YASHWANT SINHA & ORS. versus CENTRAL BUREAU OF INVESTIGATION THROUGH ITS DIRECTOR & ANR.

[2019] 17 S.C.R. 917

YASHWANT SINHA & ORS.

CENTRAL BUREAU OF INVESTIGATIONTHROUGH ITS DIRECTOR & ANR.

(Review Petition (Crl.) No. 46 of 2019)

(Writ Petition (Crl.) No.298 of 2018)

NOVEMBER, 14, 2019

[RANJAN GOGOI, CJI, SANJAY KISHAN KAULAND K. M. JOSEPH, JJ.]

Rafale Fighter Jets Case – Judgment – Correction ofJudgment – The Union of India filed an application seekingcorrection of what they claim to be an error, in two sentences inPara 25 of the judgment delivered on 14.12.2018 – The error statedto be on account of misinterpretation of some sentences in notehanded over to Supreme Court in sealed cover – Held (Per SanjayKishan Kaul, J. for himself and Ranjan Gogoi, CJI.): The prayeris accepted and the sentence in para 25 to the following effect –“The pricing details have, however, been shared with theComptroller and Auditor General (CAG) and the report of the CAGhas been examined by the Public Accounts Committee (PAC). Onlya redacted portion of the report was placed before the Parliamentand in public domain” should be replaced by: “ The Governmenthas already shared the pricing details with the CAG. The report ofthe CAG is examined by the PAC in the usual course of business.Only redacted version of the report is placed before theParliament and in Public domain”.

Rafale Fighter Jets Case – Judgment – Review of – It wascontended by the petitioner that in writ petition prayer was madefor registration of an FIR and investigation by the CBI, which wasnot dealt with and the contract was reviewed prematurely by theJudiciary without the benefit of investigation and inquiry into thedisputed questions of facts – Held (Per Sanjay Kishan Kaul, J.for himself and Ranjan Gogoi, CJI.) : Not fair submission forthe reason that all counsels, including counsel representing thepetitioners in this matter addressed elaborate submissions on all

Athe aspects – There was prayer for registration of F.I.R andfurther investigation but then once all the aspects were examinedon merits, the Supreme Court did not consider it appropriate to issueany directions.

Rafale Fighter Jets Case – Judgment – Review of – PricingBof the Jets – Held (Per Sanjay Kishan Kaul, J. for himself andRanjan Gogoi, CJI.) : It is not the function of the Supreme Courtto determine the prices nor for that matter can such aspects bedealt with on mere suspicion of persons who decide to approachthe Court – The internal mechanism of such pricing would takeCcare of the situation – The pricing of the basic aircraft had to becompared which was competitively marginally lower – As to whatshould be loaded on the aircraft or not and what further pricingshould be added has to be left to the best judgment of thecompetent authorities.DRafale Fighter Jets Case – Judgment – Review of – ContemptPetition – The contempt petition emanates from an allegationagainst the then President of the Indian National Congress onaccount of utterances made in the presence of several mediapersons that the Supreme Court was in consonance with what hisEdiscourse was, i.e. that the prime Minister of India stole money fromthe Air Force and give it to particular business group and PrimeMinister had indulged in corruption – Held (Sanjay Kishan Kaul,J. for himself and Ranjan Gogoi, CJI.): The matter wascompounded by filing 20 page affidavit with large number ofdocuments annexed rather than simply accepting the mistake andFgiving an unconditional apology – However, subsequent affidavitwas filed on 08.05.2019 with better wisdom – In view of thesubsequent affidavit, better sense having prevailed – The ContemptProceedings are closed with word of caution for the contemnorto be more careful in future.GRafale Fighter Jets Case – Judgment – Review of – Thecomplaint is that the Supreme Court totally overlooked the reliefsought in Writ Petition (Criminal) No. 298 of 2018 – In the saidwrit petition, the petitioner had sought registration of an F.I.R. andinvestigation of the offences disclosed – The petitioners in the saidHcase, premise their case on the judgment of the Supreme Court in

Lalita Kumari v. Government of Uttar Pradesh and others – It iscontended that error is apparent in not even considering the impactof the Constitution Bench and requires to be redressed through theReview Petition – Held (Per K.M. Joseph, J.(concurring)) : Thefour writ petitions were heard together, the Court had proceededto focus on the merits of the matter itself undoubtedly from the standpoint of the limited judicial review which it could undertake in amatter of the nature in question – On basis of the said exercise,the Court has concluded that there were no materials for the Courtto interfere – But this is far cry from holding that it will not followthe mandate of the Constitution bench of the Supreme Court inregard to the steps to be undertaken by the officer on receipt of acomplaint purporting to make out the commission of cognizableoffence – The Supreme Court may declare that it was non-suitingthe petitioners seeking judicial review, having regard to the absenceof materials which would have justified holding the award of thecontract in question vulnerable – It would not mean it is eitherprecluded or that it was not duty-bound to still direct that the lawlaid down by the Constitution bench in Lalita Kumari be conformedto – Also, the Constitution Bench in Lalita Kumari had consideredthe necessity for preliminary inquiry in offences relating tocorruption – Therefore, the petitioners may not be justified inapproaching the Supreme Court seeking the relief of registrationof an F.I.R. and investigation on the same as such – This for thereason as there were allegations of corruption and the petitionerhad not sought relief of preliminary inquiry – Furthermore, thepetitioners had filed complaint fully knowing that s. 17A of thePrevention of Corruption (Amendment) Act, 2018 constituted barto any inquiry or enquiry or investigation unless there was previousapproval – The petitioners had requested approval u/s. 17A in thecomplaint but the same relief was not sought in the writ petition –Even proceeding on the basis that on petitioners’ complaint, an FIRmust be registered as it purports to disclose cognizable offencesand the Court must so direct, it will be futile exercise havingregard to s.17A – In the instant case, the petitioners cannot succeedin the Review petition – However, the judgment sought to bereviewed, would not stand in the way of the first respondent-CBIfrom taking action on the complaint in accordance with law andsubject to obtaining previous approval u/s. 17A of the Act, 2018.

AConstitution of India – Art.137 – Review – Jurisdiction in –Held (Per K.M. Joseph, J. (concurring)): The principle well-settledin regard to jurisdiction in review, is that review is not an appealin disguise – The applicant, in review, is, on most occasions, toldoff the gates, by pointing out that his remedy lay in pursuing anappeal – In the case of decision rendered by the Supreme Court,Bit is to be noticed that the underpinning based on availability ofan appeal, is not available as the Supreme Court is the final Courtand no appeal lies – While review petition has not beenunderstood as an appeal in disguise and mere erroneous decisionmay not justify review, decision which betrays an error whichCis apparent, does entitle the Court to exercise its jurisdiction u/Art.137 of the Constitution.Constitution of India – Art.137 – Code of Civil Procedure,1908 – Or. XLVII, r.1 – Review – Maintainability of – Held (PerK.M. Joseph, J.(concurring)): Review Petition is maintainableDif the impugned judgment of the Supreme Court discloses an errorapparent on the face of the record – For granting review u/Art.137 of the Constitution r/w. Or. XLVII, r.1 of the C.P.C., the errorcan be an error of fact or of law – Error has been described as apalpable error or glaring omission – As to what constitutes anEerror apparent on the face of record, is matter to be found incontext of the facts of each case.

Police – Police officer – Power of – Power of police officerwider and different from that of writ Court – Held (Per K.M.Joseph, J.(concurring)): In the instant case, the CBI is the premierFinvestigation agency of the country – It is equipped to undertakeall forms of investigations, be it technical or otherwise – TheSupreme Court held in the writ petitions filed before this ReviewPetitions, that it is neither appropriate nor with the Court’sexperience to step into what is technically feasible or not – No suchlimitation applies to an investigator of cognizable offence – WhatGis important is that it is the duty of the investigating officer to collectall material, be it technical or otherwise and thereafter, submit anappropriate report to the Court concerned, be it final report orchallan depending upon the materials unearthed – The Court hadrelied on absence of the substantial materials – However, this isHnot the restriction on the Investigating Officer.

Disposing of the matters, the Court

HELD: Per Sanjay Kishan Kaul, J. [for himself and RanjanGogoi, CJI]:

1. The sentence in para 25 of the Judgment to thefollowing effect - “The pricing details have, however, been sharedwith the Comptroller and Auditor General (“CAG”), and thereport of the CAG has been examined by the Public AccountsCommittee (“PAC”). Only redacted portion of the report wasplaced before the Parliament and is in public domain” should bereplaced by : “The Government has already shared the pricingdetails with the CAG. The report of the CAG is examined bythe PAC in the usual course of business. Only redacted versionof the report is placed before the Parliament and in publicdomain.” [Para 6] [935-E]

2. The other aspect raised specifically in Review PetitionNo.46/2019 is that the prayer made by the petitioner was forregistration of an F.I.R. and investigation by the C.B.I., whichhas not been dealt with and the contract has been reviewedprematurely by the Judiciary without the benefit of investigationand inquiry into the disputed questions of facts. [Para 15] [937-C]

3. This Court does not consider this to be fairsubmission for the reason that all counsels, including counselrepresenting the petitioners in this matter addressed elaboratesubmissions on all the aforesaid aspects. No doubt that therewas prayer made for registration of F.I.R. and furtherinvestigation but then once this Court had examined all theaspects on merits this Court did not consider it appropriate toissue any directions, as prayed for by the petitioners whichautomatically covered the direction for registration of FIR,prayed for. [Para 16] [937-D-E]

4. Insofar as the aspect of pricing is concerned, the Courtsatisfied itself with the material made available. It is not thefunction of this Court to determine the prices nor for that mattercan such aspects be dealt with on mere suspicion of persons whodecide to approach the Court. The internal mechanism of such

Apricing would take care of the situation. On the perusal ofdocuments this Court had found that one cannot compare applesand oranges. Thus, the pricing of the basic aircraft had to becompared which was competitively marginally lower. As to whatshould be loaded on the aircraft or not and what further pricingshould be added has to be left to the best judgment of theBcompetent authorities. [Para 17] [937-F-G]

5. It was the petitioners’ decision to have invoked thejurisdiction of this Court under Article 32 of the Constitution ofIndia fully conscious of the limitation of the contours of thescrutiny and not to take recourse to other remedies as may beCavailable. The petitioners cannot be permitted to state thathaving so taken recourse to this remedy, they want anadjudication process which is really different from what isenvisaged under the provisions invoked by them. [Para 19] [938-A-B]D

6. Insofar as the decision making process is concerned,on the basis of certain documents obtained, the petitionerssought to contend that there was contradictory material. ThisCourt, however, found that there were undoubtedly opinionsexpressed in the course of the decision making process, whichEmay be different from the decision taken, but then any decisionmaking process envisages debates and expert opinion and thefinal call is with the competent authority, which so exercised it.In this context reference was made to (a) Acceptance ofNecessity (‘AON’) granted by the Defence Acquisition Council(‘DAC’) not being available prior to the contract which wouldFhave determined the necessity and quantity of aircrafts; (b)absence of Sovereign Guarantee granted by France despiterequirement of the Defence Procurement Procedure (‘DPP’); (c)the oversight of objections of three expert members of the IndianNegotiating Team (‘INT’) regarding certain increase in theGbenchmark price; and (d) the induction of Reliance AerostructureLimited (‘RAL’) as an offset partner. [Para 20] [938-C-E]

7. It is for the aforesaid reasons also that this Court findsthat there was no ground made out for initiating prosecutionunder Section 340 Cr.P.C. This Court is thus, of the view thatHthe review petitions are without any merit and are accordingly

dismissed, once again, re-emphasising that our original decisionwas based within the contours of Article 32 of the Constitutionof India. [Paras 24-25] [939-C-D]

8. The matter of Contempt petition was compounded byfiling 20 page affidavit with large number of documentsannexed rather than simply accepting the mistake and giving anunconditional apology. Better wisdom dawned on the counsel onlyduring the course of arguments thereafter when subsequentaffidavit dated 8.5.2019 was filed. This Court does believe thatpersons holding such important positions in the politicalspectrum must be more careful. As to what should be hiscampaign line is for political person to consider. However, thisCourt or for that matter no court should be dragged into thispolitical discourse valid or invalid, while attributing aspects tothe Court which had never been held by the Court. Certainlycontemnor, the then president of the Indian National Congress,needs to be more careful in future. [Para 32] [940-H; 941-A-B]

9. However, in view of the subsequent affidavit, bettersense having prevailed, this Court would not like to continuethese proceedings further and, thus, close the contemptproceedings with word of caution for the contemnor to be morecareful in future. [Para 33] [941-C]

Per K. M. Joseph, J.(concurring):

CONTOURS OF REVIEW JURISDICTION

10. On conspectus of the various Supreme Court abovedecisions, the following conclusions appeared to be inevitableand they also provide the premise for review:

Justice above all. While review petition has not beenunderstood as an appeal in disguise and mere erroneousdecision may not justify review, decision which betrays anerror which is apparent, does entitle the court to exercise itsjurisdiction under Article 137 of the Constitution. The foundingfathers 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 thecourts are manned by men, who are prone to err, there must be

Aa safety valve to check the possibility of grave injustice beingreached to litigant, consequent upon an error, which is palpableor as result of relevant material despite due diligence by alitigant not being made available or other sufficient reason. Theother value which is ever-present in the mind of the law giver,Bis, there must be finality to litigation. Be it judgments of finalcourt, if it becomes vulnerable to indiscriminate reopening,unless strong ground exists, which itself is based on manifesterror disclosed by the judgment or the other two groundsmentioned in Order XLVII of the CPC in civil matter, it wouldspawn considerable inequity. [Para 40] [962-F-G; 963-A-B]C

11. It must be noticed that the principle well-settled inregard to jurisdiction in review, is that review is not an appealin disguise. The applicant, in review, is, on most occasions,told off the gates, by pointing out that his remedy lay in pursuingan appeal. In the case of decision rendered by this Court, it isDto be noticed that the underpinning based on availability of anappeal, is not available as this Court is the final Court and noappeal lies. [Para 41] [963-C]

12. It is no doubt true that the Supreme Court Rules, 2013,certain powers are conferred on the Registrar as also on theEJudge holding Court in Chambers and appeals, indeed, areprovided in respect of certain orders passed by the Registrar.[Para 42] [963-D]

13. The fact that no appeal lies from the judgment of thisCourt may not, however, result in the jurisdiction of this CourtFunder Article 137 of the Constitution being enlarged. However,when the Court is invited to exercise its power of review, thisaspect may also be borne in mind, viz., that unlike the othercourts from which an appeal may be provided either under theConstitution or other laws, or by special leave under Article 136Gof the Constitution, no appeal lies from the judgment of thisCourt, and it is in that sense, the final Court. The underlyingassumption for the principle that review is not an appeal indisguise, being that the decision isappealable, is really notavailable in regard to decision rendered by this Court, is allHthat is being pointed out. [Para 43] [963-E-F]

14. review petition is maintainable if the impugnedjudgment discloses an error apparent on the face of the record.Unlike proceeding in Certiorari jurisdiction, wherein the errormust not only be apparent on the face of the record, it must bean error of law, which must be apparent on the face of the record,for granting review under Article 137 of the Constitution readwith Order XLVII Rule 1 of the CPC, the error can be an errorof fact or of law. No doubt, it must be apparent on the face ofrecord. Such an error has been described as palpable error orglaring omission. As to what constitutes an error apparent onthe face of record, is matter to be found in context of the factsof each case. [Para 44] [963-G-H; 964-A-B]15. The view of this Court, in the decision in Girdhari LalGuptaas also in Deo Narain Singh, has been noticed to be thatif the relevant law is ignored or an inapplicable law forms thefoundation for the judgement, it would provide ground forreview. If court is oblivious to the relevant statutoryprovisions, the judgment would, in fact, be per incuriam. Nodoubt, the concept of per incuriam is apposite in the context ofits value as the precedent but as between the parties, certainlyit would be open to urge that judgment rendered, in ignoranceof the applicable law, must be reviewed. The judgment, in sucha case, becomes open to review as it would betray clear errorin the decision. [Para 45] [964-G; 965-A-B]

16. As regards fresh material forming basis for review, itmust be of such nature that it is relevant and it undermines theverdict. This is apart from the requirement that it could not beproduced despite due diligence. [Para 46] [965-B-C]

17. In this case, the short point, which this Court is calledupon to consider, is the effect of the impugned judgment notdealing with binding decision rendered by Constitution Benchwhich was relied upon by the petitioners in Writ Petition(Criminal) No. 298 of 2018 and rendered in Lalita Kumari. [Para48] [965-F-G]

18. To test the hypothesis that on the facts this Court waswrong and manifestly so in declining in not following the dictaof the Constitution Bench in Lalita Kumari, reverse processof reasoning can be employed to appreciate the matter further.

