Supreme Court of India
YASHWANT SINHA & ORS.versusCENTRAL BUREAU OF INVESTIGATION THROUGH ITS DIRECTOR & ANR.
- Citation
- 2019 INSC 1242
- Decided
- 14 November 2019
- Disposal
- Disposed off
Holding
The Court corrected paragraph 25 as prayed, but dismissed the review petitions, holding that no apparent error existed and that the Court could not order FIR registration or intervene in pricing, with the petitioners' relief barred by Lalita Kumari and Section 17A.
Summary
The Supreme Court entertained a review application filed by the Union of India seeking correction of two sentences in paragraph 25 of its 14‑December‑2018 judgment on the Rafale fighter‑jet procurement, and also considered the petitioners' claim that the Court had failed to order registration of an FIR and CBI investigation. The Court corrected the wording of paragraph 25 as requested, but held that the review petitions were without merit because the Court had already examined the merits of the three substantive issues – decision‑making process, pricing and offsets – and was not empowered to determine prices or direct investigative actions. It further ruled that the petitioners' request for FIR registration was barred by the provisions of Lalita Kumari and Section 17A of the Prevention of Corruption Act, 2018, and that no error apparent on the face of the record justified a review. The contempt petition against a political leader was closed with a caution. The review petitions were dismissed, the correction order was allowed, and the contempt proceedings were terminated.
Issues considered
- The correctness of the wording in paragraph 25 of the 14‑December‑2018 judgment.
- Whether the Supreme Court should direct registration of an FIR and CBI investigation under the petitioners' prayer.
- The scope of judicial review in matters of defence procurement pricing and offsets.
- The applicability of Lalita Kumari v. Government of Uttar Pradesh and Section 17A of the Prevention of Corruption Act, 2018 to the petitioners' relief.
- The jurisdiction and grounds for a review under Article 137 of the Constitution and Order XLVII of the Supreme Court Rules.
- The propriety of the contempt proceedings against the then President of the Indian National Congress.
Legislation cited
- Code of Criminal Procedure, 1973s. Sec.154, s. Sec.340
- Constitution of Indias. Art.137, s. Art.32
- Defence Procurement Procedure, 2013
- Prevention of Corruption Act, 1988 (as amended 2018)s. Sec.17A
- Supreme Court Rules, 2013s. Order XLVII (Review)
Subjects
review petitioncorrection of judgmentRafale fighter‑jet procurementpricing disputeCAG reportPAC scrutinyFIR registrationCBI investigationArticle 32Article 137Lalita Kumari precedentSection 17APrevention of Corruption Actcontempt of courtjudicial reviewdefence procurement procedure
Judgment
[2019] 17 S.C.R. 917 917
YASHWANT SINHA & ORS. A
v.
CENTRAL BUREAU OF INVESTIGATION
THROUGH ITS DIRECTOR & ANR.
(Review Petition (Crl.) No. 46 of 2019) B
In
(Writ Petition (Crl.) No.298 of 2018)
NOVEMBER, 14, 2019
[RANJAN GOGOI, CJI, SANJAY KISHAN KAUL C
AND K. M. JOSEPH, JJ.]
Rafale Fighter Jets Case – Judgment – Correction of
Judgment – The Union of India filed an application seeking
correction of what they claim to be an error, in two sentences in
Para 25 of the judgment delivered on 14.12.2018 – The error stated D
to be on account of a misinterpretation of some sentences in a note
handed over to Supreme Court in a sealed cover – Held (Per Sanjay
Kishan Kaul, J. for himself and Ranjan Gogoi, CJI.): The prayer
is accepted and the sentence in para 25 to the following effect –
“The pricing details have, however, been shared with the
Comptroller and Auditor General (CAG) and the report of the CAG E
has been examined by the Public Accounts Committee (PAC). Only
a redacted portion of the report was placed before the Parliament
and in public domain” should be replaced by: “ The Government
has already shared the pricing details with the CAG. The report of
the CAG is examined by the PAC in the usual course of business. F
Only a redacted version of the report is placed before the
Parliament and in Public domain”.
Rafale Fighter Jets Case – Judgment – Review of – It was
contended by the petitioner that in writ petition a prayer was made
for registration of an FIR and investigation by the CBI, which was
G
not dealt with and the contract was reviewed prematurely by the
Judiciary without the benefit of investigation and inquiry into the
disputed questions of facts – Held (Per Sanjay Kishan Kaul, J.
for himself and Ranjan Gogoi, CJI.) : Not a fair submission for
the reason that all counsels, including counsel representing the
petitioners in this matter addressed elaborate submissions on all H
917
918 SUPREME COURT REPORTS [2019] 17 S.C.R.
A the aspects – There was a prayer for registration of F.I.R and
further investigation but then once all the aspects were examined
on merits, the Supreme Court did not consider it appropriate to issue
any directions.
Rafale Fighter Jets Case – Judgment – Review of – Pricing
B of the Jets – Held (Per Sanjay Kishan Kaul, J. for himself and
Ranjan Gogoi, CJI.) : It is not the function of the Supreme Court
to determine the prices nor for that matter can such aspects be
dealt with on mere suspicion of persons who decide to approach
the Court – The internal mechanism of such pricing would take
C care of the situation – The pricing of the basic aircraft had to be
compared which was competitively marginally lower – As to what
should be loaded on the aircraft or not and what further pricing
should be added has to be left to the best judgment of the
competent authorities.
D Rafale Fighter Jets Case – Judgment – Review of – Contempt
Petition – The contempt petition emanates from an allegation
against the then President of the Indian National Congress on
account of utterances made in the presence of several media
persons that the Supreme Court was in consonance with what his
E discourse was, i.e. that the prime Minister of India stole money from
the Air Force and give it to a particular business group and Prime
Minister had indulged in corruption – Held (Sanjay Kishan Kaul,
J. for himself and Ranjan Gogoi, CJI.): The matter was
compounded by filing a 20 page affidavit with a large number of
documents annexed rather than simply accepting the mistake and
F giving an unconditional apology – However, a subsequent affidavit
was filed on 08.05.2019 with better wisdom – In view of the
subsequent affidavit, better sense having prevailed – The Contempt
Proceedings are closed with a word of caution for the contemnor
to be more careful in future.
G
Rafale Fighter Jets Case – Judgment – Review of – The
complaint is that the Supreme Court totally overlooked the relief
sought in Writ Petition (Criminal) No. 298 of 2018 – In the said
writ petition, the petitioner had sought registration of an F.I.R. and
investigation of the offences disclosed – The petitioners in the said
H case, premise their case on the judgment of the Supreme Court in
YASHWANT SINHA v. CENTRAL BUREAU OF 919
INVESTIGATION THR. ITS DIR.
Lalita Kumari v. Government of Uttar Pradesh and others – It is A
contended that error is apparent in not even considering the impact
of the Constitution Bench and requires to be redressed through the
Review Petition – Held (Per K.M. Joseph, J.(concurring)) : The
four writ petitions were heard together, the Court had proceeded
to focus on the merits of the matter itself undoubtedly from the stand B
point of the limited judicial review which it could undertake in a
matter of the nature in question – On basis of the said exercise,
the Court has concluded that there were no materials for the Court
to interfere – But this is a far cry from holding that it will not follow
the mandate of the Constitution bench of the Supreme Court in
regard to the steps to be undertaken by the officer on receipt of a C
complaint purporting to make out the commission of a cognizable
offence – The Supreme Court may declare that it was non-suiting
the petitioners seeking judicial review, having regard to the absence
of materials which would have justified holding the award of the
contract in question vulnerable – It would not mean it is either D
precluded or that it was not duty-bound to still direct that the law
laid down by the Constitution bench in Lalita Kumari be conformed
to – Also, the Constitution Bench in Lalita Kumari had considered
the necessity for preliminary inquiry in offences relating to
corruption – Therefore, the petitioners may not be justified in
approaching the Supreme Court seeking the relief of registration E
of an F.I.R. and investigation on the same as such – This for the
reason as there were allegations of corruption and the petitioner
had not sought relief of a preliminary inquiry – Furthermore, the
petitioners had filed complaint fully knowing that s. 17A of the
Prevention of Corruption (Amendment) Act, 2018 constituted a bar F
to any inquiry or enquiry or investigation unless there was previous
approval – The petitioners had requested approval u/s. 17A in the
complaint but the same relief was not sought in the writ petition –
Even proceeding on the basis that on petitioners’ complaint, an FIR
must be registered as it purports to disclose cognizable offences
G
and the Court must so direct, it will be a futile exercise having
regard to s.17A – In the instant case, the petitioners cannot succeed
in the Review petition – However, the judgment sought to be
reviewed, would not stand in the way of the first respondent-CBI
from taking action on the complaint in accordance with law and
subject to obtaining previous approval u/s. 17A of the Act, 2018. H
920 SUPREME COURT REPORTS [2019] 17 S.C.R.
A Constitution of India – Art.137 – Review – Jurisdiction in –
Held (Per K.M. Joseph, J. (concurring)): The principle well-settled
in regard to jurisdiction in review, is that a review is not an appeal
in disguise – The applicant, in a review, is, on most occasions, told
off the gates, by pointing out that his remedy lay in pursuing an
B appeal – In the case of a decision rendered by the Supreme Court,
it is to be noticed that the underpinning based on availability of
an appeal, is not available as the Supreme Court is the final Court
and no appeal lies – While a review petition has not been
understood as an appeal in disguise and a mere erroneous decision
may not justify a review, a decision which betrays an error which
C is 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 (Per
K.M. Joseph, J.(concurring)): A Review Petition is maintainable
D if the impugned judgment of the Supreme Court discloses an error
apparent 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 error
can be an error of fact or of law – Error has been described as a
palpable error or glaring omission – As to what constitutes an
E error apparent on the face of record, is a matter to be found in
context of the facts of each case.
Police – Police officer – Power of – Power of police officer
wider and different from that of writ Court – Held (Per K.M.
Joseph, J.(concurring)): In the instant case, the CBI is the premier
F investigation agency of the country – It is equipped to undertake
all forms of investigations, be it technical or otherwise – The
Supreme Court held in the writ petitions filed before this Review
Petitions, that it is neither appropriate nor with the Court’s
experience to step into what is technically feasible or not – No such
limitation applies to an investigator of a cognizable offence – What
G is important is that it is the duty of the investigating officer to collect
all material, be it technical or otherwise and thereafter, submit an
appropriate report to the Court concerned, be it a final report or
challan depending upon the materials unearthed – The Court had
relied on absence of the substantial materials – However, this is
H not the restriction on the Investigating Officer.
YASHWANT SINHA v. CENTRAL BUREAU OF 921
INVESTIGATION THR. ITS DIR.
Disposing of the matters, the Court A
HELD: Per Sanjay Kishan Kaul, J. [for himself and Ranjan
Gogoi, CJI]:
1. The sentence in para 25 of the Judgment to the
following effect - “The pricing details have, however, been shared
B
with the Comptroller and Auditor General (“CAG”), and the
report of the CAG has been examined by the Public Accounts
Committee (“PAC”). Only a redacted portion of the report was
placed before the Parliament and is in public domain” should be
replaced by : “The Government has already shared the pricing
details with the CAG. The report of the CAG is examined by C
the PAC in the usual course of business. Only a redacted version
of the report is placed before the Parliament and in public
domain.” [Para 6] [935-E]
2. The other aspect raised specifically in Review Petition
No.46/2019 is that the prayer made by the petitioner was for D
registration of an F.I.R. and investigation by the C.B.I., which
has not been dealt with and the contract has been reviewed
prematurely by the Judiciary without the benefit of investigation
and inquiry into the disputed questions of facts. [Para 15] [937-
C]
E
3. This Court does not consider this to be a fair
submission for the reason that all counsels, including counsel
representing the petitioners in this matter addressed elaborate
submissions on all the aforesaid aspects. No doubt that there
was a prayer made for registration of F.I.R. and further
F
investigation but then once this Court had examined all the
aspects on merits this Court did not consider it appropriate to
issue any directions, as prayed for by the petitioners which
automatically covered the direction for registration of FIR,
prayed for. [Para 16] [937-D-E]
4. Insofar as the aspect of pricing is concerned, the Court G
satisfied itself with the material made available. It is not the
function of this Court to determine the prices nor for that matter
can such aspects be dealt with on mere suspicion of persons who
decide to approach the Court. The internal mechanism of such
H
922 SUPREME COURT REPORTS [2019] 17 S.C.R.
A pricing would take care of the situation. On the perusal of
documents this Court had found that one cannot compare apples
and oranges. Thus, the pricing of the basic aircraft had to be
compared which was competitively marginally lower. As to what
should be loaded on the aircraft or not and what further pricing
should be added has to be left to the best judgment of the
B
competent authorities. [Para 17] [937-F-G]
5. It was the petitioners’ decision to have invoked the
jurisdiction of this Court under Article 32 of the Constitution of
India fully conscious of the limitation of the contours of the
scrutiny and not to take recourse to other remedies as may be
C
available. The petitioners cannot be permitted to state that
having so taken recourse to this remedy, they want an
adjudication process which is really different from what is
envisaged under the provisions invoked by them. [Para 19] [938-
A-B]
D 6. Insofar as the decision making process is concerned,
on the basis of certain documents obtained, the petitioners
sought to contend that there was contradictory material. This
Court, however, found that there were undoubtedly opinions
expressed in the course of the decision making process, which
E may be different from the decision taken, but then any decision
making process envisages debates and expert opinion and the
final call is with the competent authority, which so exercised it.
