28, reference to the complaint that
favouring the Indian Business Group, has resulted in an
offence being committed under the Prevention of Corruption
Act. This Court extracted Clause (4.3) of the Offset Clause
which provides that OEM/Vendor, Tier-1 Sub-Vendor will be
free to select the Indian Offset Partner for implementing
the offset obligation provided it has not been barred from
doing business with the Ministry of Defence. This Court
dealt with the same contentions in paragraph 32 of the
impugned judgment, which reads as follows:
67
“32. It is no doubt true that the
company, Reliance Aerostructure Ltd., has
come into being in the recent past, but the
press release suggests that there was
possibly an arrangement between the parent
Reliance Company and Dassault starting from
the year 2012. As to what transpired between
the two corporates would be a matter best left
to them, being matters of their commercial
interests, as perceived by them. There has
been a categorical denial, from every side,
of the interview given by the former French
President seeking to suggest that it is the
Indian Government which had given no option
to the French Government in the matter. On the
basis of materials available before us, this
appears contrary to the clause in DPP 2013
dealing with IOPs which has been extracted
above. Thus, the commercial arrangement, in
our view, itself does not assign any role to
the Indian Government, at this stage, with
respect to the engagement of IOP. Such matter
is seemingly left to the commercial decision
of Dassault. That is the reason why it has
been stated that the role of the Indian
Government would start only when the
vendor/OEM submits a formal proposal, in the
prescribed manner, indicating details of
IOPs and products for offset discharge. As
far as the role of HAL, insofar as the
procurement of 36 aircrafts is concerned,
there is no specific role envisaged. In fact,
the suggestion of the Government seems to be
that there were some contractual problems and
Dassault was circumspect about HAL carrying
out the contractual obligation, which is also
stated to be responsible for the
non-conclusion of the earlier contract.”
68
69. The very first statement in paragraph 32 would appear
to point to the Court taking into account Press Release
suggesting that there was possibly an arrangement between
the parent Reliance Company and Dassault starting from the
year 2012. It is stated as to what transpired between the
two Corporates would be best left to them. In this regard,
in the Review Petition, it is pointed out that this Court
has grossly erred in confusing Reliance Industries of which
Mr. Mukesh Ambani is the Chairman with that of Reliance
Infrastructure of which Mr. Anil Ambani is the Chairman.
It is further contended that Mr. Anil Ambani’s Reliance
Infrastructure is the parent company of Reliance
Aerostructure Limited (RAL), which is the beneficiary of
the Offset Contract, and there is no possibility of any
arrangement between Reliance Infrastructure Limited with
Dassault Aviation in 2012. There appears to be considerable
merit in the case of the petitioners that in this regard,
this Court had fallen into clear error that there was
possibly an arrangement between the parent Reliance Company
and Dassault dated back to the year 2012. The parent
69
Reliance Company which was referred in the judgment is
Reliance Industries which is a completely different
corporate body from Reliance Infrastructure which appears,
according to the petitioners, to be the parent company of
RAL. Thereafter, there is reference to the denial of the
interview by the Former French President. It is further
noted that on the basis of the materials, the commercial
arrangement does not assign any role to the Indian
Government at this stage with reference to the arrangement
of the IOP. After making certain observations about HAL and
role of the Indian Government starting only when the
Vendor/OEM submitted a formal proposal, this Court went on
to make the observation contained in paragraph 33 which has
already been extracted.
70. From the standpoint of the jurisdiction in judicial
review proceedings and under Article 32 of the
Constitution, as also absence of any substantial material
to show to be a case of commercial favouritism, it may be
true that the findings other than which has been referred
70
to may not disclose a palpable error. This Court’s lack of
experience of what is technically feasible, as noted by the
Court, has weighed with it.
POWERS OF POLICE OFFICER WIDER AND DIFFERENT FROM THAT OF
WRIT COURT
71. The ‘statutory right of the police to investigate about
a cognizable offence’ is well settled. In King-Emperor v.