ACan it be said that refusing to follow Constitution Bench, layingdown the response of the Officers to complaint alleging thecommission of cognizable offence, has not been observed inits breach? If the review petition, in other words, is rejected, insubstance this Court would be upholding its judgment whichwhen placed side-by-side with the pronouncement of theBConstitution Bench in Lalita Kumari, the two judgments cannotbe squared. It must co-exist despite the patent departure, theimpugned judgment manifests from the law laid down by theConstitution Bench. But that being impossible, the ConstitutionBench must prevail and the impugned judgment standCoverwhelmed to the extent it is inconsistent. It may be true thatin view of the fact that four writ petitions were heard together,this Court has proceeded to focus on the merits of the mattersitself undoubtedly from the standpoint of the limited judicialreview which it could undertake in matter of the nature inquestion. On the basis of the said exercise, the Court hasDconcluded that there were no materials for the Court to interfere.But this is far cry from holding that it will not follow themandate of the Constitution Bench of this Court in regard tothe steps to be undertaken by the Officer on receipt of acomplaint purporting to make out the commission of cognizableEoffence. This Court may declare that it was non-suiting thepetitioners seeking judicial review, having regard to the absenceof materials which would have justified holding the award of thecontract in question vulnerable. It would not mean that it is eitherprecluded or that it was not duty- bound to still direct that thelaw laid down by the Constitution Bench in Lalita Kumari beFconformed to. [Para 61] [970-G-H; 971-A-D]

19. If the complaint of the petitioner does make out thecommission of the cognizable offence and FIR is to be registeredand matter investigated, it will be no answer to suggest that thisCourt, has approved of the matter in judicial review proceedingsGunder Article 32 of the Constitution and making it clear thatentire exercise must be viewed from the prism of the limitedjudicial review the Court undertakes in such proceedings andthis Court would end up paying less than lip service to the lawlaid down by the Constitution Bench in Lalita Kumari. [Para 62]H[971-E-F]20. As far as the judicial review of the award of the contractis concerned, apart from the fact that review does not permitreappreciation of the materials, there is the aspect of thepetitioner seeking judicial review approaching the court late inthe day. There is also the aspect relating to the court’sjurisdiction not extending to permit it to sit in judgment overthe wisdom of the Government of the day, particularly in mattersrelating to purchase of the goods involved in this case.Therefore, in regard to review, sought in relation to the findingsrelating to the judicial review, they cannot be found to besuffering from palpable errors. [Para 63] [971-G-H]

21. As noticed earlier, it is one thing to say that with thelimited judicial review, available to the Court, it did not find meritin the case of the petitioners regarding failure to follow the DPP,presence of over-pricing, violation of Offset Guidelines to favoura party, and another thing to direct action on complaint in termsof the law laid down by this Court. It is obvious that this Courtwas not satisfied with the material which was placed to justify adecision in favour of the petitioners. It is also apparent that theCourt has reminded itself of the fact that it was neitherappropriate nor within the experience of the Court to step intothe arena. It is equally indisputable that the entire findings areto be viewed from the standpoint of the nature of the jurisdictionit exercised. There are no such restrictions and limitations onan Officer investigating case under the law. Present case,making out the commission of cognizable offence, starting withthe lodging of the FIR after, no doubt, making preliminaryinquiry where it is necessary, the fullest of amplitude of powersunder the law, no doubt, are available to the Officer. Thediscovery of facts by Officer carrying out an investigation, iscompletely different from findings of facts given in judicial reviewby Court. The entire proceedings are completely different.[Para 67] [972-H; 973-A-D]

22. From the standpoint of the jurisdiction in judicialreview proceedings and under Article 32 of the Constitution, asalso absence of any substantial material to show to be case ofcommercial favouritism, it may be true that the findings otherthan which has been referred to may not disclose palpableerror. This Court’s lack of experience of what is technically

[2019] 17 S.C.R.

Afeasible, as noted by the Court, has weighed with it. [Para 70][975-B]POWERS OF POLICE OFFICER WIDER ANDDIFFERENT FROM THAT OF WRIT COURT

23. The Police Officer is endowed with wide powers.BNothing that constricted or limited this Court in the impugnedjudgment, applies to an Officer who has undertaken aninvestigation into the commission of cognizable offence. In fact,in this case, the first respondent-CBI is the premiereinvestigation agency of the country. It is equipped to undertakeCall forms of investigations, be it technical or otherwise. Thefactors which concerned this Court can be recapitulated to bringout the true role of an Investigator. This Court held, it is neitherappropriate nor within the Court’s experience to step into whatis technical feasible or not. No such limitation applies to anInvestigator of cognizable offence. What is important is that itDis the duty of the Investigating Officer to collect all material, beit technical or otherwise, and thereafter, submit an appropriatereport to the court concerned, be it final report or challandepending upon the materials unearthed. This Court relied onabsence of substantial material. This is not restriction on theEInvestigating Officer. Far from it, the very purpose of conductingan investigation on complaint of cognizable offence beingcommitted, is to find material. There can be no dispute that thefirst respondent is the premiere investigating agency in thecountry which assumedly employs state of the art techniques ofinvestigation. Professionalism of the highest quality, whichFembraces within it, uncompromising independence andneutrality, is expected of it. Again, the restriction which underliesthe impugned judgment is the limited scope of judicial reviewand also the writ jurisdiction under Article 32 of the Constitution.It is clear as mountain stream that both these considerationsGare totally irrelevant for an Officer who has before him acomplaint making out the commission of cognizable offence.[Paras 71 and 73] [975-C; 976-C-G]

24. In paragraph 117 of Lalita Kumar, this Court referredto the decision in P. Sirajuddin, Etc.v. State of Madras, Etc.andHtook the view that in the context of offences related to corruption

in the said decision, the Court has expressed need for apreliminary inquiry before proceeding against public servants.[Para 77] [980-C]

25. It is thereafter that under the caption “Exceptions”,the Constitution Bench has proceeded to deal with offencesrelating to corruption as already noted and contained in paragraph117 of Lalita Kumari, which has already been extracted. Chapter8 of the CBI Crime Manual deals with complaints and sourceof information. Chapter 9 deals with preliminary enquiries.Clause (8.6) of Chapter 8 provides for the categories ofcomplaints which are to be considered fit for verification. Itprovides, inter alia, complaints pertaining to subject matterswhich fall within the purview of the CBI, either received fromofficial channels or from well-established and recognizedorganizations or from individuals who are known and who canbe traced and examined.Undoubtedly, petitioners are known andcan be traced and examined. complaint against Minister ora Former Minister of the Union Government is to be put upbefore the Director of the CBI. The complaints which areregistered for verification, with the approval of the competentauthority, would only be subjected to secret verification. Clause(9.1) of Chapter 9 contemplates that when complaint isreceived, inter alia, after verification and which may afterverification indicates serious misconduct on the part of the publicservant but is not adequate to justify registration of regularcase, under the provisions of Section 154 of the Cr.PC, apreliminary inquiry may be registered after obtaining approvalof the competent authority. Clause (9.1) also, no doubt, dealswith cases entrusted by this Court and the High Courts. TheManual further contemplates that the preliminary inquiry willresult either in registration of regular cases or departmentalaction inter alia. [Para 80] [982-B-F]

26. The Constitution Bench in Lalita Kumari, had beforeit, the CBI Crime Manual. It also considered the decision of thisCourt in P. Sirajuddinwhich declared the necessity forpreliminary inquiry in offences relating to corruption. Therefore,the petitioners may not be justified in approaching this Courtseeking the relief of registration of an FIR and investigation onthe same as such. This is for the reason that one of the

ABC

DEF

Aexceptions where immediate registration of FIR may not beresorted to, would be case pointing fingers at public figureand raising the allegation of corruption. This Court also haspermitted preliminary inquiry when there is delay, laches ininitiating criminal prosecution, for example, over three months.A preliminary inquiry, it is to be noticed in paragraph 120.7, isBto be completed within seven days. [Para 81] [982-G-H; 983-A]

27. The petitioners have not sought the relief of apreliminary inquiry being conducted. Even assuming that asmaller relief than one sought could be granted, there is yetanother seemingly insuperable obstacle. [Para 82] [983-A-B]C

28. In terms of Section 17A of the Prevention of theCorruption (Amendment) Act, 2018, no Police Officer ispermitted to conduct any enquiry or inquiry or conductinvestigation into any offence done by public servant wherethe offence alleged is relatable to any recommendation made orDdecision taken by the public servant in discharge of his publicfunctions without previous approval,inter alia, of the authoritycompetent to remove the public servant from his Office at thetime when the offence was alleged to have been committed. Inrespect of the public servant, who is involved in this case, it isclause (c), which is applicable. Unless, therefore, there isEprevious approval, there could be neither inquiry or enquiry orinvestigation. [Para 84] [983-G-H; 984-A-B]29. Therefore, petitioners have filed the complaint fullyknowing that Section 17A constituted bar to any inquiry orenquiry or investigation unless there was previous approval. InFfact, request is made to at least take the first step of seekingpermission under Section 17A of the 2018 Act. Writ Petition(Criminal) No. 298 of 2018 was filed on 24.10.2018 and thecomplaint is based on non-registration of the FIR. There is nochallenge to Section 17A. Under the law, as it stood, both onGthe date of filing the petition and even as of today, Section 17Acontinues to be on the Statute Book and it constitutes bar toany inquiry or enquiry or investigation. The petitionersthemselves, in the complaint, request to seek approval in termsof Section 17A but when it comes to the relief sought in the WritPetition, there was no relief claimed in this behalf. [Para 85] [984-HF-H; 985-A]

30. Even proceeding on the basis that on petitionerscomplaint, an FIR must be registered as it purports to disclosecognizable offences and the Court must so direct, will it not bea futile exercise having regard to Section 17A. Therefore,though otherwise the petitioners in Writ Petition (Criminal) No.298 of 2018 may have made out case, having regard to thelaw actually laid down in Lalita Kumari, and more importantly,Section 17A of the Prevention of Corruption Act, in ReviewPetition, the petitioners cannot succeed. However, the judgmentthat is sought to be reviewed, would not stand in the way of thefirst respondent-CBI in Writ Petition (Criminal) No. 298 of 2018from taking action on Exhibit P1-complaint in accordance withlaw and subject to first respondent obtaining previous approvalunder Section 17A of the Prevention of Corruption Act. [Para86] [985-B-C]

Per K. M. Joseph, J.:

Lalita Kumari v. Government of Uttar Pradesh andothers (2014) 2 SCC 1 : [2013] 14 SCR 713 ; P.N.Eswara Iyer And Others v. Registrar, Supreme Courtof India (1980) 4 SCC 680 : [1980] 2 SCR 889 ;Haridas Das v. Usha Rani Banik (Smt.) and others(2006) 4 SCC 78 : [2006] 3 SCR 87 ; Jain StudiosLtd. Through Its President v. Shin Satellite Public Co.Ltd. (2006) 5 SCC 501 : [2006] 3 Suppl. SCR 409 ;Shin Satellite Public Co. Ltd. v. Jain Studios Ltd.(2006) 2 SCC 628 : [2006] 1 SCR 933 ; State of WestBengal and others v. Kamal Sengupta and another(2008) 8 SCC 612 : [2008] 10 SCR 4 ; Moran MarBasselios Catholicos and another v. Most Rev. MarPoulose Athanasius and others AIR 1954 SC 526 :[1955] SCR 520 ; Girdhari Lal Gupta v. D.N. Mehtaand another AIR 1971 SC 2162 : [1971] 3 SCR748 ; Sow Chandra Kante and another v. Sheikh Habib(1975) 1 SCC 674 ; Aribam Tuleshwar Sharmav. Aribam Pishak Sharma and others (1979) 4 SCC389 ; M/s. Northern India Caterers (India) Ltd. v. Lt.Governor of Delhi (1980) 2 SCC 167 : [1980] 2 SCR650 ; S. Nagaraj and others v. State of Karnataka and

another (1993) Supp 4 SCC 595 : [1993] 2 Suppl.SCR 1 ; Kamlesh Verma v. Mayawati and others (2013)8 SCC 320 : [2013] 11 SCR 25 ; Hari Vishnu Kamathv. Ahmad Ishaque and Others AIR 1955 SC 233 :[1955] SCR 1104 ; M.C. Abraham and another v. Stateof Maharashtra and others (2003) 2 SCC 649 :[2002] 5 Suppl. SCR 677 – relied on.

Mukesh v. State (NCT of Delhi) (2018) 8 SCC 149 :[2018] 7 SCR 898 ; Suthendraraja Alias SuthenthiraRaja Alias Santhan and others v. State Through DSP/CBI, SIT, Chennai (1999) 9 SCC 323 : [1999] 3 Suppl.CSCR 540 ; Deo Narain Singh v. Daddan Singh andothers (1986) Suppl. SCC 530 ; Lily Thomas andothers v. Union of India and others (2000) 6 SCC 224: [2000] 3 SCR 1081 ; Haryana State IndustrialDevelopment Corporation Limited. v. Mawasi andDothers (2012) 7 SCC 200 : [2012] 6 SCR 237 ; UshaBharti v. State of Uttar Pradesh and others (2014) 7SCC 663 : [2014] 4 SCR 1076 ; Vikram Singh AliasVicky Walia and another v. State of Punjab andanother (2017) 8 SCC 518 : [2017] 8 SCR 177 ; RupaAshok Hurra v. Ashok Hurra and another (2002) 4ESCC 388 : [2002] 2 SCR 1006 ; SatyanarayanLaxminarayan Hegde and others v. MallikarjunBhavanappa Tirumale AIR 1960 SC 137 : [1960] SCR890 ; Jacob Mathew v. State of Punjab and another(2005) 6 SCC 1 : [2005] 2 Suppl. SCR 307 ; P.FSirajuddin, Etc. v. State of Madras, Etc. (1970) 1 SCC595 : [1970] 3 SCR 931 – referred to.