In this context reference was made to (a) Acceptance of
Necessity (‘AON’) granted by the Defence Acquisition Council
(‘DAC’) not being available prior to the contract which would
F
have determined the necessity and quantity of aircrafts; (b)
absence of Sovereign Guarantee granted by France despite
requirement of the Defence Procurement Procedure (‘DPP’); (c)
the oversight of objections of three expert members of the Indian
Negotiating Team (‘INT’) regarding certain increase in the
G benchmark price; and (d) the induction of Reliance Aerostructure
Limited (‘RAL’) as an offset partner. [Para 20] [938-C-E]
7. It is for the aforesaid reasons also that this Court finds
that there was no ground made out for initiating prosecution
under Section 340 Cr.P.C. This Court is thus, of the view that
H the review petitions are without any merit and are accordingly
YASHWANT SINHA v. CENTRAL BUREAU OF 923
INVESTIGATION THR. ITS DIR.
dismissed, once again, re-emphasising that our original decision A
was based within the contours of Article 32 of the Constitution
of India. [Paras 24-25] [939-C-D]
8. The matter of Contempt petition was compounded by
filing a 20 page affidavit with a large number of documents
annexed rather than simply accepting the mistake and giving an B
unconditional apology. Better wisdom dawned on the counsel only
during the course of arguments thereafter when a subsequent
affidavit dated 8.5.2019 was filed. This Court does believe that
persons holding such important positions in the political
spectrum must be more careful. As to what should be his C
campaign line is for a political person to consider. However, this
Court or for that matter no court should be dragged into this
political discourse valid or invalid, while attributing aspects to
the Court which had never been held by the Court. Certainly
contemnor, the then president of the Indian National Congress,
needs to be more careful in future. [Para 32] [940-H; 941-A-B] D
9. However, in view of the subsequent affidavit, better
sense having prevailed, this Court would not like to continue
these proceedings further and, thus, close the contempt
proceedings with a word of caution for the contemnor to be more
careful in future. [Para 33] [941-C] E
Per K. M. Joseph, J.(concurring):
CONTOURS OF REVIEW JURISDICTION
10. On a conspectus of the various Supreme Court above
decisions, the following conclusions appeared to be inevitable F
and they also provide the premise for review:
Justice above all. While a review petition has not been
understood as an appeal in disguise and a mere erroneous
decision may not justify a review, a decision which betrays an
error which is apparent, does entitle the court to exercise its G
jurisdiction under Article 137 of the Constitution. The founding
fathers were conscious that this Court was the final Court.
There are two values, which in any system of law, may collide.
On the one hand, recognizing that men are not infallible and the
courts are manned by men, who are prone to err, there must be H
924 SUPREME COURT REPORTS [2019] 17 S.C.R.
A a safety valve to check the possibility of grave injustice being
reached to a litigant, consequent upon an error, which is palpable
or as a result of relevant material despite due diligence by a
litigant not being made available or other sufficient reason. The
other value which is ever-present in the mind of the law giver,
B is, there must be finality to litigation. Be it judgments of a final
court, if it becomes vulnerable to indiscriminate reopening,
unless a strong ground exists, which itself is based on manifest
error disclosed by the judgment or the other two grounds
mentioned in Order XLVII of the CPC in a civil matter, it would
spawn considerable inequity. [Para 40] [962-F-G; 963-A-B]
C
11. It must be noticed that the principle well-settled in
regard to jurisdiction in review, is that a review is not an appeal
in disguise. The applicant, in a review, is, on most occasions,
told off the gates, by pointing out that his remedy lay in pursuing
an appeal. In the case of a decision rendered by this Court, it is
D to be noticed that the underpinning based on availability of an
appeal, is not available as this Court is the final Court and no
appeal lies. [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 the
E
Judge holding Court in Chambers and appeals, indeed, are
provided in respect of certain orders passed by the Registrar.
[Para 42] [963-D]
13. The fact that no appeal lies from the judgment of this
Court may not, however, result in the jurisdiction of this Court
F
under Article 137 of the Constitution being enlarged. However,
when the Court is invited to exercise its power of review, this
aspect may also be borne in mind, viz., that unlike the other
courts from which an appeal may be provided either under the
Constitution or other laws, or by special leave under Article 136
G of the Constitution, no appeal lies from the judgment of this
Court, and it is in that sense, the final Court. The underlying
assumption for the principle that a review is not an appeal in
disguise, being that the decision is appealable, is really not
available in regard to a decision rendered by this Court, is all
H that is being pointed out. [Para 43] [963-E-F]
YASHWANT SINHA v. CENTRAL BUREAU OF 925
INVESTIGATION THR. ITS DIR.
14. A review petition is maintainable if the impugned A
judgment discloses an error apparent on the face of the record.
Unlike a proceeding in Certiorari jurisdiction, wherein the error
must not only be apparent on the face of the record, it must be
an error of law, which must be apparent on the face of the record,
for granting review under Article 137 of the Constitution read
B
with Order XLVII Rule 1 of the CPC, the error can be an error
of fact or of law. No doubt, it must be apparent on the face of
record. Such an error has been described as a palpable error or
glaring omission. As to what constitutes an error apparent on
the face of record, is a matter to be found in context of the facts
of each case. [Para 44] [963-G-H; 964-A-B] C
15. The view of this Court, in the decision in Girdhari Lal
Gupta as also in Deo Narain Singh, has been noticed to be that
if the relevant law is ignored or an inapplicable law forms the
foundation for the judgement, it would provide a ground for
review. If a court is oblivious to the relevant statutory D
provisions, the judgment would, in fact, be per incuriam. No
doubt, the concept of per incuriam is apposite in the context of
its value as the precedent but as between the parties, certainly
it would be open to urge that a judgment rendered, in ignorance
of the applicable law, must be reviewed. The judgment, in such
a case, becomes open to review as it would betray a clear error E
in the decision. [Para 45] [964-G; 965-A-B]
16. As regards fresh material forming basis for review, it
must be of such nature that it is relevant and it undermines the
verdict. This is apart from the requirement that it could not be
produced despite due diligence. [Para 46] [965-B-C] F
17. In this case, the short point, which this Court is called
upon to consider, is the effect of the impugned judgment not
dealing with a binding decision rendered by a Constitution Bench
which was relied upon by the petitioners in Writ Petition
(Criminal) No. 298 of 2018 and rendered in Lalita Kumari. [Para G
48] [965-F-G]
18. To test the hypothesis that on the facts this Court was
wrong and manifestly so in declining in not following the dicta
of the Constitution Bench in Lalita Kumari, a reverse process
of reasoning can be employed to appreciate the matter further. H
926 SUPREME COURT REPORTS [2019] 17 S.C.R.
A Can it be said that refusing to follow a Constitution Bench, laying
down the response of the Officers to a complaint alleging the
commission of a cognizable offence, has not been observed in
its breach? If the review petition, in other words, is rejected, in
substance this Court would be upholding its judgment which
when placed side-by-side with the pronouncement of the
B
Constitution Bench in Lalita Kumari, the two judgments cannot
be squared. It must co-exist despite the patent departure, the
impugned judgment manifests from the law laid down by the
Constitution Bench. But that being impossible, the Constitution
Bench must prevail and the impugned judgment stand
C overwhelmed to the extent it is inconsistent. It may be true that
in view of the fact that four writ petitions were heard together,
this Court has proceeded to focus on the merits of the matters
itself undoubtedly from the standpoint of the limited judicial
review which it could undertake in a matter of the nature in
question. On the basis of the said exercise, the Court has
D
concluded that there were no materials for the Court to interfere.
But this is a far cry from holding that it will not follow the
mandate of the Constitution Bench of this Court in regard to
the steps to be undertaken by the Officer on receipt of a
complaint purporting to make out the commission of a cognizable
E offence. This Court may declare that it was non-suiting the
petitioners seeking judicial review, having regard to the absence
of materials which would have justified holding the award of the
contract in question vulnerable. It would not mean that it is either
precluded or that it was not duty- bound to still direct that the
law laid down by the Constitution Bench in Lalita Kumari be
F
conformed to. [Para 61] [970-G-H; 971-A-D]
19. If the complaint of the petitioner does make out the
commission of the cognizable offence and FIR is to be registered
and matter investigated, it will be no answer to suggest that this
Court, has approved of the matter in judicial review proceedings
G
under Article 32 of the Constitution and making it clear that
entire exercise must be viewed from the prism of the limited
judicial review the Court undertakes in such proceedings and
this Court would end up paying less than lip service to the law
laid down by the Constitution Bench in Lalita Kumari. [Para 62]
H [971-E-F]
YASHWANT SINHA v. CENTRAL BUREAU OF 927
INVESTIGATION THR. ITS DIR.
20. As far as the judicial review of the award of the contract A
is concerned, apart from the fact that a review does not permit
reappreciation of the materials, there is the aspect of the
petitioner seeking judicial review approaching the court late in
the day. There is also the aspect relating to the court’s
jurisdiction not extending to permit it to sit in judgment over
B
the wisdom of the Government of the day, particularly in matters
relating to purchase of the goods involved in this case.
Therefore, in regard to review, sought in relation to the findings
relating to the judicial review, they cannot be found to be
suffering from palpable errors. [Para 63] [971-G-H]
21. As noticed earlier, it is one thing to say that with the C
limited judicial review, available to the Court, it did not find merit
in the case of the petitioners regarding failure to follow the DPP,
presence of over-pricing, violation of Offset Guidelines to favour
a party, and another thing to direct action on a complaint in terms
of the law laid down by this Court. It is obvious that this Court D
was not satisfied with the material which was placed to justify a
decision in favour of the petitioners. It is also apparent that the
Court has reminded itself of the fact that it was neither
appropriate nor within the experience of the Court to step into
the arena. It is equally indisputable that the entire findings are
to be viewed from the standpoint of the nature of the jurisdiction E
it exercised. There are no such restrictions and limitations on
an Officer investigating a case under the law. Present a case,
making out the commission of cognizable offence, starting with
the lodging of the FIR after, no doubt, making a preliminary
inquiry where it is necessary, the fullest of amplitude of powers F
under the law, no doubt, are available to the Officer. The
discovery of facts by Officer carrying out an investigation, is
completely different from findings of facts given in judicial review
by a Court. The entire proceedings are completely different.