Nazir Ahmad Khwaja25, the Privy Council has, inter alia,
held as follows:
“In India as has been shown there is a
statutory right on the part of the police to
investigate the circumstances of an alleged
cognizable crime without requiring any
authority from the judicial authorities, and
it would as their Lordships think, be an
unfortunate result if it should be held
possible to interfere with those statutory
rights by an exercise of the inherent
jurisdiction of the court. The functions of
the judiciary and the police are
complementary not overlapping and the
combination of individual liberty with a due
observance of law and order is only to be
obtained by leaving each to exercise its own
function, always of course subject to the
right of the Court to intervene in an
25 AIR 1945 PC 18
71
appropriate case when moved under S. 491 of
the C.P.C. to give directions in the nature
of habeas corpus. In such a case as the
present, however, the Courts functions begin
when a charge is preferred before it and not
until then. …”
72. Following the same, this Court in M.C. Abraham and
another v. State of Maharashtra and others 26 , held as
follows:
“13. This Court held in the case
of J.A.C. Saldanha [(1980) 1 SCC 554 : 1980
SCC (Cri) 272] that there is a clear-cut and
well-demarcated sphere of activity in the
field of crime detection and crime
punishment. Investigation of an offence is
the field exclusively reserved by the
executive through the police department, the
superintendence over which vests in the State
Government. It is the bounden duty of the
executive to investigate, if an offence is
alleged, and bring the offender to book. Once
it investigates and finds an offence having
been committed, it is its duty to collect
evidence for the purpose of proving the
offence. …”
73. The Police Officer is endowed with wide powers. Nothing
that constricted or limited this Court in the impugned
26 (2003) 2 SCC 649
72
judgment, applies to an Officer who has undertaken an
investigation into the commission of a cognizable offence.
In fact, in this case, the first respondent-CBI is the
premiere investigation agency of the country. It is
equipped to undertake all forms of investigations, be it
technical or otherwise. The factors which concerned this
Court can be recapitulated to bring out the true role of
an Investigator. This Court held, it is neither appropriate
nor within the Court’s experience to step into what is
technical feasible or not. No such limitation applies to
an Investigator of a cognizable offence. What is important
is that it is the duty of the Investigating Officer to
collect all material, be it technical or otherwise, and
thereafter, submit an appropriate report to the court
concerned, be it a final report or challan depending upon
the materials unearthed. This Court relied on absence of
substantial material. This is not a restriction on the
Investigating Officer. Far from it, the very purpose of
conducting an investigation on a complaint of a cognizable
offence being committed, is to find material. There can be
73
no dispute that the first respondent is the premiere
investigating agency in the country which assumedly employs
state of the art techniques of investigation.
Professionalism of the highest quality, which embraces
within it, uncompromising independence and neutrality, is
expected of it. Again, the restriction which underlies the
impugned judgment is the limited scope of judicial review
and also the writ jurisdiction under Article 32 of the
Constitution. It is clear as a mountain stream that both
these considerations are totally irrelevant for an Officer
who has before him a complaint making out the commission
of a cognizable offence.
74. However, the directions contained in paragraph 120 of
the Constitution Bench decision in Lalita Kumari (supra)
must be further appreciated. In this case, the petitioners
in Writ Petition (Criminal) No. 298 of 2018, have indeed
moved an elaborate written complaint before the first
respondent-CBI. The complaint that is made, attempts to
make out the commission of a cognizable offences under the
74
Prevention of Corruption Act. Paragraph 120.1 of Lalita
Kumari (supra), declares registration of FIR is mandatory
if information discloses commission of a cognizable
offence. The Constitution Bench debarred any preliminary
inquiry in such a situation. It is apposite that paragraph
120.5 is noticed at this stage. This Court held that the
scope of the preliminary inquiry is not to verify the
veracity or otherwise of the information received but it
is only to ascertain whether the information reveals any
cognizable offence. Coming back to paragraph 120.2, it is
laid down by this Court that if the information does not
disclose a cognizable offence but indicates the necessity
for an inquiry, a preliminary inquiry may be conducted only
to ascertain whether cognizable offence is disclosed or
not. It is beyond dispute that the offences which are
mentioned in the complaint filed by the petitioners in Writ
Petition (Criminal) No. 298 of 2018 are cognizable
offences. Again, coming back to paragraph 120.3 in Lalita
Kumari (supra) read with paragraphs 120.2 and 120.5, if the
inquiry discloses commission of a cognizable offence, the
75
FIR must be registered. Where, however, the preliminary
inquiry ends in closing the complaint, the first informant
must be informed in writing forthwith and not later than
a week. That apart, reasons, in brief, must also be
disclosed.