Thadikulangara Pylee’s son Pathrose v. AyyazhiveettilLakshmi Amma’s son Kuttan and others AIR 1969 KER186 ; King-Emperor v. Nazir Ahmad Khwaja AIR 1945PC 18 – referred to.

Case Law Reference

YASHWANT SINHA v. CENTRAL BUREAU OFINVESTIGATION THR. ITS DIR.

CRIMINAL ORIGINAL JURISDICTION : Review Petition(Criminal) No. 46/2019 in Writ Petition (Criminal) No. 298/2018.

Petition to review the Judgment dated 14.12.2018 in Writ Petition(Criminal) No. 298 of 2018.

934SUPREME COURT REPORTS

[2019] 17 S.C.R.

AWith

MA 58/2019 in Writ Petition (Criminal) No. 225/2018

Review Petition (Criminal) No. 122/2019 in Writ Petition(Criminal) No. 297/2018

MA 403/2019 in Writ Petition (Criminal) No. 298/2018

BReview Petition (Civil) No. 719/2019 in Writ Petition (Civil) No.1205/2018Contempt Petition (Criminal) No. 3/2019 in Review Petition(Criminal) No. 46/2019 in Writ Petition (Criminal) No. 298/2019.

Vikas Singh, Mukul Rohatgi, Sr. Advs., Deepeika Kalia,CMs. Srishti Banerjee, Kapish Seth, Ms. Disha Chaudhary, Dr. AshutoshGarg, Ms. Ruchi Kohli, Dheeraj Kumar Singh, Devender KumarDhiryan, Mrinal Kumar, Alok Shukla, Ms. Suman, Arvind KumarSharma, Advs. for the Petitioners.

K.K. Venugopal, AG, Tushar Mehta, SG, R. Balasubramanian,Dr. Abhishek Manu Singhvi, Prashanto Chandra Sen, Sr. Advs.,DMs. Shraddha Deshmukh, Arvind Kumar Sharma, Sunil Fernandes,Avishkar Singhvi, Ms. Priyansha Indra Sharma, Varun K. Chopra, NikhilBhalla, Ms. Madhavi Khanna, Udayan Verma, Muhammad Ali Khan,Ranjit Kumar Sharma, Debasis Misra, Binay Kumar Jha, Ms. AlpanaSharma, Vishaal S. Jogdand, Advs. for the Respondents.

EPrashant Bhushan, Arun Shourie, Manohar Lal Sharma,Petitioner-in-persons.The judgment of the Court was delivered by

SANJAY KISHAN KAUL, J.

(I.A. No. 63168/2019 – EXEMPTION FROM FILING

O.T., I.A. No.71678/2019 – EXEMPTION FROM FILINGFO.T. and I.A. No. 66253/2019 – EXEMPTION FROMFILING O.T.)

1. Allowed subject to just exception.

-MA 58/2019 in W.P.(Crl.) No. 225/2018 (PILW) (I.A. No.182576/2018 – CORRECTION OF MISTAKES IN THEGJUDGMENT)

2. The Union of India has filed the present application seekingcorrection of what they claim to be an error, in two sentences in para25 of the judgment delivered by this Court on 14.12.2018. This error isstated to be on account of misinterpretation of some sentences in anote handed over to this Court in sealed cover.H

3. The Court had asked vide order dated 31.10.2018 to beapprised of the details/cost as also any advantage, which may haveaccrued on that account, in the procurement of the 36 Rafale fighterjets. The confidential note in the relevant portions stated as under:

“The Government has already shared the pricing details with theCAG. The report of the CAG is examined by the PAC. Onlya redacted version of the report is placed before the Parliamentand in public domain.”

4. It is the submission of the learned Attorney General that thefirst sentence referred to the sharing of the price details with the CAG.But the second sentence qua the PAC referred to the process and notwhat had already transpired. However, in the judgment this portionhad been understood as if it was already so done.

5. On hearing learned counsel for the parties, we are of the viewthat the confusion arose on account of two portions of the paragraphreferring to both what had been and what was proposed to be done.Regardless, what we noted was to complete the sequence of facts andwas not the rationale for our conclusion.

6. We are, thus, inclined to accept the prayer and the sentencein para 25 to the following effect - “The pricing details have, however,been shared with the Comptroller and Auditor General (hereinafterreferred to as “CAG”), and the report of the CAG has been examinedby the Public Accounts Committee (hereafter referred to as “PAC”).Only redacted portion of the report was placed before the Parliamentand is in public domain” should be replaced by what we have set outhereinafter:

“The Government has already shared the pricing details with theCAG. The report of the CAG is examined by the PAC in theusual course of business. Only redacted version of the reportis placed before the Parliament and in public domain.”

7. The prayer is accordingly allowed.

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

AMA 403/2019 in W.P.(Crl.) No. 298/2018 (PIL-W)(I.A. No. 29248/2019 – INITIATING CRIMINALPROCEEDINGS U/S 340 OF CRPC)

-R.P.(C) No. 719/2019 in W.P.(C) No. 1205/2018 (PILW)

B9. The review petitions were listed for hearing in Court andelaborate submissions were made by learned counsel for the parties.

10. We may note that insofar as the preliminary objection raisedby the Attorney General is concerned qua certain documents sought tobe produced by the petitioners, that aspect was dealt with by our orderCdated 10.4.2019 and the said preliminary objection was overruled.

11. We cannot lose sight of the fact that unless there is an errorapparent on the face of the record, these review applications are notrequired to be entertained. We may also note that the application underSection 340 of the Code of Criminal Procedure, 1973 partly emanatesDfrom an aspect which has been dealt with in our order passed todayon the application for correction of the order filed by the Union of India.

12. We have elaborately dealt with the pleas of the learnedcounsel for the parties in our order dated 14.12.2018 under the headsof ‘Decision Making Process’, ‘Pricing’ and ‘Offsets’. However,Ebefore proceeding to deal with these aspects we had set out thecontours of the scrutiny in matters of such nature. It is in that contextwe had opined that the extent of permissible judicial review in mattersof contract, procurement, etc. would vary with the subject matter ofthe contract and that there cannot be uniform standard of depth ofjudicial review which could be understood as an across the boardFprinciple to apply to all cases of award of work or procurement of goods/material. In fact, when two of these writ petitions were listed beforethe Court on 10.10.2018, we had embarked on limited enquiry despitethe fact that we were not satisfied with the adequacy of the avermentsand the material in the writ petitions. It was the object of the Court toGsatisfy itself with the correctness of the decision making process.

13. We cannot lose sight of the fact that we are dealing with acontract for aircrafts, which was pending before different Governmentsfor quite some time and the necessity for those aircrafts has never beenin dispute. We had, thus, concluded in para 34 noticing that other thanHthe aforesaid three aspects, that too to limited extent, this Court did

not consider it appropriate to embark on roving and fishing enquiry.We were, however, cautious to note that this was in the context of thewrit petition filed under Article 32 of the Constitution of India, thejurisdiction invoked.

14. In the course of the review petitions, it was canvased beforeus that reliance had been placed by the Government on patently falsedocuments. One of the aspects is the same as has been dealt with byour order passed today on the application for correction and, thus, doesnot call for any further discussion.

15. The other aspect sought to be raised specifically in ReviewPetition No.46/2019 is that the prayer made by the petitioner was forregistration of an F.I.R. and investigation by the C.B.I., which has notbeen dealt with and the contract has been reviewed prematurely bythe Judiciary without the benefit of investigation and inquiry into thedisputed questions of facts.

16. We do not consider this to be fair submission for the reasonthat all counsels, including counsel representing the petitioners in thismatter addressed elaborate submissions on all the aforesaid threeaspects. No doubt that there was prayer made for registration of F.I.R.and further investigation but then once we had examined the threeaspects on merits we did not consider it appropriate to issue anydirections, as prayed for by the petitioners which automatically coveredthe direction for registration of FIR, prayed for.

17. Insofar as the aspect of pricing is concerned, the Courtsatisfied itself with the material made available. It is not the functionof this Court to determine the prices nor for that matter can suchaspects be dealt with on mere suspicion of persons who decide toapproach the Court. The internal mechanism of such pricing would takecare of the situation. On the perusal of documents we had found thatone cannot compare apples and oranges. Thus, the pricing of the basicaircraft had to be compared which was competitively marginally lower.As to what should be loaded on the aircraft or not and what furtherpricing should be added has to be left to the best judgment of thecompetent authorities.18. We have noted aforesaid that plea was also raised aboutthe “non-existent CAG report” but then at the cost of repetition westate that this formed part of the order for correction we have passedaforesaid.

A19. It was the petitioners’ decision to have invoked the jurisdictionof this Court under Article 32 of the Constitution of India fully consciousof the limitation of the contours of the scrutiny and not to take recourseto other remedies as may be available. The petitioners cannot bepermitted to state that having so taken recourse to this remedy, theywant an adjudication process which is really different from what isBenvisaged under the provisions invoked by them.

20. Insofar as the decision making process is concerned, on thebasis of certain documents obtained, the petitioners sought to contendthat there was contradictory material. We, however, found that therewere undoubtedly opinions expressed in the course of the decisionCmaking process, which may be different from the decision taken, butthen any decision making process envisages debates and expert opinionand the final call is with the competent authority, which so exercisedit. In this context reference was made to (a) Acceptance of Necessity(‘AON’) granted by the Defence Acquisition Council (‘DAC’) notDbeing available prior to the contract which would have determined thenecessity and quantity of aircrafts; (b) absence of Sovereign Guaranteegranted by France despite requirement of the Defence ProcurementProcedure (‘DPP’); (c) the oversight of objections of three expertmembers of the Indian Negotiating Team (‘INT’) regarding certainincrease in the benchmark price; and (d) the induction of Reliance

EAerostructure Limited (‘RAL’) as an offset partner.

21. It does appear that the endeavour of the petitioners is toconstrue themselves as an appellate authority to determine each aspectof the contract and call upon the Court to do the same. We do notbelieve this to be the jurisdiction to be exercised. All aspects wereFconsidered by the competent authority and the different viewsexpressed considered and dealt with. It would well nigh becomeimpossible for different opinions to be set out in the record if eachopinion was to be construed as to be complied with before the contractwas entered into. It would defeat the very purpose of debate in theGdecision making process.

22. Insofar as the aforesaid pleas are concerned, it has also beencontended that some aspects were not available to the petitioner at thetime of the decision and had come to light subsequently by their“sourcing” information. We decline to, once again, embark on anHelaborate exercise of analyzing each clause, perusing what may be the

different opinions, then taking call whether final decision should orshould not have been taken in such technical matters.

23. An aspect also sought to be emphasized was that this Courthad misconstrued that all the Reliance Industries were of one groupsince the two brothers held two different groups and the earlierarrangement was with the Company of the other brother. That may beso, but in our observation this aspect was referred to in generic sensemore so as the decision of whom to engage as the offset partner wasa matter left to the suppliers and we do not think that much can bemade out of it.

24. It is for the aforesaid reasons also that we find that therewas no ground made out for initiating prosecution under Section 340Cr.P.C.

25. We are, thus, of the view that the review petitions are withoutany merit and are accordingly dismissed, once again, re-emphasisingthat our original decision was based within the contours of Article 32of the Constitution of India.

CONMT.PET.(Crl.) No. 3/2019 in R.P.(Crl.) No. 46/2019-in W.P.(Crl.) No. 298/2018 (PILW)

26. The contempt petition emanates from an allegation againstMr. Rahul Gandhi, the then President of the Indian National Congress,on account of utterances made in the presence of several media personson 10.4.2019 by him alleging that the Supreme Court had held that“Chowkidar (Mr. Narendra Modi, Prime Minister) is thief.” TheSupreme Court was also attributed to having held in consonance withwhat his discourse was, i.e., that the Prime Minister of India stole moneyfrom the Air Force and gave it to Mr. Anil Ambani and that the SupremeCourt had admitted that Mr. Modi had indulged in corruption. It wasstated that the Supreme Court had said that the Chowkidar is thief.

27. On notice being issued, reply affidavit dated 22.4.2019 wasfiled averring that the comments were made on the basis of bonafide belief and general understanding of the order even though thecontemnor had not himself had the opportunity to see, read or analysethe order at that stage. It was further averred that there had not beenthe slightest intention to insinuate anything regarding the Supreme Courtproceedings in any manner as the statements had been made by thecontemnor in “rhetorical flourish in the heat of the moment” and that

Ahis statement has been used and misused by his political opponents toproject that he had deliberately attributed the utterances to the SupremeCourt. In that context, it was averred that “nothing could be fartherfrom my mind. It is also clear that no Court would ever do that andhence the unfortunate references (for which I express regret) to theCourt order and to the political slogan in juxtaposition the same breathBin the heat of political campaigning ought not to be construed assuggesting that the Court had given any finding or conclusion on thatissue.”

28. The acceptance of such an affidavit was opposed by thepetitioner, BJP Member of Parliament, in the contempt petition. ItCwas stated that instead of expression of any remorse or apology, attemptwas made to justify the contemptuous statement as having been madein the heat of the moment.

29. On arguments having taken place in this context, and realizingthe seriousness of the matter and the inadequacy of the affidavit, learnedDcounsel for the contemnor took liberty to file an additional affidavit. Videorder dated 30.4.2019, this Court left the admissibility and acceptanceof such an affidavit to be considered on the subsequent date. Anadditional affidavit was filed on 8.5.2019 stating that the contemnor heldthis Court in the highest esteem and respect and never intended toEinterfere with the process of administration of justice. An unconditionalapology was tendered by him by stating that the attributions wereentirely unintentional, non-willful and inadvertent.

30. The matter was, once again, addressed by the learnedcounsel. We have given our thoughtful consideration to this issue.F

31. We must note that it is unfortunate that without verificationor even perusing as to what is the order passed, the contemnor deemedit appropriate to make statements as if this Court had given animprimatur to his allegations against the Prime Minister, which was farfrom the truth. This was not one sentence or one off observation butGa repeated statement in different manners conveying the same. Nodoubt the contemnor should have been far more careful.

32. The matter was compounded by filing 20 page affidavitwith large number of documents annexed rather than simplyaccepting the mistake and giving an unconditional apology. BetterHwisdom dawned on the counsel only during the course of arguments

thereafter when subsequent affidavit dated 8.5.2019 was filed. Wedo believe that persons holding such important positions in the politicalspectrum must be more careful. As to what should be his campaignline is for political person to consider. However, this Court or forthat matter no court should be dragged into this political discourse validor invalid, while attributing aspects to the Court which had never beenheld by the Court. Certainly Mr. Gandhi needs to be more careful infuture.

33. However, in view of the subsequent affidavit, better sensehaving prevailed, we would not like to continue these proceedings furtherand, thus, close the contempt proceedings with word of caution forthe 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 andI.A. No. 69009/2019 – STAY APPLICATION)

34. In view of the orders passed above, these applications donot survive for consideration and the same are disposed of. Any otherpending applications also stands disposed.

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 subjectto certain aspects considered by me, I would, by my separate opinion,give my reasons, which are as hereunder.