[Para 67] [972-H; 973-A-D]
G
22. From the standpoint of the jurisdiction in judicial
review proceedings and under Article 32 of the Constitution, as
also absence of any substantial material to show to be a case of
commercial favouritism, it may be true that the findings other
than which has been referred to may not disclose a palpable
error. This Court’s lack of experience of what is technically H
928 SUPREME COURT REPORTS [2019] 17 S.C.R.
A feasible, as noted by the Court, has weighed with it. [Para 70]
[975-B]
POWERS OF POLICE OFFICER WIDER AND
DIFFERENT FROM THAT OF WRIT COURT
23. The Police Officer is endowed with wide powers.
B Nothing that constricted or limited this Court in the impugned
judgment, applies to an Off icer who has undertaken an
investigation into the commission of a cognizable offence. In fact,
in this case, the first respondent-CBI is the premiere
investigation agency of the country. It is equipped to undertake
C all forms of investigations, be it technical or otherwise. The
factors which concerned this Court can be recapitulated to bring
out the true role of an Investigator. This Court held, it is neither
appropriate nor within the Court’s experience to step into what
is technical feasible or not. No such limitation applies to an
Investigator of a cognizable offence. What is important is that it
D
is the duty of the Investigating Officer to collect all material, be
it technical or otherwise, and thereafter, submit an appropriate
report to the court concerned, be it a final report or challan
depending upon the materials unearthed. This Court relied on
absence of substantial material. This is not a restriction on the
E Investigating Officer. Far from it, the very purpose of conducting
an investigation on a complaint of a cognizable offence being
committed, is to find material. There can be no dispute that the
first respondent is the premiere investigating agency in the
country which assumedly employs state of the art techniques of
investigation. Professionalism of the highest quality, which
F
embraces within it, uncompromising independence and
neutrality, is expected of it. Again, the restriction which underlies
the impugned judgment is the limited scope of judicial review
and also the writ jurisdiction under Article 32 of the Constitution.
It is clear as a mountain stream that both these considerations
G are totally irrelevant for an Officer who has before him a
complaint making out the commission of a cognizable offence.
[Paras 71 and 73] [975-C; 976-C-G]
24. In paragraph 117 of Lalita Kumar, this Court referred
to the decision in P. Sirajuddin, Etc. v. State of Madras, Etc. and
H took the view that in the context of offences related to corruption
YASHWANT SINHA v. CENTRAL BUREAU OF 929
INVESTIGATION THR. ITS DIR.
in the said decision, the Court has expressed a need for a A
preliminary 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 offences
relating to corruption as already noted and contained in paragraph B
117 of Lalita Kumari, which has already been extracted. Chapter
8 of the CBI Crime Manual deals with complaints and source
of information. Chapter 9 deals with preliminary enquiries.
Clause (8.6) of Chapter 8 provides for the categories of
complaints which are to be considered fit for verification. It
provides, inter alia, complaints pertaining to subject matters C
which fall within the purview of the CBI, either received from
official channels or from well-established and recognized
organizations or from individuals who are known and who can
be traced and examined. Undoubtedly, petitioners are known and
can be traced and examined. A complaint against a Minister or D
a Former Minister of the Union Government is to be put up
before the Director of the CBI. The complaints which are
registered for verification, with the approval of the competent
authority, would only be subjected to secret verification. Clause
(9.1) of Chapter 9 contemplates that when a complaint is
received, inter alia, after verification and which may after E
verification indicates serious misconduct on the part of the public
servant but is not adequate to justify registration of a regular
case, under the provisions of Section 154 of the Cr.PC, a
preliminary inquiry may be registered after obtaining approval
of the competent authority. Clause (9.1) also, no doubt, deals F
with cases entrusted by this Court and the High Courts. The
Manual further contemplates that the preliminary inquiry will
result either in registration of regular cases or departmental
action inter alia. [Para 80] [982-B-F]
26. The Constitution Bench in Lalita Kumari, had before
G
it, the CBI Crime Manual. It also considered the decision of this
Court in P. Sirajuddin which declared the necessity for
preliminary inquiry in offences relating to corruption. Therefore,
the petitioners may not be justified in approaching this Court
seeking the relief of registration of an FIR and investigation on
the same as such. This is for the reason that one of the H
930 SUPREME COURT REPORTS [2019] 17 S.C.R.
A exceptions where immediate registration of FIR may not be
resorted to, would be a case pointing fingers at a public figure
and raising the allegation of corruption. This Court also has
permitted preliminary inquiry when there is delay, laches in
initiating criminal prosecution, for example, over three months.
A preliminary inquiry, it is to be noticed in paragraph 120.7, is
B
to be completed within seven days. [Para 81] [982-G-H; 983-A]
27. The petitioners have not sought the relief of a
preliminary inquiry being conducted. Even assuming that a
smaller relief than one sought could be granted, there is yet
another seemingly insuperable obstacle. [Para 82] [983-A-B]
C
28. In terms of Section 17A of the Prevention of the
Corruption (Amendment) Act, 2018, no Police Officer is
permitted to conduct any enquiry or inquiry or conduct
investigation into any offence done by a public servant where
the offence alleged is relatable to any recommendation made or
D decision taken by the public servant in discharge of his public
functions without previous approval, inter alia, of the authority
competent to remove the public servant from his Office at the
time when the offence was alleged to have been committed. In
respect of the public servant, who is involved in this case, it is
clause (c), which is applicable. Unless, therefore, there is
E
previous approval, there could be neither inquiry or enquiry or
investigation. [Para 84] [983-G-H; 984-A-B]
29. Therefore, petitioners have filed the complaint fully
knowing that Section 17A constituted a bar to any inquiry or
enquiry or investigation unless there was previous approval. In
F fact, a request is made to at least take the first step of seeking
permission under Section 17A of the 2018 Act. Writ Petition
(Criminal) No. 298 of 2018 was filed on 24.10.2018 and the
complaint is based on non-registration of the FIR. There is no
challenge to Section 17A. Under the law, as it stood, both on
G the date of filing the petition and even as of today, Section 17A
continues to be on the Statute Book and it constitutes a bar to
any inquiry or enquiry or investigation. The petitioners
themselves, in the complaint, request to seek approval in terms
of Section 17A but when it comes to the relief sought in the Writ
Petition, there was no relief claimed in this behalf. [Para 85] [984-
H F-H; 985-A]
YASHWANT SINHA v. CENTRAL BUREAU OF 931
INVESTIGATION THR. ITS DIR.
30. Even proceeding on the basis that on petitioners A
complaint, an FIR must be registered as it purports to disclose
cognizable offences and the Court must so direct, will it not be
a futile exercise having regard to Section 17A. Therefore,
though otherwise the petitioners in Writ Petition (Criminal) No.
298 of 2018 may have made out a case, having regard to the B
law actually laid down in Lalita Kumari, and more importantly,
Section 17A of the Prevention of Corruption Act, in a Review
Petition, the petitioners cannot succeed. However, the judgment
that is sought to be reviewed, would not stand in the way of the
first respondent-CBI in Writ Petition (Criminal) No. 298 of 2018
C
from taking action on Exhibit P1-complaint in accordance with
law and subject to first respondent obtaining previous approval
under Section 17A of the Prevention of Corruption Act. [Para
86] [985-B-C]
Per K. M. Joseph, J.:
D
Lalita Kumari v. Government of Uttar Pradesh and
others (2014) 2 SCC 1 : [2013] 14 SCR 713 ; P.N.
Eswara Iyer And Others v. Registrar, Supreme Court
of India (1980) 4 SCC 680 : [1980] 2 SCR 889 ;
Haridas Das v. Usha Rani Banik (Smt.) and others
E
(2006) 4 SCC 78 : [2006] 3 SCR 87 ; Jain Studios
Ltd. 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 West
Bengal and others v. Kamal Sengupta and another F
(2008) 8 SCC 612 : [2008] 10 SCR 4 ; Moran Mar
Basselios Catholicos and another v. Most Rev. Mar
Poulose Athanasius and others AIR 1954 SC 526 :
[1955] SCR 520 ; Girdhari Lal Gupta v. D.N. Mehta
and another AIR 1971 SC 2162 : [1971] 3 SCR
G
748 ; Sow Chandra Kante and another v. Sheikh Habib
(1975) 1 SCC 674 ; Aribam Tuleshwar Sharma
v. Aribam Pishak Sharma and others (1979) 4 SCC
389 ; M/s. Northern India Caterers (India) Ltd. v. Lt.
Governor of Delhi (1980) 2 SCC 167 : [1980] 2 SCR
650 ; S. Nagaraj and others v. State of Karnataka and H
932 SUPREME COURT REPORTS [2019] 17 S.C.R.
A 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 Kamath
v. Ahmad Ishaque and Others AIR 1955 SC 233 :
[1955] SCR 1104 ; M.C. Abraham and another v. State
of Maharashtra and others (2003) 2 SCC 649 :
B
[2002] 5 Suppl. SCR 677 – relied on.
Mukesh v. State (NCT of Delhi) (2018) 8 SCC 149 :
[2018] 7 SCR 898 ; Suthendraraja Alias Suthenthira
Raja Alias Santhan and others v. State Through DSP/
CBI, SIT, Chennai (1999) 9 SCC 323 : [1999] 3 Suppl.
C SCR 540 ; Deo Narain Singh v. Daddan Singh and
others (1986) Suppl. SCC 530 ; Lily Thomas and
others v. Union of India and others (2000) 6 SCC 224
: [2000] 3 SCR 1081 ; Haryana State Industrial
Development Corporation Limited. v. Mawasi and
D others (2012) 7 SCC 200 : [2012] 6 SCR 237 ; Usha
Bharti v. State of Uttar Pradesh and others (2014) 7
SCC 663 : [2014] 4 SCR 1076 ; Vikram Singh Alias
Vicky Walia and another v. State of Punjab and
another (2017) 8 SCC 518 : [2017] 8 SCR 177 ; Rupa
Ashok Hurra v. Ashok Hurra and another (2002) 4
E SCC 388 : [2002] 2 SCR 1006 ; Satyanarayan
Laxminarayan Hegde and others v. Mallikarjun
Bhavanappa Tirumale AIR 1960 SC 137 : [1960] SCR
890 ; Jacob Mathew v. State of Punjab and another
(2005) 6 SCC 1 : [2005] 2 Suppl. SCR 307 ; P.
F Sirajuddin, Etc. v. State of Madras, Etc. (1970) 1 SCC
595 : [1970] 3 SCR 931 – referred to.
Thadikulangara Pylee’s son Pathrose v. Ayyazhiveettil
Lakshmi Amma’s son Kuttan and others AIR 1969 KER
186 ; King-Emperor v. Nazir Ahmad Khwaja AIR 1945
G PC 18 – referred to.
Case Law Reference
[2013] 14 SCR 713 relied on Para 13
[2018] 7 SCR 898 referred to Para 14
H [1980] 2 SCR 889 relied on Para 21
YASHWANT SINHA v. CENTRAL BUREAU OF 933
INVESTIGATION THR. ITS DIR.
[1999] 3 Suppl. SCR 540 referred to Para 22 A
[2006] 3 SCR 87 relied on Para 23
[2006] 3 Suppl. SCR 409 relied on Para 24
[2006] 1 SCR 933 relied on Para 24
[2008] 10 SCR 4 relied on Para 25 B
[1955] SCR 520 relied on Para 26
[1971] 3 SCR 748 relied on Para 28
(1986) Supp SCC 530 referred to Para 29
C
(1975) 1 SCC 674 relied on Para 30
(1979) 4 SCC 389 relied on Para 31
[1980] 2 SCR 650 relied on Para 32
[1993] 2 Suppl. SCR 1 relied on Para 34
D
[2000] 3 SCR 1081 referred to Para 35
[2012] 6 SCR 237 referred to Para 35
[2013] 11 SCR 25 relied on Para 35
[2014] 4 SCR 1076 referred to Para 35 E
[2017] 8 SCR 177 referred to Para 35
[2002] 2 SCR 1006 referred to Para 38
[1960] SCR 890 referred to Para 39
[1955] SCR 1104 relied on Para 44 F
AIR 1945 PC 18 referred to Para 71
[2002] 5 Suppl. SCR 677 relied on Para 72
[2005] 2 Suppl. SCR 307 referred to Para 76
G
[1970] 3 SCR 931 referred to Para 77
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. H
934 SUPREME COURT REPORTS [2019] 17 S.C.R.
A With
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
B Review Petition (Civil) No. 719/2019 in Writ Petition (Civil) No.
1205/2018
Contempt 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,
C Ms. Srishti Banerjee, Kapish Seth, Ms. Disha Chaudhary, Dr. Ashutosh
Garg, Ms. Ruchi Kohli, Dheeraj Kumar Singh, Devender Kumar
Dhiryan, Mrinal Kumar, Alok Shukla, Ms. Suman, Arvind Kumar
Sharma, Advs. for the Petitioners.