75. Paragraph 120.6 deals with the type of cases in which
preliminary inquiry may be made. Corruption cases are one
of the categories of cases where a preliminary inquiry may
be conducted. Also, cases where there is abnormal delay or
laches in initiating criminal prosecution, for example over
three months delay in reporting the matter without
satisfactorily explaining the reasons for the delay. As can
be noticed from paragraph 120.6, medical negligence cases,
matrimonial disputes, commercial offences are also cases
in which a preliminary inquiry may be made. In order to
appreciate the scope of paragraph 120.6, it is necessary
to advert to paragraphs 115 to 119, which read as follows:
“Exceptions
115. Although, we, in unequivocal
terms, hold that Section 154 of the Code
76
postulates the mandatory registration of
FIRs on receipt of all cognizable offences,
yet, there may be instances where preliminary
inquiry may be required owing to the change
in genesis and novelty of crimes with the
passage of time. One such instance is in the
case of allegations relating to medical
negligence on the part of doctors. It will be
unfair and inequitable to prosecute a medical
professional only on the basis of the
allegations in the complaint.
116. In the context of medical
negligence cases, in Jacob Mathew [Jacob
Mathew v. State of Punjab, (2005) 6 SCC 1:
2005 SCC (Cri) 1369], it was held by this
Court as under: (SCC p. 35, paras 51-52)
“51. We may not be understood as
holding that doctors can never be
prosecuted for an offence of which
rashness or negligence is an essential
ingredient. All that we are doing is to
emphasise the need for care and caution
in the interest of society; for, the
service which the medical profession
renders to human beings is probably the
noblest of all, and hence there is a need
for protecting doctors from frivolous or
unjust prosecutions. Many a complainant
prefer recourse to criminal process as
a tool for pressurising the medical
professional for extracting uncalled
for or unjust compensation. Such
77
malicious proceedings have to be guarded
against.
52. Statutory rules or executive
instructions incorporating certain
guidelines need to be framed and issued
by the Government of India and/or the
State Governments in consultation with
the Medical Council of India. So long as
it is not done, we propose to lay down
certain guidelines for the future which
should govern the prosecution of doctors
for offences of which criminal rashness
or criminal negligence is an ingredient.
A private complaint may not be
entertained unless the complainant has
produced prima facie evidence before the
court in the form of a credible opinion
given by another competent doctor to
support the charge of rashness or
negligence on the part of the accused
doctor. The investigating officer
should, before proceeding against the
doctor accused of rash or negligent act
or omission, obtain an independent and
competent medical opinion preferably
from a doctor in government service,
qualified in that branch of medical
practice who can normally be expected to
give an impartial and unbiased opinion
applying the Bolam [Bolam v. Friern
Hospital Management Committee, (1957) 1
WLR 582 : (1957) 2 All ER 118] test to
the facts collected in the
investigation. A doctor accused of
78
rashness or negligence, may not be
arrested in a routine manner (simply
because a charge has been levelled
against him). Unless his arrest is
necessary for furthering the
investigation or for collecting
evidence or unless the investigating
officer feels satisfied that the doctor
proceeded against would not make himself
available to face the prosecution unless
arrested, the arrest may be withheld.”
117. In the context of offences relating
to corruption, this Court in P.