2. The common judgment in four Writ Petitions has generatedthree Review Petitions, Contempt Petition and Petition under Section340 of The Code of Criminal Procedure, 1973 (hereinafter referred toas ‘the Cr.PC’ for short) and an application seeking correction.

3. Review Petition (Criminal) No. 46 of 2019 is filed by thepetitioners in Writ Petition (Criminal) No. 298 of 2018. In the said WritPetition, relief sought, inter alia, was to register an FIR and toinvestigate the complaint which was made by the petitioners and tosubmit periodic status reports. The reliefs, as are made in the clauses‘a’ to ‘e’ of the prayer, read as follows:

A“a. Issue writ of mandamus or any other appropriate writdirecting Respondent No.1 to register an F.I.R. on thecomplaint that was made by the Petitioners on the 04[th]of October, 2018.

b. Issue writ of mandamus or any other appropriate writBdirecting the Respondent No.1 to investigate theoffences disclosed in the said complaint in time boundmanner and to submit periodic status reports to theCourt.

c. Issue writ of mandamus or any other appropriate writCdirecting the Respondent No.2 to cease and desist frominfluencing or intimidating in any way the officials thatwould investigate the offences disclosed in thecomplaint.

d. Issue writ of mandamus or any other appropriate writDdirecting the Respondent No.1 and Respondent No.2 tonot transfer the C.B.I. officials tasked with investigationof the offences mentioned in the complaint.

e. Issue writ of mandamus or any other appropriate writto ensure that the relevant records are not destroyed orEtampered with and are transferred to the CBI.”

4. Review Petition (Criminal) No. 122 of 2019 is filed by thepetitioner in Writ Petition (Criminal) No. 297 of 2018. The reliefs soughtin the said Writ Petition is as follows:“(a) to constitute Special Investigating Team (SIT) underFthe supervision of the Hon’ble Supreme Court withfollowing mandate:

i. to investigate the reasons for cancellation of earlierdeal for the purchase of 126 Rafale Fighter Jets.

Gii. As to how the figure of 36 Fighter Jets was arrivedat without the formalities associated with such ahighly sensitive defence procurement.

iii. to look into the alterations made by the RespondentNo.2 about the pricing of the Rafale Fighter Jets inHview of the earlier price of Rs.526 crores per Fighter

Jets alongwith requisite equipments, services andweapons and Rs.670 crores without associatedequipments, weapons, India specific enhancements,maintenance support and services; which resultedinto the escalation of price of each Fighter Jets fromRs.526 crores to more than 1500 crores;

iv. to investigate as to how novice company viz.Reliance Defence came in picture of this highlysensitive defence deal involving Rs.59,000 croreswithout having any kind of experience and expertisein making of Fighter Jets.

v. As to why name of ‘Hindustan Aeronautics Limited’was removed from the deal?

vi. As to whether the decision of purchase of only 36Rafale Fighter Jets instead of 126 was acompromise with the security of the Country or not?Dvii. Whether the Reliance Defence or it’s sister concernor any other individual or intermediary company has/have influenced the decision making of the purchaseof Rafale Fighter Jets at substantially higher pricesE

vii. Whether the Reliance Defence or it’s sister concernor any other individual or intermediary company has/have influenced the decision making of the purchaseof Rafale Fighter Jets at substantially higher pricesin the backdrop of the statement given by the thenPresident of French Republic and the investmentmade by the Reliance Entertainment into the JulieGayet’s Firm Rouge International was made with apurpose to influence the decision of removal of theHAL and induction of Reliance Defence as partnerof the Dassault;

(b) to terminate/cancel the inter-governmental agreementwith the Govt. of French Republic signed on 23-09-2016for the purchase of 36 Rafale Fighter Jets and to givedirection to the Respondent No.3 to lodge an FIR andto report the progress of investigation to this Hon’bleCourt;

(c) to restore the earlier deal for the purchase of 126Rafale Fighter Jets which was cancelled on 24.06.2015by the Govt. of India.

A(d) to bar the Dassault Reliance Aerospace Limited(DRAL) from handling/manufacturing the Rafale FighterJets;

(e) to direct the Respondent 1&2 to propose the PublicSector Company Hindustan Aeronautics Limited as theBIndian Offset Partner of Dassault;”

5. Review Petition (Criminal) No. 719 of 2019 has been filedagain by 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 directingCthe respondents to file the details of the agreemententered into between the Union of India and Governmentof France with regard to the purchase of 36 RafaleFighter Jets in sealed envelope.

b) Issue an appropriate writ or order or direction directingDthe respondents to furnish in sealed envelope theinformation with regard to the present cost of RafaleFighter Jets and also the earlier cost of the RafaleFighter Jets during the regime of UPA Government;

c) Issue an appropriate writ or order or direction directingEthe respondents to furnish any other information in sealedenvelope before the Hon’ble Supreme Court with regardto the controversy erupted in the purchase of RafaleFighter Jets;”

THE IMPUGNED JUDGMENT

F6. The three Writ Petitions, as also Writ Petition in which noReview is filed, came to be dismissed. This Court has referred to thereliefs which have been sought in the four Writ Petitions. This Courtreferred to the parameters of judicial review. The extent of permissiblejudicial review of contracts, procurement, etc., was found to vary withthe subject matter of the contract. It was further observed that theGscrutiny of the challenges before the Court, will have to be made keepingin mind the confines of national security, the subject of procurementbeing crucial to the nation’s sovereignty.

7. The findings of this Court in paragraph 15 throws light on thecontroversy as was understood by the Court. Paragraph 15 reads asHfollows:

“15. It is in the backdrop of the above facts and thesomewhat constricted power of judicial review that, wehave held, would be available in the present matter thatwe now proceed to scrutinise the controversy raised inthe writ petitions which raise three broad areas ofconcern, 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 thepetitioners. It is after the discussion, as aforesaid, it is to be noted thatthis Court finally concluded as follows:

“33. Once again, it is neither appropriate nor within theexperience of this Court to step into this arena of what istechnically feasible or not. The point remains that DPP 2013envisages that the vendor/OEM will choose its own IOPs.In thisprocess, the role of the Government is not envisaged and, thus,mere press interviews or suggestions cannot form the basis forjudicial review by this Court, especially when there is categoricaldenial of the statements made in the Press, by both the sides.We do not find any substantial material on record to show thatthis is case of commercial favouritism to any party by the IndianGovernment, as the option to choose IOP does not rest with theIndian Government.

Conclusion

34. In view of our findings on all the three aspects, and havingheard the matter in detail, we find no reason for any interventionby this Court on the sensitive issue of purchase of 36 defenceaircrafts by the Indian Government. Perception of individualscannot be the basis of 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 thestandpoint of the exercise of the jurisdiction under Article 32 ofthe Constitution of India which has been invoked in the presentgroup of cases.”

(Emphasis supplied)

A9. Upon consideration of the Review Petitions and Applications,by Order dated 26.02.2019, prayer for hearing in the open court wasallowed. We have heard learned counsel. We heard parties in ReviewPetition (Criminal) No. 46 of 2019, the learned Attorney General andlearned Solicitor General.B10. As far as petitioners in Review Petition (Criminal) No. 46 of2019 is concerned, the complaint appears to be that this Court has totallyoverlooked 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 PetitionC(Criminal) No. 298 of 2018. The substance of the Writ Petition is thatafter following the due process under the Defence ProcurementProcedure (DPP), to procure Advanced Fighter Aircrafts, and as perthe authority under the DPP, the IAF Service Headquarters, after awidely consultative process with multiple Institutions, prepared ServicesQualitative Requirements (SQR), specifying the number of aircraftsDrequired as 126. There was the recommendation of the Committee thatMake in India by Hindustan Aeronautics Limited (HAL), Public SectorEnterprise, under Transfer Technology Agreement, should be the modeof procurement. The Defence Acquisition Council granted themandatory Acceptance of Necessity (AON). Request for ProposalE(RFP) was, accordingly, issued. There were six vendors. In 2011, itwas announced that Dassault’s Rafale and Eurofighter GmbH Typhoonmet the IAF requirements. In March of 2014, Work Share Agreementwas 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 withFIndia for 126 aircrafts and HAL was to be the partner of Dassault.

12. It was the further case of the petitioners that new dealwas, however, inexplicably negotiated and announced by the PrimeMinister without following the due procedure. Number of aircrafts werereduced to 36. This involved complete violation of all laid down DefenceGProcurement Procedure. There are various allegations made againstthe deal to purchase 36 planes in place of 126. In particular, there isreference to Mr. Anil Ambani not owning any company engaged inmanufacture of products and services mentioned in the list of productsand services eligible for discharge of offset obligations. company wasHincorporated as Reliance Defence Limited on 28.03.2015, just twelve

days before the new deal was suddenly announced on 10.04.2015.There is also the case that DPP was bypassed for collateralconsiderations. In the complaint lodged with CBI, there is reference tothe Prevention of Corruption Act, 1988, as it stood prior to amendment.Their request is to register an FIR under the provisions which arementioned therein which fall under the Prevention of Corruption Act,1988 and to investigate the matter. Other reliefs are already referredto.

13. The petitioners in the said case, premise their case on thejudgment of this Court in Lalita Kumariv. Government of Uttar Pradeshand others1. It is their case that though reference was made to the reliefat the beginning of the judgment, thereafter, this Court focused only onthe merits of the matter in terms of the powers available to it underjudicial review. Reliefs sought in other Writ Petitions were focused upon.The only prayers of the petitioners in Writ Petition (Criminal) No. 298of 2018, as noticed, was direction to follow the command of LalitaKumari(supra) and to register an FIR as they have filed complaintwhich is produced along with Writ Petition and as no action was takenas mandated by the Constitution Bench of this Court, they haveapproached this Court. The error is apparent in not even consideringthe impact of the Constitution Bench and requires to be redressedthrough the Review Petition. The petitioners also, undoubtedly, point outthat there was suppression of facts by the respondents. This Court wassought to be misled. There is also case that the petitioners haveobtained documents which suggest that there were parallel negotiationsbeing undertaken by the Prime Minister’s Office (PMO) which wasstrenuously objected to by the Indian Negotiating Team (INT). Thestatement in the judgment that the pricing details have been shared withthe Comptroller and Auditor General of India (CAG) and the Reportof the CAG has been examined by the Public Accounts Committee(PAC) and that only redacted portion of the Report was placed beforethe Parliament, are pointed out to be patently false. It is primarily inregard to the same that an Application is filed purporting to be underSection 340 of the Cr.PC. There is an Application for Correction andthere is complaint of wholesale suppression of facts. Errors are alsoreferred to.

14. The stand of the Government of India is that the ReviewPetitions are meritless. This Court has elaborately considered the matter

Aand found that there was nothing wrong. It is the case of theGovernment that the impugned judgement addresses contentions of thepetitioners on compelling principles with regard to the scope of thejudicial inquiry in cases involving the security and defence of the nationand it lays down the correct law. It is pointed out that there is no graveerror apparent on the face of record. Reliance is placed on judgmentBof this Court in Mukeshv. State (NCT of Delhi)2. fishing inquiry isimpermissible. There was additional benefit to the country as resultof the deal which is sought to be questioned. Reliance is placed on thefindings of the CAG. It is contended that the CAG has conclusivelyheld that the basis of the benchmark by the INT was unrealistic.C15. The CAG has held that 36 Rafale aircrafts deal was 2.86per cent lower than the audit aligned price. Regarding the offsetguidelines being amended initially to benefit an industrial group, it isstoutly denied. The waiver of sovereignty/bank guarantee inGovernment to Government agreements is pointed out to be not unusual.DSupport is sought to be drawn from the Report of the CAG, inter alia,finding that the French Government was made equally responsible tofulfil its obligations. The production and delivery schedule are monitoredby high-level Committee with representatives of both Governments ofFrance and India.E16. As far as mandate of Lalita Kumari(supra), not beingfollowed, it is stated that disclosing prima facie that cognizableoffence is committed is mandatory, which is lacking in the present caseespecially once this Court has concluded that on decision-makingprocess, pricing and Indian Offset Partners, there was no reason tointervene. Once this Court has held that perception of individuals cannotFbe the basis for fishing and roving inquiry, no cognizable offence ismade out prima facie so as to order registration of an FIR. There isno concealment of facts or false presentation of facts.

CONTOURS OF REVIEW JURISDICTOIN

G17. Article 137 of the Constitution confers jurisdiction on theSupreme Court of India to exercise power of review. It reads as follows:“137. Review of judgments or orders by the Supreme CourtSubject to the provisions of any law made by Parliament or any

rules made under Article 145, the Supreme Court shall havepower 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 TheSupreme Court Rules, 1966, it was contained in Order XL) and it readsas follows:

“ORDER XLVII

REVIEW

1. The Court may review its judgment or order, but no applicationfor review will be entertained in civil proceeding except on theground mentioned in Order XLVII, rule I of the Code, and in acriminal proceeding except on the ground of an error apparenton the face of the record.

The application for review shall be accompanied by certificateof the Advocate on Record certifying that it is the first applicationfor review and is based on the grounds admissible under theRules.

2. An application for review shall be by petition, and shall befiled within thirty days from the date of the judgment or ordersought to be reviewed. It shall set out clearly the grounds forreview.

3. Unless otherwise ordered by the Court an application forreview shall be disposed of by circulation without any oralarguments, but the petitioner may supplement his petition byadditional written arguments. The Court may either dismiss thepetition or direct notice to the opposite party. An application forreview shall as far as practicable be circulated to the same Judgeor Bench of Judges that delivered the judgment or order soughtto be reviewed.

4. Where on an application for review the Court reverses ormodifies its former decision in the case on the ground of mistakeof law or fact, the Court, may, if it thinks fit in the interests ofjustice to do so, direct the refund to the petitioner of the court-fee paid on the application in whole or in part, as it may thinkfit.

A5. Where an application for review of any judgment and orderhas been made and disposed of, no further application for reviewshall be entertained in the same matter.”

19. Thus, perusal of the same would show that the jurisdictionof this Court, to entertain review petition in civil matter, is patternedBon the power of the Court under Order XLVII Rule 1 of The Code ofCivil 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 decree or order from which an appeal isallowed, but from no appeal has been preferred,

(b) by decree or order from which no appeal isallowed, or

(c) by decision on reference from Court of SmallCauses,

and who, from the discovery of new and important matter orEevidence which, after the exercise of due diligence was not withinhis knowledge or could not be produced by him at the time whenthe decree was passed or order made, or on account of somemistake or error apparent on the face of the record or for anyother sufficient reason, desires to obtain review of the decreepassed or order made against him, may apply for review ofFjudgement to the Court which passed the decree or made theorder.

(2) party who is not appealing from decree or ordermay apply for review of judgement notwithstandingthe pendency of an appeal by some other party exceptwhere the ground of such appeal is common to theapplicant and the appellant, or when, being respondent,he can present to the Appellate Court the case on whichhe applies for the review.

Explanation.- The fact that the decision on question of law onwhich the judgement of the Court is based has been reversed or

modified by the subsequent decision of superior Court in anyother case, shall not be ground for the review of suchjudgement.”