K.K. Venugopal, AG, Tushar Mehta, SG, R. Balasubramanian,
Dr. Abhishek Manu Singhvi, Prashanto Chandra Sen, Sr. Advs.,
D Ms. Shraddha Deshmukh, Arvind Kumar Sharma, Sunil Fernandes,
Avishkar Singhvi, Ms. Priyansha Indra Sharma, Varun K. Chopra, Nikhil
Bhalla, Ms. Madhavi Khanna, Udayan Verma, Muhammad Ali Khan,
Ranjit Kumar Sharma, Debasis Misra, Binay Kumar Jha, Ms. Alpana
Sharma, Vishaal S. Jogdand, Advs. for the Respondents.
E Prashant 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 FILING
F
O.T. and I.A. No. 66253/2019 – EXEMPTION FROM
FILING O.T.)
1. Allowed subject to just exception.
MA 58/2019 in W.P.(Crl.) No. 225/2018 (PIL-W) (I.A. No.
182576/2018 – CORRECTION OF MISTAKES IN THE
G JUDGMENT)
2. The Union of India has filed the present application seeking
correction of what they claim to be an error, in two sentences in para
25 of the judgment delivered by this Court on 14.12.2018. This error is
stated to be on account of a misinterpretation of some sentences in a
H note handed over to this Court in a sealed cover.
YASHWANT SINHA v. CENTRAL BUREAU OF 935
INVESTIGATION THR. ITS DIR. [SANJAY KISHAN KAUL, J.]
3. The Court had asked vide order dated 31.10.2018 to be A
apprised of the details/cost as also any advantage, which may have
accrued on that account, in the procurement of the 36 Rafale fighter
jets. The confidential note in the relevant portions stated as under:
“The Government has already shared the pricing details with the
CAG. The report of the CAG is examined by the PAC. Only B
a redacted version of the report is placed before the Parliament
and in public domain.”
4. It is the submission of the learned Attorney General that the
first sentence referred to the sharing of the price details with the CAG.
But the second sentence qua the PAC referred to the process and not C
what had already transpired. However, in the judgment this portion
had been understood as if it was already so done.
5. On hearing learned counsel for the parties, we are of the view
that the confusion arose on account of two portions of the paragraph
referring to both what had been and what was proposed to be done. D
Regardless, what we noted was to complete the sequence of facts and
was not the rationale for our conclusion.
6. We are, thus, inclined to accept the prayer and the sentence
in para 25 to the following effect - “The pricing details have, however,
been shared with the Comptroller and Auditor General (hereinafter E
referred to as “CAG”), and the report of the CAG has been examined
by the Public Accounts Committee (hereafter referred to as “PAC”).
Only a redacted portion of the report was placed before the Parliament
and is in public domain” should be replaced by what we have set out
hereinafter:
F
“The Government has already shared the pricing details with the
CAG. The report of the CAG is examined by the PAC in the
usual course of business. Only a redacted version of the report
is placed before the Parliament and in public domain.”
7. The prayer is accordingly allowed. G
8. The application stands disposed of.
R.P. (Crl.) No.46/2019 in WP (Crl.) No.298/2018
R.P.(Crl.) No. 122/2019 in W.P.(Crl.) No. 297/2018 (PIL-
W) H
936 SUPREME COURT REPORTS [2019] 17 S.C.R.
A MA 403/2019 in W.P.(Crl.) No. 298/2018 (PIL-W)
(I.A. No. 29248/2019 – INITIATING CRIMINAL
PROCEEDINGS U/S 340 OF CRPC)
R.P.(C) No. 719/2019 in W.P.(C) No. 1205/2018 (PIL-W)
B 9. The review petitions were listed for hearing in Court and
elaborate submissions were made by learned counsel for the parties.
10. We may note that insofar as the preliminary objection raised
by the Attorney General is concerned qua certain documents sought to
be produced by the petitioners, that aspect was dealt with by our order
C dated 10.4.2019 and the said preliminary objection was overruled.
11. We cannot lose sight of the fact that unless there is an error
apparent on the face of the record, these review applications are not
required to be entertained. We may also note that the application under
Section 340 of the Code of Criminal Procedure, 1973 partly emanates
D from an aspect which has been dealt with in our order passed today
on the application for correction of the order filed by the Union of India.
12. We have elaborately dealt with the pleas of the learned
counsel for the parties in our order dated 14.12.2018 under the heads
of ‘Decision Making Process’, ‘Pricing’ and ‘Offsets’. However,
E before proceeding to deal with these aspects we had set out the
contours of the scrutiny in matters of such a nature. It is in that context
we had opined that the extent of permissible judicial review in matters
of contract, procurement, etc. would vary with the subject matter of
the contract and that there cannot be a uniform standard of depth of
judicial review which could be understood as an across the board
F
principle to apply to all cases of award of work or procurement of goods/
material. In fact, when two of these writ petitions were listed before
the Court on 10.10.2018, we had embarked on a limited enquiry despite
the fact that we were not satisfied with the adequacy of the averments
and the material in the writ petitions. It was the object of the Court to
G satisfy itself with the correctness of the decision making process.
13. We cannot lose sight of the fact that we are dealing with a
contract for aircrafts, which was pending before different Governments
for quite some time and the necessity for those aircrafts has never been
in dispute. We had, thus, concluded in para 34 noticing that other than
H the aforesaid three aspects, that too to a limited extent, this Court did
YASHWANT SINHA v. CENTRAL BUREAU OF 937
INVESTIGATION THR. ITS DIR. [SANJAY KISHAN KAUL, J.]
not consider it appropriate to embark on a roving and fishing enquiry. A
We were, however, cautious to note that this was in the context of the
writ petition filed under Article 32 of the Constitution of India, the
jurisdiction invoked.
14. In the course of the review petitions, it was canvased before
us that reliance had been placed by the Government on patently false B
documents. One of the aspects is the same as has been dealt with by
our order passed today on the application for correction and, thus, does
not call for any further discussion.
15. The other aspect sought to be raised specifically in Review
Petition No.46/2019 is that the prayer made by the petitioner was for C
registration of an F.I.R. and investigation by the C.B.I., which has not
been dealt with and the contract has been reviewed prematurely by
the Judiciary without the benefit of investigation and inquiry into the
disputed questions of facts.
16. We do not consider this to be a fair submission for the reason
D
that all counsels, including counsel representing the petitioners in this
matter addressed elaborate submissions on all the aforesaid three
aspects. No doubt that there was a prayer made for registration of F.I.R.
and further investigation but then once we had examined the three
aspects on merits we did not consider it appropriate to issue any
directions, as prayed for by the petitioners which automatically covered E
the direction for registration of FIR, prayed for.
17. Insofar as the aspect of pricing is concerned, the Court
satisfied itself with the material made available. It is not the function
of this Court to determine the prices nor for that matter can such
aspects be dealt with on mere suspicion of persons who decide to F
approach the Court. The internal mechanism of such pricing would take
care of the situation. On the perusal of documents we had found that
one cannot compare apples and oranges. Thus, the pricing of the basic
aircraft had to be compared which was competitively marginally lower.
As to what should be loaded on the aircraft or not and what further
pricing should be added has to be left to the best judgment of the G
competent authorities.
18. We have noted aforesaid that a plea was also raised about
the “non-existent CAG report” but then at the cost of repetition we
state that this formed part of the order for correction we have passed
aforesaid. H
938 SUPREME COURT REPORTS [2019] 17 S.C.R.
A 19. It was the petitioners’ decision to have invoked the jurisdiction
of this Court under Article 32 of the Constitution of India fully conscious
of the limitation of the contours of the scrutiny and not to take recourse
to other remedies as may be available. The petitioners cannot be
permitted to state that having so taken recourse to this remedy, they
want an adjudication process which is really different from what is
B
envisaged under the provisions invoked by them.
20. Insofar as the decision making process is concerned, on the
basis of certain documents obtained, the petitioners sought to contend
that there was contradictory material. We, however, found that there
were undoubtedly opinions expressed in the course of the decision
C making process, which may be different from the decision taken, but
then any decision making process envisages debates and expert opinion
and the final call is with the competent authority, which so exercised
it. In this context reference was made to (a) Acceptance of Necessity
(‘AON’) granted by the Defence Acquisition Council (‘DAC’) not
D being available prior to the contract which would have determined the
necessity and quantity of aircrafts; (b) absence of Sovereign Guarantee
granted by France despite requirement of the Defence Procurement
Procedure (‘DPP’); (c) the oversight of objections of three expert
members of the Indian Negotiating Team (‘INT’) regarding certain
increase in the benchmark price; and (d) the induction of Reliance
E Aerostructure Limited (‘RAL’) as an offset partner.
21. It does appear that the endeavour of the petitioners is to
construe themselves as an appellate authority to determine each aspect
of the contract and call upon the Court to do the same. We do not
believe this to be the jurisdiction to be exercised. All aspects were
F considered by the competent authority and the different views
expressed considered and dealt with. It would well nigh become
impossible for different opinions to be set out in the record if each
opinion was to be construed as to be complied with before the contract
was entered into. It would defeat the very purpose of debate in the
G decision making process.
22. Insofar as the aforesaid pleas are concerned, it has also been
contended that some aspects were not available to the petitioner at the
time of the decision and had come to light subsequently by their
“sourcing” information. We decline to, once again, embark on an
H elaborate exercise of analyzing each clause, perusing what may be the
YASHWANT SINHA v. CENTRAL BUREAU OF 939
INVESTIGATION THR. ITS DIR. [SANJAY KISHAN KAUL, J.]
different opinions, then taking a call whether a final decision should or A
should not have been taken in such technical matters.
23. An aspect also sought to be emphasized was that this Court
had misconstrued that all the Reliance Industries were of one group
since the two brothers held two different groups and the earlier
arrangement was with the Company of the other brother. That may be B
so, but in our observation this aspect was referred to in a generic sense
more so as the decision of whom to engage as the offset partner was
a matter left to the suppliers and we do not think that much can be
made out of it.
24. It is for the aforesaid reasons also that we find that there C
was no ground made out for initiating prosecution under Section 340
Cr.P.C.
25. We are, thus, of the view that the review petitions are without
any merit and are accordingly dismissed, once again, re-emphasising
that our original decision was based within the contours of Article 32 D
of the Constitution of India.
CONMT.PET.(Crl.) No. 3/2019 in R.P.(Crl.) No. 46/2019
in W.P.(Crl.) No. 298/2018 (PIL-W)
26. The contempt petition emanates from an allegation against
Mr. Rahul Gandhi, the then President of the Indian National Congress, E
on account of utterances made in the presence of several media persons
on 10.4.2019 by him alleging that the Supreme Court had held that
“Chowkidar (Mr. Narendra Modi, Prime Minister) is a thief.” The
Supreme Court was also attributed to having held in consonance with
what his discourse was, i.e., that the Prime Minister of India stole money F
from the Air Force and gave it to Mr. Anil Ambani and that the Supreme
Court had admitted that Mr. Modi had indulged in corruption. It was
stated that the Supreme Court had said that the Chowkidar is a thief.
27. On notice being issued, reply affidavit dated 22.4.2019 was
filed averring that the comments were made on the basis of a bona
G
fide belief and general understanding of the order even though the
contemnor had not himself had the opportunity to see, read or analyse
the order at that stage. It was further averred that there had not been
the slightest intention to insinuate anything regarding the Supreme Court
proceedings in any manner as the statements had been made by the
contemnor in a “rhetorical flourish in the heat of the moment” and that H
940 SUPREME COURT REPORTS [2019] 17 S.C.R.
A his statement has been used and misused by his political opponents to
project that he had deliberately attributed the utterances to the Supreme
Court. In that context, it was averred that “nothing could be farther
from my mind. It is also clear that no Court would ever do that and
hence the unfortunate references (for which I express regret) to the
Court order and to the political slogan in juxtaposition the same breath
B
in the heat of political campaigning ought not to be construed as
suggesting that the Court had given any finding or conclusion on that
issue.”
28. The acceptance of such an affidavit was opposed by the
petitioner, a BJP Member of Parliament, in the contempt petition. It
C
was stated that instead of expression of any remorse or apology, attempt
was made to justify the contemptuous statement as having been made
in the heat of the moment.