Sirajuddin [P. Sirajuddin v. State of
Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240]
expressed the need for a preliminary inquiry
before proceeding against public servants.
118. Similarly, in Tapan Kumar
Singh [CBI v. Tapan Kumar Singh, (2003) 6
SCC 175 : 2003 SCC (Cri) 1305] , this Court
has validated a preliminary inquiry prior to
registering an FIR only on the ground that at
the time the first information is received,
the same does not disclose a cognizable
offence.
119. Therefore, in view of various
counterclaims regarding registration or
non-registration, what is necessary is only
that the information given to the police must
disclose the commission of a cognizable
79
offence. In such a situation, registration of
an FIR is mandatory. However, if no
cognizable offence is made out in the
information given, then the FIR need not be
registered immediately and perhaps the
police can conduct a sort of preliminary
verification or inquiry for the limited
purpose of ascertaining as to whether a
cognizable offence has been committed. But,
if the information given clearly mentions the
commission of a cognizable offence, there is
no other option but to register an FIR
forthwith. Other considerations are not
relevant at the stage of registration of FIR,
such as, whether the information is falsely
given, whether the information is genuine,
whether the information is credible, etc.
These are the issues that have to be verified
during the investigation of the FIR. At the
stage of registration of FIR, what is to be
seen is merely whether the information given
ex facie discloses the commission of a
cognizable offence. If, after investigation,
the information given is found to be false,
there is always an option to prosecute the
complainant for filing a false FIR.”
(Emphasis supplied)
76. As can be noticed that medical negligence cases
constitute an exception to the general rule which provides
for mandatory registration of FIR in respect of all
80
cognizable offences. The Court, in clear terms, held that
it will be unfair and inequitable to prosecute a medical
professional only on the basis of the allegations in the
complaint. It relied on a decision of this Court in Jacob
Mathew v. State of Punjab and another27.
77. In paragraph 117 of Lalita Kumar (Supra), this Court
referred to the decision in P. Sirajuddin, Etc. v. State
of Madras, Etc.28 and took the view that in the context of
offences related to corruption in the said decision, the
Court has expressed a need for a preliminary inquiry before
proceeding against public servants.
78. In P. Sirajuddin (supra), relied upon by the
Constitution Bench in Lalita Kumari (supra), what this
Court has held, and which has apparently been relied upon
by the Constitution Bench though not expressly referred to
is the following statement contained in paragraph 17:
27 (2005) 6 SCC 1
28 (1970) 1 SCC 595
81
“17. … Before a public servant, whatever
be his status, is publicly charged with acts
of dishonesty which amount to serious
misdemeanour or misconduct of the type
alleged in this case and a first information
is lodged against him, there must be some
suitable preliminary enquiry into the
allegations by a responsible officer. The
lodging of such a report against a person,
specially one who like the appellant occupied
the top position in a department, even if
baseless, would do incalculable harm not only
to the officer in particular but to the
department he belonged to, in general. …”
(Emphasis supplied)
79. In Lalita Kumari (supra), one of the contentions which
was pressed before the Court was that in certain situations,
preliminary inquiry is necessary. In this regard, attention
of the Court was drawn to CBI Crime Manual. The following
paragraphs of the Lalita Kumari (supra) may be noticed,
which read as follows:
“89. Besides, the learned Senior
Counsel relied on the special procedures
prescribed under the CBI Manual to be read
into Section 154. It is true that the concept
of “preliminary inquiry” is contained in
Chapter IX of the Crime Manual of CBI.
However, this Crime Manual is not a statute
82
and has not been enacted by the legislature.
It is a set of administrative orders issued
for internal guidance of the CBI officers. It
cannot supersede the Code. Moreover, in the
absence of any indication to the contrary in
the Code itself, the provisions of the CBI
Crime Manual cannot be relied upon to import
the concept of holding of preliminary inquiry
in the scheme of the Code of Criminal
Procedure. At this juncture, it is also
pertinent to submit that CBI is constituted
under a special Act, namely, the Delhi
Special Police Establishment Act, 1946 and it
derives its power to investigate from this
Act.