21. It will be noticed that in criminal matters, review lies on anerror apparent on the face of record being established. However, it isnecessary to notice what Constitution Bench of this Court laid downin P.N. Eswara Iyer And Othersv. Registrar, Supreme Court of India3:

“34. The rule [Ed.:Order 40, Rule 1 of the Supreme Court Rules], on its face, affords wider set of grounds for review for ordersin civil proceedings, but limits the ground vis-a-vis criminalproceedings to “errors apparent on the face of the record”. Ifat all, the concern of the law to avoid judicial error should beheightened when life or liberty is in peril since civil penalties areoften less traumatic. So, it is reasonable to assume that theframers of the rules could not have intended restrictive reviewover criminal orders or judgments. It is likely to be the other wayabout. Supposing an accused is sentenced to death by theSupreme Court and the “deceased” shows up in court and thecourt discovers the tragic treachery of the recorded testimony.Is the court helpless to review and set aside the sentence ofhanging? We think not. The power to review is in Article 137and it is equally wide in all proceedings. The rule merely canalisesthe flow from the reservoir of power.The stream cannot stiflethe source. Moreover, the dynamics of interpretation depend onthe demand of the context and the lexical limits of the test. Here“record” means any material which is already on record or may,with the permission of the court, be brought on record. If justicesummons the Judges to allow vital material in, it becomes partof the record; and if apparent error is there, correction becomesnecessitous.

35. The purpose is plain, the language is elastic and interpretationof necessary power must naturally be expansive. Thesubstantive power is derived from Article 137 and is as wide forcriminal as for civil proceedings.Even the difference inphraseology in the rule (Order 40 Rule 2) must, therefore, beread to encompass the same area and not to engraft an artificialdivergence productive of anomaly. If the expression “record” is

Aread to mean, in its semantic sweep, any material even laterbrought on record, with the leave of the court, it will embracesubsequent events, new light and other grounds which we findin Order 47 Rule 1, CPC. We see no insuperable difficulty inequating the area in civil and criminal proceedings when reviewpower is invoked from the same source.”

(Emphasis supplied)

22. In Suthendraraja Alias Suthenthira Raja Alias Santhanand othersv. State Through DSP/CBI, SIT, Chennai4, referring to thejudgement in P.N. Eswara Iyer(supra), it was, inter alia, held that theCscope of review was widened considerably by the pronouncement.

23. In Haridas Dasv. Usha Rani Banik (Smt.) and others5, thequestion arose out of an appeal in the High Court, wherein the HighCourt accepted the prayer for review. This Court held as follows:

“13. … The parameters are prescribed in Order 47 CPC andDfor the purposes of this lis, permit the defendant to press for arehearing “on account of some mistake or error apparent on the”face of the records or for any other sufficient reason. Theformer part of the rule deals with situation attributable to theapplicant, and the latter to jural action which is manifestlyEincorrect or on which two conclusions are not possible. Neitherof them postulate rehearing of the dispute because party hadnot highlighted all the aspects of the case or could perhaps haveargued them more forcefully and/or cited binding precedents tothe court and thereby enjoyed favourable verdict.This is amplyevident from the Explanation to Rule 1 of Order 47 which statesFthat the fact that the decision on question of law on which thejudgment of the court is based has been reversed or modifiedby the subsequent decision of superior court in any other case,shall not be ground for the review of such judgment. Wherethe order in question is appealable the aggrieved party hasGadequate and efficacious remedy and the court should exercisethe power to review its order with the greatest circumspection.…”

(Emphasis supplied)

4 (1999) 9 SCC 323H5 (2006) 4 SCC 78

24. Jain Studios Ltd. Through Its Presidentv. Shin Satellite PublicCo. Ltd.6 involved an order passed by Judge in Chambers. It was soughtto review the order passed which is reported in Shin Satellite PublicCo. Ltd.v. Jain Studios Ltd.7. In the Arbitration Petition which wasthe main matter, there was prayer to appoint an Arbitrator by thereview 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 isconcerned, the learned counsel for the opponent is right insubmitting that virtually the applicant seeks the same relief whichhad been sought at the time of arguing the main matter and hadbeen negatived. Once such prayer had been refused, no reviewpetition would lie which would convert rehearing of the originalmatter. It is settled law that the power of review cannot beconfused with appellate power which enables superior courtto correct all errors committed by subordinate court.It is notrehearing of an original matter. repetition of old and overruledargument is not enough to reopen concluded adjudications. Thepower of review can be exercised with extreme care, cautionand circumspection and only in exceptional cases.”

(Emphasis supplied)

25. In State of West Bengal and othersv. Kamal Sengupta andanother8, this Court, inter alia, held as follows:

“21. At this stage it is apposite to observe that where reviewis sought on the ground of discovery of new matter or evidence,such matter or evidence must be relevant and must be of sucha character that if the same had been produced, it might havealtered the judgment. In other words, mere discovery of new orimportant matter or evidence is not sufficient ground forreview ex debito justitiae. Not only this, the party seekingreview has also to show that such additional matter or evidencewas not within its knowledgeand even after the exercise of duediligence, the same could not be produced before the courtearlier.”

(Emphasis supplied)

6 (2006) 5 SCC 501

7 (2006) 2 SCC 628

8 (2008) 8 SCC 612

A26. In Moran Mar Basselios Catholicos and anotherv. Most Rev.Mar Poulose Athanasius and others9, the question, which fell forconsideration was, whether misconception of the court about aconcession by counsel, furnished ground for review. court maypronounce judgement on the basis that concession had been madeby the counsel when none had been made. The court may alsoBmisapprehend the terms of the concession or the scope of concession.When such misconception underscores judgment, whether reviewwould lie? Answering the said question, this Court proceeded to holdas follows:

“36. … Patanjali Sastri, J. (as he then was) sitting singly in theCMadras High Court definitely took the view in Rekhanti ChinnaGovinda Chettiyar v. S. Varadappa Chettiar [AIR 1940 Mad.17] that misconception by the court of concession made bythe advocate or of the attitude taken up by the party appears tobe ground analogous to the grounds set forth in the first partof the review section and affords good and cogent ground forDreview. The learned Attorney-General contends that this affidavitand the letters accompanying it cannot be said to be part of “therecord” within the meaning of Order 47 Rule 1. We see no reasonto construe the word “record” in the very restricted sense aswas done by Denning, L.J., in Rex v. NorthumberlandECompensation Appeal Tribunal Ex parte Shaw [(1952) 2 KB-338 at pp. 35152] which, was case of certiorari and includewithin that term only the document which initiates theproceedings, the pleadings and the adjudication and exclude theevidence and other parts of the record. Further, when the errorcomplained of is that the court assumed that concession hadFbeen made when none had in fact been made or that the courtmisconceived the terms of the concession or the scope and extentof it, it will not generally appear on the record but will have tobe brought before the court by way of an affidavit as suggestedby the Privy Council as well as by this Court and this can onlyGbe done by way of review. The cases to which reference hasbeen made indicate that the misconception of the court must beregarded as sufficient reason analogous to an error on the faceof the record. In our opinion it is permissible to rely on theaffidavit as an additional ground for review of the judgment.”

(Emphasis supplied)

27. It is pertinent to notice that this Court did not confine theword “record” in the narrow sense in which it was interpreted as inthe case of an application of Writ of Certiorari. This Court alsosanctioned support being drawn from an affidavit by the counsel in thisregard, as additional ground for review. Misconception by court, wasfound 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 ground toseek review. In Girdhari Lal Guptav. D.N. Mehta and another10, thisCourt held as follows:

“16. The learned counsel for the respondent State urges that thisis not case fit for review because it is only case of mistakenjudgment. But we are unable to agree with this submissionbecause at the time of the arguments our attention was not drawnspecifically to sub-section 23-C(2) and the light it throws on theinterpretation of sub-section (1).”

(Emphasis supplied)

29. Also, see in this regard, judgment in Deo Narain Singhv.Daddan Singh and others11 where finding that this Court had decidedthe case on the basis of Statute, which was inapplicable in the facts,review was granted.

30. In Sow Chandra Kante and another v. Sheikh Habib12, thejudgment involved request to review the decision of this Court refusingspecial leave to appeal in matter, this Court held as follows:

“… review of judgment is serious step and reluctant resortto it is proper only where glaring omission or patent mistakeor like grave error has crept in earlier by judicial fallibility. mererepetition, through different counsel, of old and overruledarguments, second trip over ineffectually covered ground orminor mistakes of inconsequential import are obviouslyinsufficient. …”

(Emphasis supplied)

10 AIR 1971 SC 2162

11 1986 (Supp) SCC 53012 (1975) 1 SCC 674

A31. Two documents, which were part of the record, wereconsidered by the Judicial Commissioner to allow review by the HighCourt. This Court, in appeal, in the judgement in Aribam Tuleshwar13Sharmav. Aribam Pishak Sharma and others, found as follows:

“4. In the present case both the grounds on which the reviewBwas allowed were hardly grounds for review. That the twodocuments which were part of the record were not consideredby the Court at the time of issue of writ under Article 226cannot be ground for review especially when the twodocuments were not even relied upon by the parties in theaffidavits filed before the Court in the proceedings under ArticleC226.Again that several instead of one writ petition should havebeen filed is mere question of procedure which certainly wouldnot justify review. We are, therefore, of the view that theJudicial Commissioner acted without jurisdiction in allowing thereview. The order of the Judicial Commissioner dated DecemberD7, 1967 is accordingly set aside and the order dated May 25,1965, is restored. The appeal is allowed but without costs.”

(Emphasis supplied)

32. M/s. Northern India Caterers (India) Ltd.v. Lt. Governorof Delhi14 was case which fell to be considered under Article 137 ofEthe Constitution of India. The relevant discussion is found in paragraphs8 and 9. They read as follows:

“8. It is well-settled that party is not entitled to seek reviewof judgment delivered by this Court merely for the purpose ofa rehearing and fresh decision of the case. The normal principleFis that judgment pronounced by the Court is final, and departurefrom that principle is justified only when circumstances of asubstantial and compelling character make it necessary to doso: Sajjan Singh v. State of Rajasthan [AIR 1965 SC 845 :(1965) 1 SCR 933, 948 : (1965) 1 SCJ 377] . For instance, if theGattention of the Court is not drawn to material statutoryprovision during the original hearing, the Court will review itsjudgment: G.L. Gupta v. D.N. Mehta [(1971) 3 SCC 189 : 1971

13 (1979) 4 SCC 389H14 (1980) 2 SCC 167

SCC (Cri) 279 : (1971) 3 SCR 748, 750]. The Court may alsoreopen its judgment if manifest wrong has been done and it isnecessary to pass an order to do full and effective justice: O.N.Mohindroo v. Distt. Judge, Delhi [(1971) 3 SCC 5 : (1971) 2SCR 11, 27] . Power to review its judgments has been conferredon the Supreme Court by Article 137 of the Constitution, and thatpower is subject to the provisions of any law made by Parliamentor the rules made under Article 145. In civil proceeding, anapplication for review is entertained only on ground mentionedin Order 47 Rule 1 of the Code of Civil Procedure, and in acriminal proceeding on the ground of an error apparent on theface of the record (Order 40 Rule 1, Supreme Court Rules, 1966).But whatever the nature of the proceeding, it is beyond disputethat review proceeding cannot be equated with the originalhearing of the case, and the finality of the judgment deliveredby the Court will not be reconsidered except “where glaringomission or patent mistake or like grave error has crept in earlierby judicial fallibility”: Sow Chandra Kante v. SheikhHabib [(1975) 1 SCC 674 : 1975 SCC (Tax) 200 : (1975) 3 SCR933].

9. Now, besides the fact that most of the legal material soassiduously collected and placed before us by the learnedAdditional Solicitor General, who has now been entrusted toappear for the respondent, was never brought to our attentionwhen the appeals were heard, we may also examine whetherthe judgment suffers from an error apparent on the face of therecord. Such an error exists if of two or more views canvassedon the point it is possible to hold that the controversy can be saidto admit of only one of them. If the view adopted by the Courtin the original judgment is possible view having regard to whatthe record states, it is difficult to hold that there is an errorapparent 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 tobe adduced by the Revenue to establish that the transaction amountedto sale.

ABC

958SUPREME COURT REPORTS

A34. The foundations, which underlie the review jurisdiction, hasbeen examined by this Court at some length in the judgment in S.Nagaraj and othersv. State of Karnataka and another15:

“18. Justice is virtue which transcends all barriers. Neither therules of procedure nor technicalities of law can stand in its way.BThe order of the Court should not be prejudicial to anyone. Ruleof stare decisis is adhered for consistency but it is not as inflexiblein Administrative Law as in Public Law. Even the law bendsbefore justice. Entire concept of writ jurisdiction exercised bythe higher courts is founded on equity and fairness. If the Courtfinds that the order was passed under mistake and it wouldCnot have exercised the jurisdiction but for the erroneousassumption which in fact did not exist and its perpetration shallresult in miscarriage of justice then it cannot on any principle beprecluded from rectifying the error. Mistake is accepted as validreason to recall an order. Difference lies in the nature of mistakeDand scope of rectification, depending on if it is of fact or law.But the root from which the power flows is the anxiety to avoidinjustice. It is either statutory or inherent. The latter is availablewhere the mistake is of the Court. In Administrative Law thescope is still wider. Technicalities apart if the Court is satisfiedof the injustice then it is its constitutional and legal obligation toEset it right by recalling its order. Here as explained, the Benchof which one of us (Sahai, J.) was member did commit an errorin placing all the stipendiary graduates in the scale of FirstDivision Assistants due to State’s failure to bring correct factson record. But that obviously cannot stand in the way of theFCourt correcting its mistake. Such inequitable consequences ashave surfaced now due to vague affidavit filed by the Statecannot be permitted to continue.19. Review literally and even judicially means re-examination orre-consideration. Basic philosophy inherent in it is the universalGacceptance of human fallibility.Yet in the realm of law the courtsand even the statutes lean strongly in favour of finality of decisionlegally and properly made. Exceptions both statutorily andjudicially have been carved out to correct accidental mistakesor miscarriage of justice. Even when there was no statutory

provision and no rules were framed by the highest court indicatingthe circumstances in which it could rectify its order the courtsculled out such power to avoid abuse of process or miscarriageof justice.In Raja Prithwi Chand Lal Choudhury v. SukhrajRai [AIR 1941 FC 1, 2 : 1940 FCR 78 : (1941) 1 MLJ Supp 45]the Court observed that even though no rules had been framedpermitting the highest Court to review its order yet it wasavailable on the limited and narrow ground developed by thePrivy Council and the House of Lords. The Court approved theprinciple laid down by the Privy Council in Rajunder NarainRae 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 couldnot be altered:

“… nevertheless, if by misprision in embodying the judgments,by errors have been introduced, these Courts possess, byCommon law, the same power which the Courts of recordand statute have of rectifying the mistakes which have crept

in …. The House of Lords exercises similar power ofrectifying mistakes made in drawing up its own judgments,and this Court must possess the same authority. The Lordshave however gone step further, and have correctedmistakes introduced through inadvertence in the details ofjudgments; or have supplied manifest defects in order to enablethe decrees to be enforced, or have added explanatory matter,or have reconciled inconsistencies.”

Basis for exercise of the power was stated in the same decisionas under:

“It is impossible to doubt that the indulgence extended in suchcases is mainly owing to the natural desire prevailing to preventirremediable injustice being done by Court of last resort,where by some accident, without any blame, the party hasnot been heard and an order has been inadvertently made asif the party had been heard.”