29. On arguments having taken place in this context, and realizing
the seriousness of the matter and the inadequacy of the affidavit, learned
D
counsel for the contemnor took liberty to file an additional affidavit. Vide
order dated 30.4.2019, this Court left the admissibility and acceptance
of such an affidavit to be considered on the subsequent date. An
additional affidavit was filed on 8.5.2019 stating that the contemnor held
this Court in the highest esteem and respect and never intended to
E interfere with the process of administration of justice. An unconditional
apology was tendered by him by stating that the attributions were
entirely unintentional, non-willful and inadvertent.
30. The matter was, once again, addressed by the learned
counsel. We have given our thoughtful consideration to this issue.
F
31. We must note that it is unfortunate that without verification
or even perusing as to what is the order passed, the contemnor deemed
it appropriate to make statements as if this Court had given an
imprimatur to his allegations against the Prime Minister, which was far
from the truth. This was not one sentence or a one off observation but
G a repeated statement in different manners conveying the same. No
doubt the contemnor should have been far more careful.
32. The matter was compounded by filing a 20 page affidavit
with a large number of documents annexed rather than simply
accepting the mistake and giving an unconditional apology. Better
H wisdom dawned on the counsel only during the course of arguments
YASHWANT SINHA v. CENTRAL BUREAU OF 941
INVESTIGATION THR. ITS DIR. [SANJAY KISHAN KAUL, J.]
thereafter when a subsequent affidavit dated 8.5.2019 was filed. We A
do believe that persons holding such important positions in the political
spectrum must be more careful. As to what should be his campaign
line is for a political person to consider. However, this Court or for
that matter no court should be dragged into this political discourse valid
or invalid, while attributing aspects to the Court which had never been
B
held by the Court. Certainly Mr. Gandhi needs to be more careful in
future.
33. However, in view of the subsequent affidavit, better sense
having prevailed, we would not like to continue these proceedings further
and, thus, close the contempt proceedings with a word of caution for
C
the contemnor to be more careful in future.
(I.A. No. 69008/2019 – CLARIFICATION/DIRECTION,
I.A. No. 69006/2019 – INTERVENTION APPLICATION,
I.A. No. 71047/2019 – PRODUCTION OF RECORDS and
I.A. No. 69009/2019 – STAY APPLICATION)
D
34. In view of the orders passed above, these applications do
not survive for consideration and the same are disposed of. Any other
pending applications also stands disposed.
E
K. M. JOSEPH, J.
1. I have perused the Order proposed by my learned Brother,
Justice Sanjay Kishan Kaul. While I agree with the final decision subject
to certain aspects considered by me, I would, by my separate opinion,
give my reasons, which are as hereunder. F
2. The common judgment in four Writ Petitions has generated
three Review Petitions, a Contempt Petition and a Petition under Section
340 of The Code of Criminal Procedure, 1973 (hereinafter referred to
as ‘the Cr.PC’ for short) and an application seeking correction.
3. Review Petition (Criminal) No. 46 of 2019 is filed by the G
petitioners in Writ Petition (Criminal) No. 298 of 2018. In the said Writ
Petition, relief sought, inter alia, was to register an FIR and to
investigate the complaint which was made by the petitioners and to
submit periodic status reports. The reliefs, as are made in the clauses
‘a’ to ‘e’ of the prayer, read as follows: H
942 SUPREME COURT REPORTS [2019] 17 S.C.R.
A “a. Issue writ of mandamus or any other appropriate writ
directing Respondent No.1 to register an F.I.R. on the
complaint that was made by the Petitioners on the 04th
of October, 2018.
b. Issue writ of mandamus or any other appropriate writ
B directing the Respondent No.1 to investigate the
offences disclosed in the said complaint in a time bound
manner and to submit periodic status reports to the
Court.
c. Issue writ of mandamus or any other appropriate writ
C directing the Respondent No.2 to cease and desist from
influencing or intimidating in any way the officials that
would investigate the offences disclosed in the
complaint.
d. Issue writ of mandamus or any other appropriate writ
D directing the Respondent No.1 and Respondent No.2 to
not transfer the C.B.I. officials tasked with investigation
of the offences mentioned in the complaint.
e. Issue writ of mandamus or any other appropriate writ
to ensure that the relevant records are not destroyed or
E tampered with and are transferred to the CBI.”
4. Review Petition (Criminal) No. 122 of 2019 is filed by the
petitioner in Writ Petition (Criminal) No. 297 of 2018. The reliefs sought
in the said Writ Petition is as follows:
“(a) to constitute a Special Investigating Team (SIT) under
F
the supervision of the Hon’ble Supreme Court with
following mandate:
i. to investigate the reasons for cancellation of earlier
deal for the purchase of 126 Rafale Fighter Jets.
G ii. As to how the figure of 36 Fighter Jets was arrived
at without the formalities associated with such a
highly sensitive defence procurement.
iii. to look into the alterations made by the Respondent
No.2 about the pricing of the Rafale Fighter Jets in
H view of the earlier price of Rs.526 crores per Fighter
YASHWANT SINHA v. CENTRAL BUREAU OF 943
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
Jets alongwith requisite equipments, services and A
weapons and Rs.670 crores without associated
equipments, weapons, India specific enhancements,
maintenance support and services; which resulted
into the escalation of price of each Fighter Jets from
Rs.526 crores to more than 1500 crores;
B
iv. to investigate as to how a novice company viz.
Reliance Defence came in picture of this highly
sensitive defence deal involving Rs.59,000 crores
without having any kind of experience and expertise
in making of Fighter Jets. C
v. As to why name of ‘Hindustan Aeronautics Limited’
was removed from the deal?
vi. As to whether the decision of purchase of only 36
Rafale Fighter Jets instead of 126 was a
compromise with the security of the Country or not? D
vii. Whether the Reliance Defence or it’s sister concern
or any other individual or intermediary company has/
have influenced the decision making of the purchase
of Rafale Fighter Jets at substantially higher prices
in the backdrop of the statement given by the then E
President of French Republic and the investment
made by the Reliance Entertainment into the Julie
Gayet’s Firm Rouge International was made with a
purpose to influence the decision of removal of the
HAL and induction of Reliance Defence as partner F
of the Dassault;
(b) to terminate/cancel the inter-governmental agreement
with the Govt. of French Republic signed on 23-09-2016
for the purchase of 36 Rafale Fighter Jets and to give
direction to the Respondent No.3 to lodge an FIR and G
to report the progress of investigation to this Hon’ble
Court;
(c) to restore the earlier deal for the purchase of 126
Rafale Fighter Jets which was cancelled on 24.06.2015
by the Govt. of India. H
944 SUPREME COURT REPORTS [2019] 17 S.C.R.
A (d) to bar the Dassault Reliance Aerospace Limited
(DRAL) from handling/manufacturing the Rafale Fighter
Jets;
(e) to direct the Respondent 1&2 to propose the Public
Sector Company Hindustan Aeronautics Limited as the
B Indian Offset Partner of Dassault;”
5. Review Petition (Criminal) No. 719 of 2019 has been filed
again by a sole petitioner in Writ Petition (Criminal) No. 1205 of 2018.
The reliefs sought in the said Writ Petition is as follows:
“a) Issue an appropriate writ or order or direction directing
C the respondents to file the details of the agreement
entered into between the Union of India and Government
of France with regard to the purchase of 36 Rafale
Fighter Jets in a sealed envelope.
b) Issue an appropriate writ or order or direction directing
D the respondents to furnish in a sealed envelope the
information with regard to the present cost of Rafale
Fighter Jets and also the earlier cost of the Rafale
Fighter Jets during the regime of UPA Government;
c) Issue an appropriate writ or order or direction directing
E the respondents to furnish any other information in sealed
envelope before the Hon’ble Supreme Court with regard
to the controversy erupted in the purchase of Rafale
Fighter Jets;”
THE IMPUGNED JUDGMENT
F 6. The three Writ Petitions, as also Writ Petition in which no
Review is filed, came to be dismissed. This Court has referred to the
reliefs which have been sought in the four Writ Petitions. This Court
referred to the parameters of judicial review. The extent of permissible
judicial review of contracts, procurement, etc., was found to vary with
the subject matter of the contract. It was further observed that the
G scrutiny of the challenges before the Court, will have to be made keeping
in mind the confines of national security, the subject of procurement
being crucial to the nation’s sovereignty.
7. The findings of this Court in paragraph 15 throws light on the
controversy as was understood by the Court. Paragraph 15 reads as
H follows:
YASHWANT SINHA v. CENTRAL BUREAU OF 945
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
“15. It is in the backdrop of the above facts and the A
somewhat constricted power of judicial review that, we
have held, would be available in the present matter that
we now proceed to scrutinise the controversy raised in
the writ petitions which raise three broad areas of
concern, namely, (i) the decision-making process; (ii)
B
difference in pricing; and (iii) the choice of IOP.”
(Emphasis supplied)
8. Thereafter, this Court had proceeded to consider the decision-
making process, pricing and offsets and did not find in favour of the
petitioners. It is after the discussion, as aforesaid, it is to be noted that C
this Court finally concluded as follows:
“33. Once again, it is neither appropriate nor within the
experience of this Court to step into this arena of what is
technically feasible or not. The point remains that DPP 2013
envisages that the vendor/OEM will choose its own IOPs. In this D
process, the role of the Government is not envisaged and, thus,
mere press interviews or suggestions cannot form the basis for
judicial review by this Court, especially when there is categorical
denial of the statements made in the Press, by both the sides.
We do not find any substantial material on record to show that
this is a case of commercial favouritism to any party by the Indian E
Government, as the option to choose IOP does not rest with the
Indian Government.
Conclusion
34. In view of our findings on all the three aspects, and having F
heard the matter in detail, we find no reason for any intervention
by this Court on the sensitive issue of purchase of 36 defence
aircrafts by the Indian Government. Perception of individuals
cannot be the basis of a fishing and roving enquiry by this Court,
especially in such matters. We, thus, dismiss all the writ petitions,
leaving it to the parties to bear their own costs. We, however, G
make it clear that our views as above are primarily from the
standpoint of the exercise of the jurisdiction under Article 32 of
the Constitution of India which has been invoked in the present
group of cases.”
(Emphasis supplied) H
946 SUPREME COURT REPORTS [2019] 17 S.C.R.
A 9. Upon consideration of the Review Petitions and Applications,
by Order dated 26.02.2019, prayer for hearing in the open court was
allowed. We have heard learned counsel. We heard parties in Review
Petition (Criminal) No. 46 of 2019, the learned Attorney General and
learned Solicitor General.
B 10. As far as petitioners in Review Petition (Criminal) No. 46 of
2019 is concerned, the complaint appears to be that this Court has totally
overlooked the relief sought in Writ Petition (Criminal) No. 298 of 2018.
11. The first respondent is the Central Bureau of Investigation
(CBI) and the second respondent is the Union of India in Writ Petition
C (Criminal) No. 298 of 2018. The substance of the Writ Petition is that
after following the due process under the Defence Procurement
Procedure (DPP), to procure Advanced Fighter Aircrafts, and as per
the authority under the DPP, the IAF Service Headquarters, after a
widely consultative process with multiple Institutions, prepared Services
Qualitative Requirements (SQR), specifying the number of aircrafts
D required as 126. There was the recommendation of the Committee that
Make in India by Hindustan Aeronautics Limited (HAL), a Public Sector
Enterprise, under a Transfer Technology Agreement, should be the mode
of procurement. The Defence Acquisition Council granted the
mandatory Acceptance of Necessity (AON). A Request for Proposal
E (RFP) was, accordingly, issued. There were six vendors. In 2011, it
was announced that Dassault’s Rafale and Eurofighter GmbH Typhoon
met the IAF requirements. In March of 2014, a Work Share Agreement
was entered into between Dassault Aviation and HAL. Accordingly,
HAL would do 70 per cent of the work on 108 planes. On 25.03.2015,
it is alleged that Dassault was in the final stages of negotiations with
F
India for 126 aircrafts and HAL was to be the partner of Dassault.
12. It was the further case of the petitioners that a new deal
was, however, inexplicably negotiated and announced by the Prime
Minister without following the due procedure. Number of aircrafts were
reduced to 36. This involved complete violation of all laid down Defence
G Procurement Procedure. There are various allegations made against
the deal to purchase 36 planes in place of 126. In particular, there is
reference to Mr. Anil Ambani not owning any company engaged in
manufacture of products and services mentioned in the list of products
and services eligible for discharge of offset obligations. A company was
H incorporated as Reliance Defence Limited on 28.03.2015, just twelve
YASHWANT SINHA v. CENTRAL BUREAU OF 947
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
days before the new deal was suddenly announced on 10.04.2015. A
There is also the case that DPP was bypassed for collateral
considerations. In the complaint lodged with CBI, there is reference to
the Prevention of Corruption Act, 1988, as it stood prior to amendment.