90. It may be submitted that Sections
4(2) and 5 of the Code permit special
procedures to be followed for special Acts.
Section 4 of the Code lays down as under:
“4.Trial of offences under the Indian
Penal Code and other laws.—(1) All
offences under the Indian Penal Code (45
of 1860) shall be investigated, inquired
into, tried, and otherwise dealt with
according to the provisions hereinafter
contained.
(2) All offences under any other law
shall be investigated, inquired into,
tried, and otherwise dealt with according
to the same provisions, but subject to any
83
enactment for the time being in force
regulating the manner or place of
investigating, inquiring into, trying or
otherwise dealing with such offences.”
It is thus clear that for the offences under
the laws other than IPC, different provisions
can be laid down under a special Act to
regulate the investigation, inquiry, trial,
etc. of those offences. Section 4(2) of the
Code protects such special provisions.
91. Moreover, Section 5 of the Code lays
down as under:
“5.Saving.—Nothing contained in this
Code shall, in the absence of a specific
provision to the contrary, affect any
special or local law for the time being in
force, or any special jurisdiction or
power conferred, or any special form of
procedure prescribed, by any other law for
the time being in force.”
Thus, special provisions contained in the
DSPE Act relating to the powers of CBI are
protected also by Section 5 of the Code.
92. In view of the above specific
provisions in the Code, the powers of CBI
under the DSPE Act, cannot be equated with the
powers of the regular State Police under the
Code.”
84
80. It is thereafter that under the caption “Exceptions”,
the Constitution Bench has proceeded to deal with offences
relating to corruption as already noted and contained in
paragraph 117 of Lalita Kumari (supra), which has already
been extracted. Chapter 8 of the CBI Crime Manual deals with
complaints and source of information. Chapter 9 deals with
preliminary enquiries. Clause (8.6) of Chapter 8 provides
for the categories of complaints which are to be considered
fit for verification. It provides, inter alia, complaints
pertaining to subject matters which fall within the purview
of the CBI, either received from official channels or from
well-established and recognized organizations or from
individuals who are known and who can be traced and
examined. Undoubtedly, petitioners are known and can be
traced and examined. A complaint against a Minister or a
Former Minister of the Union Government is to be put up
before the Director of the CBI. The complaints which are
registered for verification, with the approval of the
competent authority, would only be subjected to secret
verification. Clause (9.1) of Chapter 9 contemplates that
85
when a complaint is received, inter alia, after
verification and which may after verification indicates
serious misconduct on the part of the public servant but
is not adequate to justify registration of a regular case,
under the provisions of Section 154 of the Cr.PC, a
preliminary inquiry may be registered after obtaining
approval of the competent authority. Clause (9.1) also, no
doubt, deals with cases entrusted by this Court and the High
Courts. The Manual further contemplates that the
preliminary inquiry will result either in registration of
regular cases or departmental action inter alia.
81. The Constitution Bench in Lalita Kumari(supra), had
before it, the CBI Crime Manual. It also considered the
decision of this Court in P. Sirajuddin (supra) which
declared the necessity for preliminary inquiry in offences
relating to corruption. Therefore, the petitioners may not
be justified in approaching this Court seeking the relief
of registration of an FIR and investigation on the same as
such. This is for the reason that one of the exceptions where
86
immediate registration of FIR may not be resorted to, would
be a case pointing fingers at a public figure and raising
the allegation of corruption. This Court also has permitted
preliminary inquiry when there is delay, laches in
initiating criminal prosecution, for example, over three
months. A preliminary inquiry, it is to be noticed in
paragraph 120.7, is to be completed within seven days.
82. The petitioners have not sought the relief of a
preliminary inquiry being conducted. Even assuming that a
smaller relief than one sought could be granted, there is
yet another seemingly insuperable obstacle.
83. In the year 2018, the Prevention of Corruption
(Amendment) Act, 2018 (hereinafter referred to as ‘2018
Act’ for short) was brought into force on 26.07.2018.