Rectification of an order thus stems from the fundamentalprinciple that justice is above all. It is exercised to remove theerror and not for disturbing finality. When the Constitution wasframed the substantive power to rectify or recall the order passedby this Court was specifically provided by Article 137 of the

AConstitution. Our Constitution-makers who had the practicalwisdom to visualise the efficacy of such provision expresslyconferred the substantive power to review any judgment or orderby Article 137 of the Constitution. And clause (c) of Article 145permitted this Court to frame rules as to the conditions subjectto which any judgment or order may be reviewed. In exerciseBof this power Order XL had been framed empowering this Courtto review an order in civil proceedings on grounds analogous toOrder XLVII Rule 1 of the Civil Procedure Code. Theexpression, ‘for any other sufficient reason’ in the clause has beengiven an expanded meaning and decree or order passed underCmisapprehension of true state of circumstances has been heldto be sufficient ground to exercise the power. Apart from OrderXL Rule 1 of the Supreme Court Rules this Court has theinherent power to make such orders as may be necessary in theinterest of justice or to prevent the abuse of process of Court.The Court is thus not precluded from recalling or reviewing itsDown order if it is satisfied that it is necessary to do so for sakeof justice.”

(Emphasis supplied)

35. The decision in S. Nagaraj(supra), has been followed inEvarious judgements of this Court (See Lily Thomas and othersv. Unionof India and others16; Haryana State Industrial DevelopmentCorporation Limited.v. Mawasi and others17 ; Kamlesh Vermav.18Mayawati and others; Usha Bhartiv. State of Uttar Pradesh andothers19 and Vikram Singh Alias Vicky Walia and anotherv. State ofPunjab and another20).F36. In Kamlesh Verma(supra), this Court in paragraph 20, laiddown its conclusions, which reads as follows:

“Summary of the principles

20. Thus, in view of the above, the following grounds of reviewGare maintainable as stipulated by the statute:16 (2000) 6 SCC 22417 (2012) 7 SCC 20018 (2013) 8 SCC 32019 (2014) 7 SCC 663H20 (2017) 8 SCC 518.

20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidencewhich, after the exercise of due diligence, was not withinknowledge of the petitioner or could not be producedby him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words “any other sufficient reason” have been interpretedin Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW37 : AIR 1922 PC 112] and approved by this Court in MoranMar Basselios Catholicos v. Most Rev. Mar PouloseAthanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean “areason sufficient on grounds at least analogous to those specifiedin the rule”. The same principles have been reiterated in Unionof India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC337: JT (2013) 8 SC 275]

20.2. When the review will not be maintainable:

(i) repetition of old and overruled argument is not enoughto reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the originalhearing of the case.

(iv) Review is not maintainable unless the material error,manifest on the face of the order, undermines itssoundness or results in miscarriage of justice.

(v) review is by no means an appeal in disguise wherebyan erroneous decision is reheard and corrected but liesonly for patent error.

(vi) The mere possibility of two views on the subject cannotbe ground for review.

(vii) The error apparent on the face of the record should notbe an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully withinthe domain of the appellate court, it cannot be permittedto be advanced in the review petition.

A(ix) Review is not maintainable when the same relief soughtat the time of arguing the main matter had beennegatived.”

37. In very recent judgment, in fact, relied upon by the Unionof India, viz., Mukesh(supra), in review petition in criminal appeal,Bthis Court reiterated that 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 renderingjustice remain uppermost in the mind of the Court, has led to theCConstitution Bench judgement in Rupa Ashok Hurrav. Ashok Hurraand another21. It is in the said case that the concept of curative petitionwas devised to empower litigant to seek reconsideration of matterwherein the review petition also is unsuccessful. Certain steps havebeen laid down in this regard which stand incorporated in The SupremeCourt Rules, 2013 [in Part IV Order XLVIII thereof].D

39. Undoubtedly, any error to be an error on the face of therecord, cannot be one which has to be established by long drawn outprocess of reasoning on points where there may conceivably be twoopinions or if the error requires lengthy and complicated arguments toestablish it, Writ of Certiorari would not lie (See SatyanarayanELaxminarayan Hegde and othersv. Mallikarjun BhavanappaTirumale22). This principle is equally applicable to review petition also.

40. On conspectus of the above decisions, the followingconclusions appeared to be inevitable and they also provide the premisefor review:F

Justice above all. While review petition has not been understoodas an appeal in disguise and mere erroneous decision may not justifya review, decision which betrays an error which is apparent, doesentitle the court to exercise its jurisdiction under Article 137 of theConstitution. The founding fathers were conscious that this Court wasGthe final Court. There are two values, which in any system of law, maycollide. On the one hand, recognizing that men are not infallible andthe courts are manned by men, who are prone to err, there must be asafety valve to check the possibility of grave injustice being reached to

21 (2002) 4 SCC 388H22 AIR 1960 SC 137

litigant, consequent upon an error, which is palpable or as result ofrelevant material despite due diligence by litigant not being madeavailable or other sufficient reason. The other value which is ever-present in the mind of the law giver, is, there must be finality tolitigation. Be it judgments of final court, if it becomes vulnerable toindiscriminate reopening, unless strong ground exists, which itself isbased on manifest error disclosed by the judgment or the other twogrounds mentioned in Order XLVII of the CPC in civil matter, it wouldspawn considerable inequity.

41. It must be noticed that the principle well-settled in regardto jurisdiction in review, is that review is not an appeal in disguise.The applicant, in review, is, on most occasions, told off the gates, bypointing out that his remedy lay in pursuing an appeal. In the case of adecision rendered by this Court, it is to be noticed that the underpinningbased on availability of an appeal, is not available as this Court is thefinal Court and no appeal lies.

42. It is no doubt true that the Supreme Court Rules, 2013, certainpowers are conferred on the Registrar as also on the Judge holdingCourt in Chambers and appeals, indeed, are provided in respect ofcertain orders passed by the Registrar.

43. The fact that no appeal lies from the judgment of this Courtmay not, however, result in the jurisdiction of this Court under Article137 of the Constitution being enlarged. However, when the Court isinvited to exercise its power of review, this aspect may also be bornein mind, viz., that unlike the other courts from which an appeal may beprovided either under the Constitution or other laws, or by special leaveunder Article 136 of the Constitution, no appeal lies from the judgmentof this Court, and it is in that sense, the final Court. The underlyingassumption for the principle that review is not an appeal in disguise,being that the decision isappealable, is really not available in regard toa decision rendered by this Court, is all that is being pointed out.

44. review petition is maintainable if the impugned judgmentdiscloses an error apparent on the face of the record. Unlike aproceeding in Certiorari jurisdiction, wherein the error must not onlybe apparent on the face of the record, it must be an error of law, whichmust be apparent on the face of the record, for granting review underArticle 137 of the Constitution read with Order XLVII Rule 1 of theCPC, the error can be an error of fact or of law. No doubt, it must be

Aapparent on the face of record. Such an error has been described as apalpable error or glaring omission. As to what constitutes an errorapparent on the face of record, is matter to be found in context ofthe facts of each case. It is worthwhile to refer to the followingdiscussion in this regard by this Court in Hari Vishnu Kamathv. AhmadIshaque and Others23, wherein, this Court held as follows:B

“23. It may therefore be taken as settled that writ of certioraricould be issued to correct an error of law. But it is essential thatit should be something more than mere error; it must be onewhich must be manifest on the face of the record. The realdifficulty with reference to this matter, however, is not so muchCin the statement of the principle as in its application to the factsof particular case. When does an error cease to be mere error,and become an error apparent on the face of the record? Learnedcounsel on either side were unable to suggest any clear-cut ruleby which the boundary between the two classes of errors couldDbe demarcated.

Mr Pathak for the first respondent contended on the strength ofcertain observations of Chagla, C.J. in Batuk K. Vyas v. SuratMunicipality [AIR 1953 Bom 133] that no error could be said-to be apparent on the face of the record if it was not selfevident,Eand if it required an examination or argument to establish it. Thistest might afford satisfactory basis for decision in the majorityof cases. But there must be cases in which even this test mightbreak down, because judicial opinions also differ, and an error-that might be considered by one Judge as selfevident might notbe so considered by another. The fact is that what is an errorFapparent on the face of the record cannot be defined preciselyor exhaustively, there being an element of indefiniteness inherentin its very nature, and it must be left to be determined judiciallyon the facts of each case.”

(Emphasis supplied)

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 bethat if the relevant law is ignored or an inapplicable law forms thefoundation for the judgement, it would provide ground for review. If

H23 AIR 1955 SC 233

court is oblivious to the relevant statutory provisions, the judgmentwould, in fact, be per incuriam. No doubt, the concept of per incuriamis apposite in the context of its value as the precedent but as betweenthe parties, certainly it would be open to urge that judgment rendered,in ignorance of the applicable law, must be reviewed. The judgment, insuch case, becomes open to review as it would betray clear errorin the decision.

46. As regards fresh material forming basis for review, it mustbe of such nature that it is relevant and it undermines the verdict. Thisis apart from the requirement that it could not be produced despite duediligence.

47. The dismissal of special leave petition takes place at twolevels. In the first place, the Court may dismiss or reject special leavepetition at the admission stage. Ordinarily, no reasons accompany sucha decision. In matters where special leave petition is dismissed afternotice is issued, also reasons may not be given ordinarily. Severalelements enter into the consideration of this Court where special leavepetition is dismissed. The task for review applicant becomesformidable as reasons are not given. An error apparent on the face ofthe record becomes difficult to establish. In writ petition wherepleadings are exchanged and reasons are given in support of the verdict,a self-evident error is detected without much argument. No doubt, aCourt, in review, does not reappreciate and correct mere erroneousdecision. That reappreciation is tabooed, is not the same as holding thata Court will not appreciate the case as reflected in the pleadings andthe law by which the Court is governed.

48. In this case, the short point, which this Court is called uponto consider, is the effect of the impugned judgment not dealing with abinding decision rendered by Constitution Bench which was reliedupon by the petitioners in Writ Petition (Criminal) No. 298 of 2018 andrendered in Lalita Kumari(supra). It is apposite that I set out whatthis 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 154of the Code, if the information discloses commission of

Acognizable offence and no preliminary inquiry is permissible insuch situation.

120.2. If the information received does not disclose cognizableoffence but indicates the necessity for an inquiry, preliminaryinquiry may be conducted only to ascertain whether cognizableBoffence is disclosed or not.

120.3. If the inquiry discloses the commission of cognizableoffence, the FIR must be registered. In cases where preliminaryinquiry ends in closing the complaint, copy of the entry of suchclosure must be supplied to the first informant forthwith and notlater than one week.It must disclose reasons in brief for closingthe complaint and not proceeding further.

120.4. The police officer cannot avoid his duty of registeringoffence if cognizable offence is disclosed. Action must be takenagainst erring officers who do not register the FIR if informationDreceived by him discloses cognizable offence.

120.5. The scope of preliminary inquiry is not to verify theveracity or otherwise of the information received but only toascertain whether the information reveals any cognizable offence.

E120.6. As to what type and in which cases preliminary inquiry isto be conducted will depend on the facts and circumstances ofeach case. The category of cases in which preliminary inquirymay 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 initiatingcriminal prosecution, for example, over 3 months’ delayin reporting the matter without satisfactorily explainingthe reasons for delay.

The aforesaid are only illustrations and not exhaustive of allHconditions which may warrant preliminary inquiry.

120.7. While ensuring and protecting the rights of the accused-and the complainant, preliminary inquiry should be made timebound and in any case it should not exceed 7 days.The fact ofsuch delay and the causes of it must be reflected in the GeneralDiary entry.

120.8. Since the General Diary/Station Diary/Daily Diary is therecord of all information received in police station, we directthat all information relating to cognizable offences, whetherresulting in registration of FIR or leading to an inquiry, must bemandatorily and meticulously reflected in the said diary and thedecision to conduct preliminary inquiry must also be reflected,as mentioned above.”

(Emphasis supplied)

49. It is their contention, therefore, that the writ petition came tobe clubbed along with other writ petitions. This Court proceeded toundertake judicial review of the processes which led to the decision topurchase 36 planes going back on the earlier decision which was topurchase 136 planes.

50. According to the petitioners, therefore, this Court committeda clear error in not focusing on the relief sought in their writ petitionwhich was based on the Constitution Bench of this Court which wasbinding on Bench of lesser strength (three). All this Court is beingasked to do, according to the petitioners, having regard to the lawbinding on it, is to direct the registration of the FIR. There is also reliefsought to submit reports in the same.

51. The procedure, which is to be adopted by the authorities, hasbeen elaborated upon. There can be no escape from the mandatoryprocedure laid down by this Court.

52. Where party institutes proceeding, if the proceeding isof civil nature, there would be cause of action. There would bereliefs sought on the basis of the cause of action. Materials areproduced both in support and against the claim. The Court thereafterrenders judgement either accepting the case or rejecting the case.When the Court rejects the case, it necessarily involves refusing to grantthe relief sought for by the plaintiff/petitioner. It may transpire that thepetitioner may not press for certain reliefs. The Court may, after applyingits mind to the case, find that the petitioner is not entitled to the relief

Aand decline the prayers sought. It may also happen that the court doesrefer to the reliefs sought but thereafter does not undertake anydiscussion 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 isrevealed by the judgment sought to be reviewed.

B53. judgment may be silent in regard to relief which is soughtby party. It is apposite, in this regard, to notice Section 11 of the CPC.If decree is silent, as regards any relief which is claimed by theplaintiff, Explanation V to Section 11 declares that the relief must betreated as declined. The Explanation reads as follows:

C“Section 11, Explanation V.- Any relief claimed in the plaint,which is not expressly granted by the decree, shall, for thepurposes of this section, be deemed to have been refused.”

54. No doubt, if the relief is expressly refused, then also, thematter would become res judicata. It is, therefore, of vital importance

Dthat when case is decided, the Court considers the claim and the reliefsought, applies the Statute which is applicable and the law which is laiddown particularly when it is by Constitution Bench in deciding thecase. Just as, in the case of judgement, where the applicable Statute,not being applied, would result in judgment which becomes amenableto be corrected in review, there can be no reason why when bindingEjudgment of this Court, which is enlisted by the party, is ignored, it shouldhave different consequence. In fact, since review under Article 137of the Constitution, in civil matter, is to be exercised, based on whatis contained in Order XLVII Rule 1 of the CPC, the Explanationtherein, may shed some light. The Explanation which was inserted byFthe Act of 1976, following the recommendations of the Law Commissionof India, in its 54[th] Report, declares that the law is laid down by asuperior court reversing an earlier decision, on question of law, willnot be ground for the review of judgment.

55. The Law Commission, in fact, in the said Report reasonedGthat adopting the view taken by the Kerala High Court in the decisionin Thadikulangara Pylee’s son Pathrosev. Ayyazhiveettil LakshmiAmma’s son Kuttan and others24 that later judgment would amountto discovery of new and important matter, and in any case an error onthe face of the record, would keep alive the possibility of review

H24 AIR 1969 KER 186

indefinitely. This impliedly would mean that when court decides case,it must follow judgments which are binding on it. This is not to say thata smaller Bench of this Court, if it entertains serious doubts about thecorrectness of an earlier judgment, may not consider referring thematter to larger Bench. However, as long as it does not undertakeany such exercise, it cannot refuse to follow the judgment and that tooof Constitution Bench. Any such refusal to follow the decision bindingon it, would undoubtedly disclose an error which would be palpablebeing self-evident.