Their request is to register an FIR under the provisions which are
mentioned therein which fall under the Prevention of Corruption Act,
B
1988 and to investigate the matter. Other reliefs are already referred
to.
13. The petitioners in the said case, premise their case on the
judgment of this Court in Lalita Kumari v. Government of Uttar Pradesh
and others1. It is their case that though reference was made to the relief
at the beginning of the judgment, thereafter, this Court focused only on C
the merits of the matter in terms of the powers available to it under
judicial review. Reliefs sought in other Writ Petitions were focused upon.
The only prayers of the petitioners in Writ Petition (Criminal) No. 298
of 2018, as noticed, was a direction to follow the command of Lalita
Kumari (supra) and to register an FIR as they have filed a complaint
D
which is produced along with Writ Petition and as no action was taken
as mandated by the Constitution Bench of this Court, they have
approached this Court. The error is apparent in not even considering
the impact of the Constitution Bench and requires to be redressed
through the Review Petition. The petitioners also, undoubtedly, point out
that there was suppression of facts by the respondents. This Court was E
sought to be misled. There is also a case that the petitioners have
obtained documents which suggest that there were parallel negotiations
being undertaken by the Prime Minister’s Office (PMO) which was
strenuously objected to by the Indian Negotiating Team (INT). The
statement in the judgment that the pricing details have been shared with
the Comptroller and Auditor General of India (CAG) and the Report F
of the CAG has been examined by the Public Accounts Committee
(PAC) and that only a redacted portion of the Report was placed before
the Parliament, are pointed out to be patently false. It is primarily in
regard to the same that an Application is filed purporting to be under
Section 340 of the Cr.PC. There is an Application for Correction and
there is complaint of wholesale suppression of facts. Errors are also G
referred to.
14. The stand of the Government of India is that the Review
Petitions are meritless. This Court has elaborately considered the matter
1
(2014) 2 SCC 1 H
948 SUPREME COURT REPORTS [2019] 17 S.C.R.
A and found that there was nothing wrong. It is the case of the
Government that the impugned judgement addresses contentions of the
petitioners on compelling principles with regard to the scope of the
judicial inquiry in cases involving the security and defence of the nation
and it lays down the correct law. It is pointed out that there is no grave
error apparent on the face of record. Reliance is placed on judgment
B
of this Court in Mukesh v. State (NCT of Delhi)2. A fishing inquiry is
impermissible. There was additional benefit to the country as a result
of the deal which is sought to be questioned. Reliance is placed on the
findings of the CAG. It is contended that the CAG has conclusively
held that the basis of the benchmark by the INT was unrealistic.
C
15. The CAG has held that 36 Rafale aircrafts deal was 2.86
per cent lower than the audit aligned price. Regarding the offset
guidelines being amended initially to benefit an industrial group, it is
stoutly denied. The waiver of sovereignty/bank guarantee in
Government to Government agreements is pointed out to be not unusual.
D Support is sought to be drawn from the Report of the CAG, inter alia,
finding that the French Government was made equally responsible to
fulfil its obligations. The production and delivery schedule are monitored
by high-level Committee with representatives of both Governments of
France and India.
E 16. As far as mandate of Lalita Kumari (supra), not being
followed, it is stated that disclosing prima facie that a cognizable
offence is committed is mandatory, which is lacking in the present case
especially once this Court has concluded that on decision-making
process, pricing and Indian Offset Partners, there was no reason to
intervene. Once this Court has held that perception of individuals cannot
F
be the basis for a fishing and roving inquiry, no cognizable offence is
made out prima facie so as to order registration of an FIR. There is
no concealment of facts or false presentation of facts.
CONTOURS OF REVIEW JURISDICTOIN
G 17. Article 137 of the Constitution confers jurisdiction on the
Supreme Court of India to exercise power of review. It reads as follows:
“137. Review of judgments or orders by the Supreme Court
Subject to the provisions of any law made by Parliament or any
2
H (2018) 8 SCC 149
YASHWANT SINHA v. CENTRAL BUREAU OF 949
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
rules made under Article 145, the Supreme Court shall have A
power to review any judgment pronounced or order made by it.”
18. Rules have been made known as The Supreme Court Rules,
2013. Order XLVII of the said Rules, deals with review (In The
Supreme Court Rules, 1966, it was contained in Order XL) and it reads
as follows: B
“ORDER XLVII
REVIEW
1. The Court may review its judgment or order, but no application
for review will be entertained in a civil proceeding except on the C
ground mentioned in Order XLVII, rule I of the Code, and in a
criminal proceeding except on the ground of an error apparent
on the face of the record.
The application for review shall be accompanied by a certificate
of the Advocate on Record certifying that it is the first application D
for review and is based on the grounds admissible under the
Rules.
2. An application for review shall be by a petition, and shall be
filed within thirty days from the date of the judgment or order
sought to be reviewed. It shall set out clearly the grounds for E
review.
3. Unless otherwise ordered by the Court an application for
review shall be disposed of by circulation without any oral
arguments, but the petitioner may supplement his petition by
additional written arguments. The Court may either dismiss the F
petition or direct notice to the opposite party. An application for
review shall as far as practicable be circulated to the same Judge
or Bench of Judges that delivered the judgment or order sought
to be reviewed.
4. Where on an application for review the Court reverses or G
modifies its former decision in the case on the ground of mistake
of law or fact, the Court, may, if it thinks fit in the interests of
justice to do so, direct the refund to the petitioner of the court-
fee paid on the application in whole or in part, as it may think
fit. H
950 SUPREME COURT REPORTS [2019] 17 S.C.R.
A 5. Where an application for review of any judgment and order
has been made and disposed of, no further application for review
shall be entertained in the same matter.”
19. Thus, a perusal of the same would show that the jurisdiction
of this Court, to entertain a review petition in a civil matter, is patterned
B on the power of the Court under Order XLVII Rule 1 of The Code of
Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’, for short).
20. Order XLVII Rule 1 of the CPC, reads as follows:
“ORDER XLVII : REVIEW
C 1. Application for review of judgement
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is
allowed, but from no appeal has been preferred,
(b) by a decree or order from which no appeal is
D allowed, or
(c) by a decision on a reference from a Court of Small
Causes,
and who, from the discovery of new and important matter or
E evidence which, after the exercise of due diligence was not within
his knowledge or could not be produced by him at the time when
the decree was passed or order made, or on account of some
mistake or error apparent on the face of the record or for any
other sufficient reason, desires to obtain a review of the decree
passed or order made against him, may apply for a review of
F judgement to the Court which passed the decree or made the
order.
(2) A party who is not appealing from a decree or order
may apply for a review of judgement notwithstanding
the pendency of an appeal by some other party except
G where the ground of such appeal is common to the
applicant and the appellant, or when, being respondent,
he can present to the Appellate Court the case on which
he applies for the review.
Explanation.- The fact that the decision on a question of law on
H which the judgement of the Court is based has been reversed or
YASHWANT SINHA v. CENTRAL BUREAU OF 951
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
modified by the subsequent decision of a superior Court in any A
other case, shall not be a ground for the review of such
judgement.”
21. It will be noticed that in criminal matters, review lies on an
error apparent on the face of record being established. However, it is
necessary to notice what a Constitution Bench of this Court laid down B
in P.N. Eswara Iyer And Others v. Registrar, Supreme Court of India3:
“34. The rule [Ed.:Order 40, Rule 1 of the Supreme Court Rules]
, on its face, affords a wider set of grounds for review for orders
in civil proceedings, but limits the ground vis-a-vis criminal
proceedings to “errors apparent on the face of the record”. If C
at all, the concern of the law to avoid judicial error should be
heightened when life or liberty is in peril since civil penalties are
often less traumatic. So, it is reasonable to assume that the
framers of the rules could not have intended a restrictive review
over criminal orders or judgments. It is likely to be the other way
about. Supposing an accused is sentenced to death by the D
Supreme Court and the “deceased” shows up in court and the
court discovers the tragic treachery of the recorded testimony.
Is the court helpless to review and set aside the sentence of
hanging? We think not. The power to review is in Article 137
and it is equally wide in all proceedings. The rule merely canalises
E
the flow from the reservoir of power. The stream cannot stifle
the source. Moreover, the dynamics of interpretation depend on
the demand of the context and the lexical limits of the test. Here
“record” means any material which is already on record or may,
with the permission of the court, be brought on record. If justice
summons the Judges to allow a vital material in, it becomes part F
of the record; and if apparent error is there, correction becomes
necessitous.
35. The purpose is plain, the language is elastic and interpretation
of a necessary power must naturally be expansive. The
substantive power is derived from Article 137 and is as wide for G
criminal as for civil proceedings. Even the difference in
phraseology in the rule (Order 40 Rule 2) must, therefore, be
read to encompass the same area and not to engraft an artificial
divergence productive of anomaly. If the expression “record” is
3
(1980) 4 SCC 680 H
952 SUPREME COURT REPORTS [2019] 17 S.C.R.
A read to mean, in its semantic sweep, any material even later
brought on record, with the leave of the court, it will embrace
subsequent events, new light and other grounds which we find
in Order 47 Rule 1, CPC. We see no insuperable difficulty in
equating the area in civil and criminal proceedings when review
power is invoked from the same source.”
B
(Emphasis supplied)
22. In Suthendraraja Alias Suthenthira Raja Alias Santhan
and others v. State Through DSP/CBI, SIT, Chennai4, referring to the
judgement in P.N. Eswara Iyer (supra), it was, inter alia, held that the
C scope of review was widened considerably by the pronouncement.
23. In Haridas Das v. Usha Rani Banik (Smt.) and others5, the
question arose out of an appeal in the High Court, wherein the High
Court accepted the prayer for review. This Court held as follows:
“13. … The parameters are prescribed in Order 47 CPC and
D for the purposes of this lis, permit the defendant to press for a
rehearing “on account of some mistake or error apparent on the
face of the records or for any other sufficient reason”. The
former part of the rule deals with a situation attributable to the
applicant, and the latter to a jural action which is manifestly
E incorrect or on which two conclusions are not possible. Neither
of them postulate a rehearing of the dispute because a party had
not highlighted all the aspects of the case or could perhaps have
argued them more forcefully and/or cited binding precedents to
the court and thereby enjoyed a favourable verdict. This is amply
evident from the Explanation to Rule 1 of Order 47 which states
F that the fact that the decision on a question of law on which the
judgment of the court is based has been reversed or modified
by the subsequent decision of a superior court in any other case,
shall not be a ground for the review of such judgment. Where
the order in question is appealable the aggrieved party has
G adequate and efficacious remedy and the court should exercise
the power to review its order with the greatest circumspection.
…”
(Emphasis supplied)
4
(1999) 9 SCC 323
5
H (2006) 4 SCC 78
YASHWANT SINHA v. CENTRAL BUREAU OF 953
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
24. Jain Studios Ltd. Through Its President v. Shin Satellite Public A
Co. Ltd.6 involved an order passed by Judge in Chambers. It was sought
to review the order passed which is reported in Shin Satellite Public
Co. Ltd. v. Jain Studios Ltd.7. In the Arbitration Petition which was
the main matter, there was a prayer to appoint an Arbitrator by the
review petitioner. The same was heard and rejected. The learned Judge,
B
in the said circumstances, held as follows:
“11. So far as the grievance of the applicant on merits is
concerned, the learned counsel for the opponent is right in
submitting that virtually the applicant seeks the same relief which
had been sought at the time of arguing the main matter and had
been negatived. Once such a prayer had been refused, no review C
petition would lie which would convert rehearing of the original
matter. It is settled law that the power of review cannot be
confused with appellate power which enables a superior court
to correct all errors committed by a subordinate court. It is not
rehearing of an original matter. A repetition of old and overruled D
argument is not enough to reopen concluded adjudications. The
power of review can be exercised with extreme care, caution
and circumspection and only in exceptional cases.”