Thereunder, Section 17A, a new Section was inserted, which
reads as follows:
“17A. (1) No police officer shall
conduct any enquiry or inquiry or
investigation into any offence alleged to
87
have been committed by a public servant under
this Act, where the alleged offence is
relatable to any recommendation made or
decision taken by such public servant in
discharge of his official functions or
duties, without the previous approval— (a )
in the case of a person who is or was employed,
at the time when the offence was alleged to
have been committed, in connection with the
affairs of the Union, of that Government; (b)
in the case of a person who is or was employed,
at the time when the offence was alleged to
have been committed, in connection with the
affairs of a State, of that Government; (c)
in the case of any other person, of the
authority competent to remove him from his
office, at the time when the offence was
alleged to have been committed: Provided that
no such approval shall be necessary for cases
involving arrest of a person on the spot on
the charge of accepting or attempting to
accept any undue advantage for himself or for
any other person: Provided further that the
concerned authority shall convey its
decision under this section within a period
of three months, which may, for reasons to be
recorded in writing by such authority, be
extended by a further period of one month.‟‟.
(Emphasis supplied)
84. In terms of Section 17A, no Police Officer is permitted
to conduct any enquiry or inquiry or conduct investigation
into any offence done by a public servant where the offence
88
alleged is relatable to any recommendation made or decision
taken by the public servant in discharge of his public
functions without previous approval, inter alia, of the
authority competent to remove the public servant from his
Office at the time when the offence was alleged to have been
committed. In respect of the public servant, who is involved
in this case, it is clause (c), which is applicable. Unless,
therefore, there is previous approval, there could be
neither inquiry or enquiry or investigation. It is in this
context apposite to notice that the complaint, which has
been filed by the petitioners in Writ Petition (Criminal)
No. 298 of 2018, moved before the first respondent-CBI, is
done after Section 17A was inserted. The complaint is dated
04.10.2018. Paragraph 5 sets out the relief which is sought
in the complaint which is to register an FIR under various
provisions. Paragraphs 6 and 7 of the complaint are relevant
in the context of Section 17A, which reads as follows:
“6. We are also aware that recently,
Section 17(A) of the act has been brought in
by way of an amendment to introduce the
89
requirement of prior permission of the
government for investigation or inquiry
under the Prevention of Corruption Act.
7. We are also aware that this will
place you in the peculiar situation, of
having to ask the accused himself, for
permission to investigate a case against him.
We realise that your hands are tied in this
matter, but we request you to at least take
the first step, of seeking permission of the
government under Section 17(A) of the
Prevention of Corruption Act for
investigating this offence and under which,
“the concerned authority shall convey its
decision under this section within a period
of three months, which may, for reasons to be
recorded in writing by such authority, be
extended by a further period of one month”.”
85. Therefore, petitioners have filed the complaint fully
knowing that Section 17A constituted a bar to any inquiry
or enquiry or investigation unless there was previous
approval. In fact, a request is made to at least take the
first step of seeking permission under Section 17A of the
2018 Act. Writ Petition (Criminal) No. 298 of 2018 was filed
on 24.10.2018 and the complaint is based on
non-registration of the FIR. There is no challenge to
Section 17A. Under the law, as it stood, both on the date
90
of filing the petition and even as of today, Section 17A
continues to be on the Statute Book and it constitutes a
bar to any inquiry or enquiry or investigation. The
petitioners themselves, in the complaint, request to seek
approval in terms of Section 17A but when it comes to the
relief sought in the Writ Petition, there was no relief
claimed in this behalf.
86. 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 so
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) No.
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 judgment sought to be
reviewed, would not stand in the way of the first respondent
91
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.
87. Subject as hereinbefore stated, in regard to the other
Petitions and Applications, I agree with the proposed Order
of Brother Justice Sanjay Kishan Kaul.
.............J.
(K.M. JOSEPH)
New Delhi,
November 14, 2019.