56. In this case, when this Court rendered the judgment, soughtto 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 soughtby the petitioners, the dismissal of the writ petition would be, accordingto petitioners, in the teeth of binding judgment of this Court. Just asin the case of binding Statute being ignored and giving rise to theright to file review, neither on logic nor in law would the refusal tofollow binding judgement, qualify for different treatment if reviewis filed. Be it civil or criminal matter, an error apparent on the faceof the record, furnishes ground for review.

58. This is not case where an old argument is being repeatedin the sense that after it has been considered and rejected, it is re-echoed in review. It is an argument which was undoubtedly pressed inthe original innings. It is not the fault of the party if the court chose noteven to touch upon it. No doubt, it may be different in case where aground or relief sought is ignored and it is found justified otherwise.But where ground, which is based on principles laid down by aConstitution Bench of this Court, is not dealt with at all and it iscomplained of in review, it will rob the review jurisdiction of the verypurpose it is intended to serve, if the complaint otherwise meritorious,is not heeded to.59. learned Single Judge, in an arbitration request, turned downa plea to appoint person as Arbitrator. In review, the request wassought to be resurrected. It was in this context that learned SingleJudge of this Court, sitting in Chambers, in the decision reported in JainStudios Ltd.(supra), laid down that once such relief was refused inthe main matter, no review petition would lie. However, following the

Asaid judgment, this Court, in the decision reported in Kamlesh Verma(supra), summarising the principle, came to declare in paragraph 20.2(ix),that review is not maintainable when the same relief sought at the timeof arguing the main matter, has been negatived.

60. With regard to the said principle, the context in which it wasBlaid down in the decision by learned Single Judge in Jain Studios Ltd.(supra), has already been noted. The said principle, as stated, cannotbe 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 factualcontext and not as an immutable axiom not admitting of exceptions.Take case where Writ of Mandamus is sought for after demandCis made. The demand is placed on record and is not even controverted.In the main proceeding, Mandamus is refused on the ground that thereis no demand. It amounts to denial of relief. But the verdict is clearlyafflicted with palpable error, and if the complaint is made in reviewabout the denial of relief on ground which is patently untenable,Dcertainly, review would lie. There can be many other examples wherethe denial of relief is palpably wrong and self-evident. It is different, ifon an appreciation of evidence or applying the law, and where two viewsare possible, relief is refused. In fact, broadly, denial of relief can occurin two situations. There are situations where the grant of relief itself isdiscretionary. There are other situations where if certain set of factsEare established, the plaintiff/appellant cannot be told off the gates. Adefendant, who appeals against time-barred suit being decreed,establishes that suit is time-barred, and the facts, as stated in thejudgment itself, unerringly point to such premise. If still, the AppellateCourt decrees the suit and denies relief to the defendant/appellant, canit be said that review will not lie? The answer can only be that aFreview will lie.

61. To test the hypothesis that on the facts this Court was wrongand manifestly so in declining in not following the dicta of theConstitution Bench in Lalita Kumari(supra), reverse process ofreasoning can be employed to appreciate the matter further. Can it beGsaid that refusing to follow Constitution Bench, laying down theresponse of the Officers to complaint alleging the commission of acognizable offence, has not been observed in its breach? If the reviewpetition, in other words, is rejected, in substance this Court would beupholding its judgment which when placed side-by-side with theHpronouncement of the Constitution Bench in Lalita Kumari(supra), thetwo judgments cannot be squared. It must co-exist despite the patentdeparture, the impugned judgment manifests from the law laid downby the Constitution Bench. But that being impossible, the ConstitutionBench must prevail and the impugned judgment stand overwhelmed tothe extent it is inconsistent. It may be true that in view of the fact thatfour writ petitions were heard together, this Court has proceeded tofocus on the merits of the matters itself undoubtedly from the standpointof the limited judicial review which it could undertake in matter ofthe nature in question. On the basis of the said exercise, the Court hasconcluded that there were no materials for the Court to interfere. Butthis is far cry from holding that it will not follow the mandate of theConstitution Bench of this Court in regard to the steps to be undertakenby the Officer on receipt of complaint purporting to make out thecommission of cognizable offence. This Court may declare that it wasnon-suiting the petitioners seeking judicial review, having regard to theabsence of materials which would have justified holding the award ofthe contract in question vulnerable. It would not mean that it is eitherprecluded or that it was not duty-bound to still direct that the law laiddown by the Constitution Bench in Lalita Kumari(supra) be conformedto.

62. If the complaint of the petitioner does make out thecommission of the cognizable offence and FIR is to be registered andmatter investigated, it will be no answer to suggest that this Court, hasapproved of the matter in judicial review proceedings under Article 32of the Constitution and making it clear that entire exercise must beviewed from the prism of the limited judicial review the Courtundertakes in such proceedings and this Court would end up payingless than lip service to the law laid down by the Constitution Bench inLalita Kumari(supra).

63. As far as the judicial review of the award of the contract isconcerned, apart from the fact that review does not permitreappreciation of the materials, there is the aspect of the petitionerseeking judicial review approaching the court late in the day. There isalso the aspect relating to the court’s jurisdiction not extending to permitit to sit in judgment over the wisdom of the Government of the day,particularly in matters relating to purchase of the goods involved in thiscase. Therefore, in regard to review, sought in relation to the findingsrelating to the judicial review, they cannot be found to be suffering frompalpable errors.

A64. Though, the stand of the Government of India has beennoticed, which is the second respondent in Writ Petition (Criminal) No.298 of 2018, the party, which has say in the matter or rather dutyin the matter in terms of the law laid down by this Court in Lalita Kumari(supra), is the first respondent, viz., Central Bureau of Investigation(CBI) before which petitioners have moved the Exhibit P1-complaint.BIt is quite clear that the first respondent, the premiere investigatingagency in the country, is expected to act completely independent of theGovernment of the day. The Government of India cannot speak onbehalf of the first respondent. Whatever that be, the fact remains thata decision in terms of what is laid down in Lalita Kumari(supra), is toCbe taken.65. One objection, which has apparently weighed with my learnedand noble Brother, is that, this Court, having dealt with the merits ofthe case, there could be no occasion for directing the compliance interms of Lalita Kumari(supra) by the first respondent. Reasoning ofDthe Court has been noticed. This Court has approached the matterproclaiming that it was doing so in the context of somewhat constrictedpower of judicial review. It is further made clear that the Court foundthat it is neither appropriate nor is it within the experience of this Courtto step into the arena of what is technically feasible. This Court alsodid not find any substantial material on record to show it to be caseEof commercial favouritism to any party by the Indian Government asthe option to choose the IOP did not rest with the Indian Government.In the concluding paragraph, it was clearly mentioned that the Court’sviews were primarily from the standpoint of exercise of jurisdiction underArticle 32 of the Constitution, which was invoked in this case.F

66. The question would, therefore arise, whether in suchcircumstances, the relief sought in Writ Petition (Criminal) No. 298 of2018, seeking compliance with Lalita Kumari(supra), was wronglydeclined. Differently put, the question would arise whether thepetitioners, having participated in the proceedings and inviting the CourtGto pronounce on the merits as well and cannot persuade the Court totake different view on the merits, could still ask the Court to find anerror and that too grave error in not heeding to the prayer in WritPetition (Criminal) No. 298 of 2018.

67. As noticed earlier, it is one thing to say that with the limitedHjudicial 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 party, and anotherthing to direct action on complaint in terms of the law laid down bythis Court. It is obvious that this Court was not satisfied with the materialwhich was placed to justify decision in favour of the petitioners. It isalso apparent that the Court has reminded itself of the fact that it wasneither appropriate nor within the experience of the Court to step intothe arena. It is equally indisputable that the entire findings are to beviewed from the standpoint of the nature of the jurisdiction it exercised.There are no such restrictions and limitations on an Officer investigatinga case under the law. Present case, making out the commission ofcognizable offence, starting with the lodging of the FIR after, no doubt,making preliminary inquiry where it is necessary, the fullest ofamplitude of powers under the law, no doubt, are available to the Officer.The discovery of facts by Officer carrying out an investigation, iscompletely different from findings of facts given in judicial review bya Court. The entire proceedings are completely different.68. In the impugned judgment, under the heading “Offsets”, thereis, at paragraph 28, reference to the complaint that favouring the IndianBusiness Group, has resulted in an offence being committed under thePrevention of Corruption Act. This Court extracted Clause (4.3) of theOffset Clause which provides that OEM/Vendor, Tier-1 Sub-Vendor willbe free to select the Indian Offset Partner for implementing the offsetobligation provided it has not been barred from doing business with theMinistry of Defence. This Court dealt with the same contentions inparagraph 32 of the impugned judgment, which reads as follows:

“32. It is no doubt true that the company, Reliance AerostructureLtd., has come into being in the recent past, but the press releasesuggests that there was possibly an arrangement between theparent Reliance Company and Dassault starting from the year2012. As to what transpired between the two corporates wouldbe matter best left to them, being matters of their commercialinterests, as perceived by them. There has been categoricaldenial, from every side, of the interview given by the formerFrench President seeking to suggest that it is the IndianGovernment which had given no option to the French Governmentin the matter. On the basis of materials available before us, thisappears contrary to the clause in DPP 2013 dealing with IOPswhich has been extracted above. Thus, the commercial

Aarrangement, in our view, itself does not assign any role to theIndian Government, at this stage, with respect to the engagementof IOP. Such matter is seemingly left to the commercial decisionof Dassault. That is the reason why it has been stated that therole of the Indian Government would start only when the vendor/OEM submits formal proposal, in the prescribed manner,Bindicating details of IOPs and products for offset discharge. Asfar as the role of HAL, insofar as the procurement of 36 aircraftsis concerned, there is no specific role envisaged. In fact, thesuggestion of the Government seems to be that there were somecontractual problems and Dassault was circumspect about HALCcarrying out the contractual obligation, which is also stated to beresponsible for the non-conclusion of the earlier contract.”

69. The very first statement in paragraph 32 would appear topoint to the Court taking into account Press Release suggesting thatthere was possibly an arrangement between the parent RelianceDCompany and Dassault starting from the year 2012. It is stated as towhat transpired between the two Corporates would be best left to them.In this regard, in the Review Petition, it is pointed out that this Courthas grossly erred in confusing Reliance Industries of which Mr. MukeshAmbani is the Chairman with that of Reliance Infrastructure of whichMr. Anil Ambani is the Chairman. It is further contended that Mr. AnilEAmbani’s Reliance Infrastructure is the parent company of RelianceAerostructure Limited (RAL), which is the beneficiary of the OffsetContract, and there is no possibility of any arrangement betweenReliance Infrastructure Limited with Dassault Aviation in 2012. Thereappears to be considerable merit in the case of the petitioners that inFthis regard, this Court had fallen into clear error that there was possiblyan arrangement between the parent Reliance Company and Dassaultdated back to the year 2012. The parent Reliance Company which wasreferred in the judgment is Reliance Industries which is completelydifferent corporate body from Reliance Infrastructure which appears,

according to the petitioners, to be the parent company of RAL.GThereafter, there is reference to the denial of the interview by theFormer French President. It is further noted that on the basis of thematerials, the commercial arrangement does not assign any role to theIndian Government at this stage with reference to the arrangement ofthe IOP. After making certain observations about HAL and role of theHIndian Government starting only when the Vendor/OEM submitted

formal proposal, this Court went on to make the observation containedin paragraph 33 which has already been extracted.

70. From the standpoint of the jurisdiction in judicial reviewproceedings and under Article 32 of the Constitution, as also absenceof any substantial material to show to be case of commercialfavouritism, it may be true that the findings other than which has beenreferred to may not disclose palpable error. This Court’s lack ofexperience of what is technically feasible, as noted by the Court, hasweighed with it.

POWERS OF POLICE OFFICER WIDER ANDDIFFERENT FROM THAT OF WRIT COURT

71. The ‘statutory right of the police to investigate about acognizable offence’ is well settled. In King-Emperorv. Nazir AhmadKhwaja25 , the Privy Council has, inter alia, held as follows:

“In India as has been shown there is statutory right on the partof the police to investigate the circumstances of an allegedcognizable crime without requiring any authority from the judicialauthorities, and it would as their Lordships think, be anunfortunate result if it should be held possible to interfere withthose statutory rights by an exercise of the inherent jurisdictionof the court. The functions of the judiciary and the police arecomplementary not overlapping and the combination of individualliberty with due observance of law and order is only to beobtained by leaving each to exercise its own function, always ofcourse subject to the right of the Court to intervene in anappropriate case when moved under S. 491 of the C.P.C. to givedirections in the nature of habeas corpus. In such case as thepresent, however, the Courts functions begin when charge ispreferred before it and not until then. …”

72. Following the same, this Court in M.C. Abraham and anotherv. State of Maharashtra and others26, held as follows:

“13. This Court held in the case of J.A.C. Saldanha [(1980) 1SCC 554 : 1980 SCC (Cri) 272] that there is clear-cut andwell-demarcated sphere of activity in the field of crime detection

25 AIR 1945 PC 18

26 (2003) 2 SCC 649

Aand crime punishment. Investigation of an offence is the fieldexclusively reserved by the executive through the policedepartment, the superintendence over which vests in the StateGovernment. It is the bounden duty of the executive toinvestigate, if an offence is alleged, and bring the offender tobook. Once it investigates and finds an offence having beenBcommitted, it is its duty to collect evidence for the purpose ofproving the offence. …”

73. The Police Officer is endowed with wide powers. Nothingthat constricted or limited this Court in the impugned judgment, appliesto an Officer who has undertaken an investigation into the commissionCof cognizable offence. In fact, in this case, the first respondent-CBIis the premiere investigation agency of the country. It is equipped toundertake all forms of investigations, be it technical or otherwise. Thefactors which concerned this Court can be recapitulated to bring outthe true role of an Investigator. This Court held, it is neither appropriateDnor within the Court’s experience to step into what is technical feasibleor not. No such limitation applies to an Investigator of cognizableoffence. What is important is that it is the duty of the InvestigatingOfficer to collect all material, be it technical or otherwise, and thereafter,submit an appropriate report to the court concerned, be it final reportor challan depending upon the materials unearthed. This Court reliedEon absence of substantial material. This is not restriction on theInvestigating Officer. Far from it, the very purpose of conducting aninvestigation on complaint of cognizable offence being committed,is to find material. There can be no dispute that the first respondent isthe premiere investigating agency in the country which assumedlyemploys state of the art techniques of investigation. Professionalism ofFthe highest quality, which embraces within it, uncompromisingindependence and neutrality, is expected of it. Again, the restrictionwhich underlies the impugned judgment is the limited scope of judicialreview and also the writ jurisdiction under Article 32 of the Constitution.It is clear as mountain stream that both these considerations are totallyGirrelevant for an Officer who has before him complaint making outthe commission of cognizable offence.