(Emphasis supplied)
25. In State of West Bengal and others v. Kamal Sengupta and E
another8, this Court, inter alia, held as follows:
“21. At this stage it is apposite to observe that where a review
is sought on the ground of discovery of new matter or evidence,
such matter or evidence must be relevant and must be of such
a character that if the same had been produced, it might have F
altered the judgment. In other words, mere discovery of new or
important matter or evidence is not sufficient ground for
review ex debito justitiae. Not only this, the party seeking
review has also to show that such additional matter or evidence
was not within its knowledge and even after the exercise of due G
diligence, the same could not be produced before the court
earlier.”
6
(Emphasis supplied)
(2006) 5 SCC 501
7
(2006) 2 SCC 628
8
(2008) 8 SCC 612 H
954 SUPREME COURT REPORTS [2019] 17 S.C.R.
A 26. In Moran Mar Basselios Catholicos and another v. Most Rev.
Mar Poulose Athanasius and others 9, the question, which fell for
consideration was, whether misconception of the court about a
concession by counsel, furnished a ground for review. A court may
pronounce a judgement on the basis that a concession had been made
by the counsel when none had been made. The court may also
B misapprehend the terms of the concession or the scope of a concession.
When such misconception underscores a judgment, whether review
would lie? Answering the said question, this Court proceeded to hold
as follows:
“36. … Patanjali Sastri, J. (as he then was) sitting singly in the
C Madras High Court definitely took the view in Rekhanti Chinna
Govinda Chettiyar v. S. Varadappa Chettiar [AIR 1940 Mad.
17] that a misconception by the court of a concession made by
the advocate or of the attitude taken up by the party appears to
be a ground analogous to the grounds set forth in the first part
of the review section and affords a good and cogent ground for
D
review. The learned Attorney-General contends that this affidavit
and the letters accompanying it cannot be said to be part of “the
record” within the meaning of Order 47 Rule 1. We see no reason
to construe the word “record” in the very restricted sense as
was done by Denning, L.J., in Rex v. Northumberland
E Compensation Appeal Tribunal Ex parte Shaw [(1952) 2 KB
338 at pp. 351-52] which, was a case of certiorari and include
within that term only the document which initiates the
proceedings, the pleadings and the adjudication and exclude the
evidence and other parts of the record. Further, when the error
complained of is that the court assumed that a concession had
F been made when none had in fact been made or that the court
misconceived the terms of the concession or the scope and extent
of it, it will not generally appear on the record but will have to
be brought before the court by way of an affidavit as suggested
by the Privy Council as well as by this Court and this can only
G be done by way of review. The cases to which reference has
been made indicate that the misconception of the court must be
regarded as sufficient reason analogous to an error on the face
of the record. In our opinion it is permissible to rely on the
affidavit as an additional ground for review of the judgment.”
(Emphasis supplied)
H 9
AIR 1954 SC 526
YASHWANT SINHA v. CENTRAL BUREAU OF 955
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
27. It is pertinent to notice that this Court did not confine the A
word “record” in the narrow sense in which it was interpreted as in
the case of an application of Writ of Certiorari. This Court also
sanctioned support being drawn from an affidavit by the counsel in this
regard, as additional ground for review. Misconception by a court, was
found embraced within the scope of the expression “sufficient reasons”. B
28. Non-advertence to the particular provision of the Statute,
which was pertinent and relevant to the lis, was held to be a ground to
seek review. In Girdhari Lal Gupta v. D.N. Mehta and another10, this
Court held as follows:
“16. The learned counsel for the respondent State urges that this C
is not a case fit for review because it is only a case of mistaken
judgment. But we are unable to agree with this submission
because at the time of the arguments our attention was not drawn
specifically to sub-section 23-C(2) and the light it throws on the
interpretation of sub-section (1).” D
(Emphasis supplied)
29. Also, see in this regard, judgment in Deo Narain Singh v.
Daddan Singh and others11 where finding that this Court had decided
the case on the basis of a Statute, which was inapplicable in the facts,
review was granted. E
30. In Sow Chandra Kante and another v. Sheikh Habib12, the
judgment involved a request to review the decision of this Court refusing
special leave to appeal in a matter, this Court held as follows:
“… A review of a judgment is a serious step and reluctant resort F
to it is proper only where a glaring omission or patent mistake
or like grave error has crept in earlier by judicial fallibility. A mere
repetition, through different counsel, of old and overruled
arguments, a second trip over ineffectually covered ground or
minor mistakes of inconsequential import are obviously
insufficient. …” G
(Emphasis supplied)
10
AIR 1971 SC 2162
11
1986 (Supp) SCC 530
12
(1975) 1 SCC 674 H
956 SUPREME COURT REPORTS [2019] 17 S.C.R.
A 31. Two documents, which were part of the record, were
considered by the Judicial Commissioner to allow review by the High
Court. This Court, in appeal, in the judgement in Aribam Tuleshwar
Sharma v. Aribam Pishak Sharma and others13, found as follows:
“4. In the present case both the grounds on which the review
B was allowed were hardly grounds for review. That the two
documents which were part of the record were not considered
by the Court at the time of issue of a writ under Article 226
cannot be a ground for review especially when the two
documents were not even relied upon by the parties in the
affidavits filed before the Court in the proceedings under Article
C 226. Again that several instead of one writ petition should have
been filed is a mere question of procedure which certainly would
not justify a review. We are, therefore, of the view that the
Judicial Commissioner acted without jurisdiction in allowing the
review. The order of the Judicial Commissioner dated December
D 7, 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. Governor
of Delhi14 was a case which fell to be considered under Article 137 of
E the Constitution of India. The relevant discussion is found in paragraphs
8 and 9. They read as follows:
“8. It is well-settled that a party is not entitled to seek a review
of a judgment delivered by this Court merely for the purpose of
a rehearing and a fresh decision of the case. The normal principle
F
is that a judgment pronounced by the Court is final, and departure
from that principle is justified only when circumstances of a
substantial and compelling character make it necessary to do
so: Sajjan Singh v. State of Rajasthan [AIR 1965 SC 845 :
(1965) 1 SCR 933, 948 : (1965) 1 SCJ 377] . For instance, if the
G attention of the Court is not drawn to a material statutory
provision during the original hearing, the Court will review its
judgment: G.L. Gupta v. D.N. Mehta [(1971) 3 SCC 189 : 1971
13
(1979) 4 SCC 389
14
H (1980) 2 SCC 167
YASHWANT SINHA v. CENTRAL BUREAU OF 957
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
SCC (Cri) 279 : (1971) 3 SCR 748, 750]. The Court may also A
reopen its judgment if a manifest wrong has been done and it is
necessary to pass an order to do full and effective justice: O.N.
Mohindroo v. Distt. Judge, Delhi [(1971) 3 SCC 5 : (1971) 2
SCR 11, 27] . Power to review its judgments has been conferred
on the Supreme Court by Article 137 of the Constitution, and that B
power is subject to the provisions of any law made by Parliament
or the rules made under Article 145. In a civil proceeding, an
application for review is entertained only on a ground mentioned
in Order 47 Rule 1 of the Code of Civil Procedure, and in a
criminal proceeding on the ground of an error apparent on the
C
face of the record (Order 40 Rule 1, Supreme Court Rules, 1966).
But whatever the nature of the proceeding, it is beyond dispute
that a review proceeding cannot be equated with the original
hearing of the case, and the finality of the judgment delivered
by the Court will not be reconsidered except “where a glaring
omission or patent mistake or like grave error has crept in earlier D
by judicial fallibility”: Sow Chandra Kante v. Sheikh
Habib [(1975) 1 SCC 674 : 1975 SCC (Tax) 200 : (1975) 3 SCR
933].
9. Now, besides the fact that most of the legal material so
E
assiduously collected and placed before us by the learned
Additional Solicitor General, who has now been entrusted to
appear for the respondent, was never brought to our attention
when the appeals were heard, we may also examine whether
the judgment suffers from an error apparent on the face of the
F
record. Such an error exists if of two or more views canvassed
on the point it is possible to hold that the controversy can be said
to admit of only one of them. If the view adopted by the Court
in the original judgment is a possible view having regard to what
the record states, it is difficult to hold that there is an error
apparent on the face of the record.” G
33. Question in the said case arose under the Bengal Finance
(Sales Tax) Act, 1941. The case was based on new material sought to
be adduced by the Revenue to establish that the transaction amounted
to a sale. H
958 SUPREME COURT REPORTS [2019] 17 S.C.R.
A 34. The foundations, which underlie the review jurisdiction, has
been examined by this Court at some length in the judgment in S.
Nagaraj and others v. State of Karnataka and another15:
“18. Justice is a virtue which transcends all barriers. Neither the
rules of procedure nor technicalities of law can stand in its way.
B The order of the Court should not be prejudicial to anyone. Rule
of stare decisis is adhered for consistency but it is not as inflexible
in Administrative Law as in Public Law. Even the law bends
before justice. Entire concept of writ jurisdiction exercised by
the higher courts is founded on equity and fairness. If the Court
finds that the order was passed under a mistake and it would
C
not have exercised the jurisdiction but for the erroneous
assumption which in fact did not exist and its perpetration shall
result in miscarriage of justice then it cannot on any principle be
precluded from rectifying the error. Mistake is accepted as valid
reason to recall an order. Difference lies in the nature of mistake
D and scope of rectification, depending on if it is of fact or law.
But the root from which the power flows is the anxiety to avoid
injustice. It is either statutory or inherent. The latter is available
where the mistake is of the Court. In Administrative Law the
scope is still wider. Technicalities apart if the Court is satisfied
of the injustice then it is its constitutional and legal obligation to
E
set it right by recalling its order. Here as explained, the Bench
of which one of us (Sahai, J.) was a member did commit an error
in placing all the stipendiary graduates in the scale of First
Division Assistants due to State’s failure to bring correct facts
on record. But that obviously cannot stand in the way of the
F Court correcting its mistake. Such inequitable consequences as
have surfaced now due to vague affidavit filed by the State
cannot be permitted to continue.
19. Review literally and even judicially means re-examination or
re-consideration. Basic philosophy inherent in it is the universal
G acceptance of human fallibility. Yet in the realm of law the courts
and even the statutes lean strongly in favour of finality of decision
legally and properly made. Exceptions both statutorily and
judicially have been carved out to correct accidental mistakes
or miscarriage of justice. Even when there was no statutory
15
H 1993 Supp (4) SCC 595
YASHWANT SINHA v. CENTRAL BUREAU OF 959
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
provision and no rules were framed by the highest court indicating A
the circumstances in which it could rectify its order the courts
culled out such power to avoid abuse of process or miscarriage
of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj
Rai [AIR 1941 FC 1, 2 : 1940 FCR 78 : (1941) 1 MLJ Supp 45]
the Court observed that even though no rules had been framed
B
permitting the highest Court to review its order yet it was
available on the limited and narrow ground developed by the
Privy Council and the House of Lords. The Court approved the
principle laid down by the Privy Council in Rajunder Narain
Rae v. Bijai Govind Singh [(1836) 1 Moo PC 117 : 2 MIA 181
: 1 Sar 175] that an order made by the Court was final and could C
not be altered:
“… nevertheless, if by misprision in embodying the judgments,
by errors have been introduced, these Courts possess, by
Common law, the same power which the Courts of record
and statute have of rectifying the mistakes which have crept D
in …. The House of Lords exercises a similar power of
rectifying mistakes made in drawing up its own judgments,
and this Court must possess the same authority. The Lords
have however gone a step further, and have corrected
mistakes introduced through inadvertence in the details of
judgments; or have supplied manifest defects in order to enable E
the decrees to be enforced, or have added explanatory matter,
or have reconciled inconsistencies.”
Basis for exercise of the power was stated in the same decision
as under:
F
“It is impossible to doubt that the indulgence extended in such
cases is mainly owing to the natural desire prevailing to prevent
irremediable injustice being done by a Court of last resort,
where by some accident, without any blame, the party has
not been heard and an order has been inadvertently made as
if the party had been heard.” G
Rectification of an order thus stems from the fundamental
principle that justice is above all. It is exercised to remove the
error and not for disturbing finality. When the Constitution was
framed the substantive power to rectify or recall the order passed
by this Court was specifically provided by Article 137 of the H
960 SUPREME COURT REPORTS [2019] 17 S.C.R.
A Constitution. Our Constitution-makers who had the practical
wisdom to visualise the efficacy of such provision expressly
conferred the substantive power to review any judgment or order
by Article 137 of the Constitution. And clause (c) of Article 145
permitted this Court to frame rules as to the conditions subject
to which any judgment or order may be reviewed. In exercise
B
of this power Order XL had been framed empowering this Court
to review an order in civil proceedings on grounds analogous to
Order XLVII Rule 1 of the Civil Procedure Code. The
expression, ‘for any other sufficient reason’ in the clause has been
given an expanded meaning and a decree or order passed under
C misapprehension of true state of circumstances has been held
to be sufficient ground to exercise the power. Apart from Order
XL Rule 1 of the Supreme Court Rules this Court has the
inherent power to make such orders as may be necessary in the
interest of justice or to prevent the abuse of process of Court.