74. However, the directions contained in paragraph 120 of theConstitution Bench decision in Lalita Kumari(supra) must be furtherappreciated. In this case, the petitioners in Writ Petition (Criminal) No.H298 of 2018, have indeed moved an elaborate written complaint before

the first respondent-CBI. The complaint that is made, attempts to makeout the commission of cognizable offences under the Prevention ofCorruption Act. Paragraph 120.1 of Lalita Kumari(supra), declaresregistration of FIR is mandatory if information discloses commissionof cognizable offence. The Constitution Bench debarred anypreliminary inquiry in such situation. It is apposite that paragraph 120.5is noticed at this stage. This Court held that the scope of the preliminaryinquiry is not to verify the veracity or otherwise of the informationreceived but it is only to ascertain whether the information reveals anycognizable offence. Coming back to paragraph 120.2, it is laid downby this Court that if the information does not disclose cognizableoffence but indicates the necessity for an inquiry, preliminary inquirymay be conducted only to ascertain whether cognizable offence isdisclosed or not. It is beyond dispute that the offences which arementioned in the complaint filed by the petitioners in Writ Petition(Criminal) No. 298 of 2018 are cognizable offences. Again, coming backto paragraph 120.3 in Lalita Kumari(supra) read with paragraphs 120.2and 120.5, if the inquiry discloses commission of cognizable offence,the FIR must be registered. Where, however, the preliminary inquiryends in closing the complaint, the first informant must be informed inwriting forthwith and not later than week. That apart, reasons, in brief,must also be disclosed.

75. Paragraph 120.6 deals with the type of cases in whichpreliminary inquiry may be made. Corruption cases are one of thecategories of cases where preliminary inquiry may be conducted. Also,cases where there is abnormal delay or laches in initiating criminalprosecution, for example over three months delay in reporting the matterwithout satisfactorily explaining the reasons for the delay. As can benoticed from paragraph 120.6, medical negligence cases, matrimonialdisputes, commercial offences are also cases in which preliminaryinquiry may be made. In order to appreciate the scope of paragraph120.6, it is necessary to advert to paragraphs 115 to 119, which readas follows:

“Exceptions

115. Although, we, in unequivocal terms, hold that Section 154of the Code postulates the mandatory registration of FIRs onreceipt of all cognizable offences, yet, there may be instanceswhere preliminary inquiry may be required owing to the change

in genesis and novelty of crimes with the passage of time. Onesuch instance is in the case of allegations relating to medicalnegligence on the part of doctors. It will be unfair and inequitableto prosecute medical professional only on the basis of theallegations in the complaint.

116. In the context of medical negligence cases, in JacobMathew [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1:2005 SCC (Cri) 1369], it was held by this Court as under: (SCCp. 35, paras 51-52)

“51. We may not be understood as holding that doctors can neverbe prosecuted for an offence of which rashness or negligenceis an essential ingredient. All that we are doing is to emphasisethe need for care and caution in the interest of society; for, theservice which the medical profession renders to human beingsis probably the noblest of all, and hence there is need forprotecting doctors from frivolous or unjust prosecutions. Manya complainant prefer recourse to criminal process as tool forpressurising the medical professional for extracting uncalled foror unjust compensation. Such malicious proceedings have to beguarded against.

52. Statutory rules or executive instructions incorporating certainEguidelines need to be framed and issued by the Government ofIndia and/or the State Governments in consultation with theMedical Council of India. So long as it is not done, we proposeto lay down certain guidelines for the future which should governthe prosecution of doctors for offences of which criminal rashnessFor criminal negligence is an ingredient. private complaint maynot be entertained unless the complainant has produced primafacie evidence before the court in the form of credible opiniongiven by another competent doctor to support the charge ofrashness or negligence on the part of the accused doctor. Theinvestigating officer should, before proceeding against the doctorGaccused of rash or negligent act or omission, obtain anindependent and competent medical opinion preferably from adoctor in government service, qualified in that branch of medicalpractice who can normally be expected to give an impartial andunbiased opinion applying the Bolam [Bolam v. Friern HospitalManagement Committee, (1957) 1 WLR 582 : (1957) 2 All ER

118] test to the facts collected in the investigation. doctoraccused of rashness or negligence, may not be arrested in aroutine manner (simply because charge has been levelledagainst him). Unless his arrest is necessary for furthering theinvestigation or for collecting evidence or unless the investigatingofficer feels satisfied that the doctor proceeded against wouldnot make himself available to face the prosecution unless arrested,the arrest may be withheld.”

117. In the context of offences relating to corruption, this Courtin P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1SCC 595 : 1970 SCC (Cri) 240] expressed the need for apreliminary inquiry before proceeding against public servants.

118. Similarly, in Tapan Kumar Singh [CBI v. Tapan KumarSingh, (2003) 6 SCC 175 : 2003 SCC (Cri) 1305] , this Courthas validated preliminary inquiry prior to registering an FIR onlyon the ground that at the time the first information is received,the same does not disclose cognizable offence.

119. Therefore, in view of various counterclaims regardingregistration or non-registration, what is necessary is only that theinformation given to the police must disclose the commission ofa cognizable offence. In such situation, registration of an FIRis mandatory. However, if no cognizable offence is made out inthe information given, then the FIR need not be registeredimmediately and perhaps the police can conduct sort ofpreliminary verification or inquiry for the limited purpose ofascertaining as to whether cognizable offence has beencommitted. But, if the information given clearly mentions thecommission of cognizable offence, there is no other option butto register an FIR forthwith. Other considerations are not relevantat the stage of registration of FIR, such as, whether theinformation is falsely given, whether the information is genuine,whether the information is credible, etc. These are the issues thathave to be verified during the investigation of the FIR. At thestage of registration of FIR, what is to be seen is merely whetherthe information given ex facie discloses the commission of acognizable offence. If, after investigation, the information givenis found to be false, there is always an option to prosecute thecomplainant for filing false FIR.”

(Emphasis supplied)

A76. As can be noticed that medical negligence cases constitutean exception to the general rule which provides for mandatoryregistration of FIR in respect of all cognizable offences. The Court, inclear terms, held that it will be unfair and inequitable to prosecute amedical professional only on the basis of the allegations in the complaint.It relied on decision of this Court in Jacob Mathewv. State of PunjabBand another27.

77. In paragraph 117 of Lalita Kumar(Supra), this Court referredto the decision in P. Sirajuddin, Etc.v. State of Madras, Etc.28 and tookthe view that in the context of offences related to corruption in the saiddecision, the Court has expressed need for preliminary inquiry beforeCproceeding against public servants.

78. In P. Sirajuddin(supra), relied upon by the Constitution Benchin Lalita Kumari(supra), what this Court has held, and which hasapparently been relied upon by the Constitution Bench though notexpressly referred to is the following statement contained in paragraphD17:

“17. … Before public servant, whatever be his status, is publiclycharged with acts of dishonesty which amount to seriousmisdemeanour or misconduct of the type alleged in this case anda first information is lodged against him, there must be someEsuitable preliminary enquiry into the allegations by responsibleofficer.The lodging of such report against person, speciallyone who like the appellant occupied the top position in adepartment, even if baseless, would do incalculable harm not onlyto the officer in particular but to the department he belonged to,in general. …”F

(Emphasis supplied)

79. In Lalita Kumari(supra), one of the contentions which waspressed before the Court was that in certain situations, preliminaryinquiry is necessary. In this regard, attention of the Court was drawnto CBI Crime Manual. The following paragraphs of the Lalita KumariG(supra) may be noticed, which read as follows:

“89. Besides, the learned Senior Counsel relied on the specialprocedures prescribed under the CBI Manual to be read into

27 (2005) 6 SCC 1H28 (1970) 1 SCC 595

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 statute and has not beenenacted by the legislature. It is set of administrative ordersissued for internal guidance of the CBI officers. It cannotsupersede the Code. Moreover, in the absence of any indicationto the contrary in the Code itself, the provisions of the CBI CrimeManual cannot be relied upon to import the concept of holdingof preliminary inquiry in the scheme of the Code of CriminalProcedure. At this juncture, it is also pertinent to submit that CBIis constituted under special Act, namely, the Delhi Special PoliceEstablishment Act, 1946 and it derives its power to investigatefrom this Act.

90. It may be submitted that Sections 4(2) and 5 of the Codepermit special procedures to be followed for special Acts. Section4 of the Code lays down as under:

“4.Trial of offences under the Indian Penal Code and otherlaws.—(1) All offences under the Indian Penal Code (45 of 1860)shall be investigated, inquired into, tried, and otherwise dealt withaccording 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 sameprovisions, but subject to any enactment for the time being in forceregulating the manner or place of investigating, inquiring into, tryingor otherwise dealing with such offences.”

It is thus clear that for the offences under the laws other thanIPC, different provisions can be laid down under special Actto 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 absenceof specific provision to the contrary, affect any special or locallaw for the time being in force, or any special jurisdiction orpower 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 tothe powers of CBI are protected also by Section 5 of the Code.

[2019] 17 S.C.R.

A92. In view of the above specific provisions in the Code, thepowers of CBI under the DSPE Act, cannot be equated withthe powers of the regular State Police under the Code.”

80. It is thereafter that under the caption “Exceptions”, theConstitution Bench has proceeded to deal with offences relating toBcorruption as already noted and contained in paragraph 117 of LalitaKumari(supra), which has already been extracted. Chapter 8 of theCBI Crime Manual deals with complaints and source of information.Chapter 9 deals with preliminary enquiries. Clause (8.6) of Chapter 8provides for the categories of complaints which are to be consideredfit for verification. It provides, inter alia, complaints pertaining to subjectCmatters which fall within the purview of the CBI, either received fromofficial channels or from well-established and recognized organizationsor from individuals who are known and who can be traced andexamined.Undoubtedly, petitioners are known and can be traced andexamined. complaint against Minister or Former Minister of theDUnion Government is to be put up before the Director of the CBI. Thecomplaints which are registered for verification, with the approval ofthe competent authority, would only be subjected to secret verification.Clause (9.1) of Chapter 9 contemplates that when complaint isreceived, inter alia, after verification and which may after verificationEindicates serious misconduct on the part of the public servant but isnot adequate to justify registration of regular case, under the provisionsof Section 154 of the Cr.PC, preliminary inquiry may be registeredafter 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 resultFeither in registration of regular cases or departmental action inter alia.

81. The Constitution Bench in Lalita Kumari(supra), had beforeit, the CBI Crime Manual. It also considered the decision of this Courtin P. Sirajuddin(supra) which declared the necessity for preliminaryinquiry in offences relating to corruption. Therefore, the petitioners mayGnot be justified in approaching this Court seeking the relief of registrationof an FIR and investigation on the same as such. This is for the reasonthat one of the exceptions where immediate registration of FIR maynot be resorted to, would be case pointing fingers at public figureand raising the allegation of corruption. This Court also has permittedHpreliminary inquiry when there is delay, laches in initiating criminal

prosecution, for example, over three months. preliminary inquiry, it isto be noticed in paragraph 120.7, is to be completed within seven days.

82. The petitioners have not sought the relief of preliminaryinquiry being conducted. Even assuming that smaller relief than onesought could be granted, there is yet another seemingly insuperableobstacle.

83. In the year 2018, the Prevention of Corruption (Amendment)Act, 2018 (hereinafter referred to as ‘2018 Act’ for short) was broughtinto force on 26.07.2018. Thereunder, Section 17A, new Section wasinserted, which reads as follows:

“17A. (1) No police officer shall conduct any enquiry or inquiryor investigationinto any offence alleged to have been committedby public servant under this Act, where the alleged offence isrelatable to any recommendation made or decision taken by suchpublic servant in discharge of his official functions or duties,without the previous approval— (a ) in the case of person whois or was employed, at the time when the offence was allegedto have been committed, in connection with the affairs of theUnion, of that Government; (b) in the case of person who isor was employed, at the time when the offence was alleged tohave been committed, in connection with the affairs of State,of that Government; (c) in the case of any other person, of theauthority competent to remove him from his office, at the timewhen the offence was alleged to have been committed: Providedthat no such approval shall be necessary for cases involvingarrest of person on the spot on the charge of accepting orattempting to accept any undue advantage for himself or for anyother person: Provided further that the concerned authority shallconvey its decision under this section within period of threemonths, which may, for reasons to be recorded in writing by suchauthority, be extended by further period of one month..

(Emphasis supplied)

84. In terms of Section 17A, no Police Officer is permitted toconduct any enquiry or inquiry or conduct investigation into any offencedone by public servant where the offence alleged is relatable to anyrecommendation made or decision taken by the public servant indischarge of his public functions without previous approval,inter alia,

Aof the authority competent to remove the public servant from his Officeat the time when the offence was alleged to have been committed. Inrespect 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 thiscontext apposite to notice that the complaint, which has been filed byBthe petitioners in Writ Petition (Criminal) No. 298 of 2018, moved beforethe first respondent-CBI, is done after Section 17A was inserted. Thecomplaint is dated 04.10.2018. Paragraph 5 sets out the relief which issought in the complaint which is to register an FIR under variousprovisions. Paragraphs 6 and 7 of the complaint are relevant in theCcontext of Section 17A, which reads as follows:

“6.We are also aware that recently, Section 17(A) of the act hasbeen brought in by way of an amendment to introduce therequirement of prior permission of the government forinvestigation or inquiry under the Prevention of Corruption Act.D7.We are also aware that this will place you in the peculiarsituation, of having to ask the accused himself, for permission toinvestigate case against him. We realise that your hands aretied in this matter, but we request you to at least take the firststep, of seeking permission of the government under SectionE17(A) of the Prevention of Corruption Act for investigating thisoffence and under which, “the concerned authority shallconvey its decision under this section within period of threemonths, which may, for reasons to be recorded in writing bysuch authority, be extended by further period of onemonth”.”F85. Therefore, petitioners have filed the complaint fully knowingthat Section 17A constituted bar to any inquiry or enquiry orinvestigation unless there was previous approval. In fact, request ismade to at least take the first step of seeking permission under Section17A of the 2018 Act. Writ Petition (Criminal) No. 298 of 2018 wasGfiled on 24.10.2018 and the complaint is based on non-registration ofthe FIR. There is no challenge to Section 17A. Under the law, as itstood, both on the date of filing the petition and even as of today, Section17A continues to be on the Statute Book and it constitutes bar to anyinquiry or enquiry or investigation. The petitioners themselves, in theHcomplaint, request to seek approval in terms of Section 17A but when

it comes to the relief sought in the Writ Petition, there was no reliefclaimed in this behalf.

86. Even proceeding on the basis that on petitioners complaint,an FIR must be registered as it purports to disclose cognizable offencesand the Court must so direct, will it not be futile exercise having regardto Section 17A. I am, therefore, of the view that though otherwise thepetitioners in Writ Petition (Criminal) No. 298 of 2018 may have madeout case, having regard to the law actually laid down in Lalita Kumari(supra), and more importantly, Section 17A of the Prevention ofCorruption Act, in Review Petition, the petitioners cannot succeed.However, it is my viewthat the judgment sought to be reviewed, wouldnot stand in the way of the first respondent in Writ Petition (Criminal)No. 298 of 2018 from taking action on Exhibit P1-complaint inaccordance with law and subject to first respondent obtaining previousapproval under Section 17A of the Prevention of Corruption Act.

87. Subject as hereinbefore stated, in regard to the other Petitionsand Applications, I agree with the proposed Order of Brother JusticeSanjay Kishan Kaul.

Ankit Gyan

Matters disposed of.