The Court is thus not precluded from recalling or reviewing its
D
own order if it is satisfied that it is necessary to do so for sake
of justice.”
(Emphasis supplied)
35. The decision in S. Nagaraj(supra), has been followed in
E various judgements of this Court (See Lily Thomas and others v. Union
of India and others 16 ; Haryana State Industrial Development
Corporation Limited. v. Mawasi and others17 ; Kamlesh Verma v.
Mayawati and others18; Usha Bharti v. State of Uttar Pradesh and
others19 and Vikram Singh Alias Vicky Walia and another v. State of
Punjab and another20).
F
36. In Kamlesh Verma (supra), this Court in paragraph 20, laid
down its conclusions, which reads as follows:
“Summary of the principles
20. Thus, in view of the above, the following grounds of review
G are maintainable as stipulated by the statute:
16
(2000) 6 SCC 224
17
(2012) 7 SCC 200
18
(2013) 8 SCC 320
19
(2014) 7 SCC 663
20
H (2017) 8 SCC 518.
YASHWANT SINHA v. CENTRAL BUREAU OF 961
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
20.1. When the review will be maintainable: A
(i) Discovery of new and important matter or evidence
which, after the exercise of due diligence, was not within
knowledge of the petitioner or could not be produced
by him;
(ii) Mistake or error apparent on the face of the record; B
(iii) Any other sufficient reason.
The words “any other sufficient reason” have been interpreted
in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW
37 : AIR 1922 PC 112] and approved by this Court in Moran
Mar Basselios Catholicos v. Most Rev. Mar Poulose C
Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean “a
reason sufficient on grounds at least analogous to those specified
in the rule”. The same principles have been reiterated in Union
of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC
337: JT (2013) 8 SC 275] D
20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough
to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
E
(iii) Review proceedings cannot be equated with the original
hearing of the case.
(iv) Review is not maintainable unless the material error,
manifest on the face of the order, undermines its
soundness or results in miscarriage of justice.
F
(v) A review is by no means an appeal in disguise whereby
an erroneous decision is reheard and corrected but lies
only for patent error.
(vi) The mere possibility of two views on the subject cannot
be a ground for review. G
(vii) The error apparent on the face of the record should not
be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within
the domain of the appellate court, it cannot be permitted
to be advanced in the review petition. H
962 SUPREME COURT REPORTS [2019] 17 S.C.R.
A (ix) Review is not maintainable when the same relief sought
at the time of arguing the main matter had been
negatived.”
37. In a very recent judgment, in fact, relied upon by the Union
of India, viz., Mukesh (supra), in a review petition in a criminal appeal,
B this Court reiterated that a review is not rehearing of an original matter.
Even establishing another possible view would not suffice [See Vikram
Singh (supra), which was relied upon].
38. The anxiety of this Court that the consideration of rendering
justice remain uppermost in the mind of the Court, has led to the
C Constitution Bench judgement in Rupa Ashok Hurra v. Ashok Hurra
and another21. It is in the said case that the concept of a curative petition
was devised to empower a litigant to seek a reconsideration of a matter
wherein the review petition also is unsuccessful. Certain steps have
been laid down in this regard which stand incorporated in The Supreme
Court Rules, 2013 [in Part IV Order XLVIII thereof].
D
39. Undoubtedly, any error to be an error on the face of the
record, cannot be one which has to be established by a long drawn out
process of reasoning on points where there may conceivably be two
opinions or if the error requires lengthy and complicated arguments to
establish it, a Writ of Certiorari would not lie (See Satyanarayan
E Laxminarayan Hegde and others v. Mallikarjun Bhavanappa
Tirumale22). This principle is equally applicable to a review petition also.
40. On a conspectus of the above decisions, the following
conclusions appeared to be inevitable and they also provide the premise
for review:
F
Justice above all. While a review petition has not been understood
as an appeal in disguise and a mere erroneous decision may not justify
a review, a decision which betrays an error which is apparent, does
entitle the court to exercise its jurisdiction under Article 137 of the
Constitution. The founding fathers were conscious that this Court was
G the final Court. There are two values, which in any system of law, may
collide. On the one hand, recognizing that men are not infallible and
the courts are manned by men, who are prone to err, there must be a
safety valve to check the possibility of grave injustice being reached to
21
(2002) 4 SCC 388
H 22
AIR 1960 SC 137
YASHWANT SINHA v. CENTRAL BUREAU OF 963
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
a litigant, consequent upon an error, which is palpable or as a result of A
relevant material despite due diligence by a litigant not being made
available or other sufficient reason. The other value which is ever-
present in the mind of the law giver, is, there must be finality to
litigation. Be it judgments of a final court, if it becomes vulnerable to
indiscriminate reopening, unless a strong ground exists, which itself is
B
based on manifest error disclosed by the judgment or the other two
grounds mentioned in Order XLVII of the CPC in a civil matter, it would
spawn considerable inequity.
41. It must be noticed that the principle well-settled in regard
to jurisdiction in review, is that a review is not an appeal in disguise.
The applicant, in a review, is, on most occasions, told off the gates, by C
pointing out that his remedy lay in pursuing an appeal. In the case of a
decision rendered by this Court, it is to be noticed that the underpinning
based on availability of an appeal, is not available as this Court is the
final Court and no appeal lies.
42. It is no doubt true that the Supreme Court Rules, 2013, certain D
powers are conferred on the Registrar as also on the Judge holding
Court in Chambers and appeals, indeed, are provided in respect of
certain orders passed by the Registrar.
43. The fact that no appeal lies from the judgment of this Court
may not, however, result in the jurisdiction of this Court under Article E
137 of the Constitution being enlarged. However, when the Court is
invited to exercise its power of review, this aspect may also be borne
in mind, viz., that unlike the other courts from which an appeal may be
provided either under the Constitution or other laws, or by special leave
under Article 136 of the Constitution, no appeal lies from the judgment F
of this Court, and it is in that sense, the final Court. The underlying
assumption for the principle that a review is not an appeal in disguise,
being that the decision is appealable, is really not available in regard to
a decision rendered by this Court, is all that is being pointed out.
44. A review petition is maintainable if the impugned judgment G
discloses an error apparent on the face of the record. Unlike a
proceeding in Certiorari jurisdiction, wherein the error must not only
be apparent on the face of the record, it must be an error of law, which
must be apparent on the face of the record, for granting review under
Article 137 of the Constitution read with Order XLVII Rule 1 of the
CPC, the error can be an error of fact or of law. No doubt, it must be H
964 SUPREME COURT REPORTS [2019] 17 S.C.R.
A apparent on the face of record. Such an error has been described as a
palpable error or glaring omission. As to what constitutes an error
apparent on the face of record, is a matter to be found in context of
the facts of each case. It is worthwhile to refer to the following
discussion in this regard by this Court in Hari Vishnu Kamath v. Ahmad
Ishaque and Others23, wherein, this Court held as follows:
B
“23. It may therefore be taken as settled that a writ of certiorari
could be issued to correct an error of law. But it is essential that
it should be something more than a mere error; it must be one
which must be manifest on the face of the record. The real
difficulty with reference to this matter, however, is not so much
C in the statement of the principle as in its application to the facts
of a particular case. When does an error cease to be mere error,
and become an error apparent on the face of the record? Learned
counsel on either side were unable to suggest any clear-cut rule
by which the boundary between the two classes of errors could
D be demarcated.
Mr Pathak for the first respondent contended on the strength of
certain observations of Chagla, C.J. in Batuk K. Vyas v. Surat
Municipality [AIR 1953 Bom 133] that no error could be said
to be apparent on the face of the record if it was not self-evident,
E and if it required an examination or argument to establish it. This
test might afford a satisfactory basis for decision in the majority
of cases. But there must be cases in which even this test might
break down, because judicial opinions also differ, and an error
that might be considered by one Judge as self-evident might not
be so considered by another. The fact is that what is an error
F apparent on the face of the record cannot be defined precisely
or exhaustively, there being an element of indefiniteness inherent
in its very nature, and it must be left to be determined judicially
on the facts of each case.”
(Emphasis supplied)
G
45. The view of this Court, in the decision in Girdhari Lal Gupta
(supra) as also in Deo Narain Singh (supra), has been noticed to be
that if the relevant law is ignored or an inapplicable law forms the
foundation for the judgement, it would provide a ground for review. If
23
H AIR 1955 SC 233
YASHWANT SINHA v. CENTRAL BUREAU OF 965
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
a court is oblivious to the relevant statutory provisions, the judgment A
would, in fact, be per incuriam. No doubt, the concept of per incuriam
is apposite in the context of its value as the precedent but as between
the parties, certainly it would be open to urge that a judgment rendered,
in ignorance of the applicable law, must be reviewed. The judgment, in
such a case, becomes open to review as it would betray a clear error
B
in the decision.
46. As regards fresh material forming basis for review, it must
be of such nature that it is relevant and it undermines the verdict. This
is apart from the requirement that it could not be produced despite due
diligence.
C
47. The dismissal of a special leave petition takes place at two
levels. In the first place, the Court may dismiss or reject a special leave
petition at the admission stage. Ordinarily, no reasons accompany such
a decision. In matters where a special leave petition is dismissed after
notice is issued, also reasons may not be given ordinarily. Several
elements enter into the consideration of this Court where a special leave D
petition is dismissed. The task for a review applicant becomes
formidable as reasons are not given. An error apparent on the face of
the record becomes difficult to establish. In a writ petition where
pleadings are exchanged and reasons are given in support of the verdict,
a self-evident error is detected without much argument. No doubt, a E
Court, in review, does not reappreciate and correct a mere erroneous
decision. That reappreciation is tabooed, is not the same as holding that
a Court will not appreciate the case as reflected in the pleadings and
the law by which the Court is governed.
48. In this case, the short point, which this Court is called upon F
to consider, is the effect of the impugned judgment not dealing with a
binding decision rendered by a Constitution Bench which was relied
upon by the petitioners in Writ Petition (Criminal) No. 298 of 2018 and
rendered in Lalita Kumari (supra). It is apposite that I set out what
this Court, speaking through the aforesaid Constitution Bench judgment,
has laid down in paragraph 120: G
“Conclusion/Directions
120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154
of the Code, if the information discloses commission of a H
966 SUPREME COURT REPORTS [2019] 17 S.C.R.
A cognizable offence and no preliminary inquiry is permissible in
such a situation.
120.2. If the information received does not disclose a cognizable
offence but indicates the necessity for an inquiry, a preliminary
inquiry may be conducted only to ascertain whether cognizable
B offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable
offence, the FIR must be registered. In cases where preliminary
inquiry ends in closing the complaint, a copy of the entry of such
closure must be supplied to the first informant forthwith and not
C later than one week. It must disclose reasons in brief for closing
the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering
offence if cognizable offence is disclosed. Action must be taken
against erring officers who do not register the FIR if information
D received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the
veracity or otherwise of the information received but only to
ascertain whether the information reveals any cognizable offence.
E 120.6. As to what type and in which cases preliminary inquiry is
to be conducted will depend on the facts and circumstances of
each case. The category of cases in which preliminary inquiry
may be made are as under:
(a) Matrimonial disputes/family disputes
F
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
G (e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months’ delay
in reporting the matter without satisfactorily explaining
the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all
H conditions which may warrant preliminary inquiry.
YASHWANT SINHA v. CENTRAL BUREAU OF 967
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
120.7. While ensuring and protecting the rights of the accused A
and the complainant, a preliminary inquiry should be made time-
bound and in any case it should not exceed 7 days. The fact of
such delay and the causes of it must be reflected in the General
Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is the B
record of all information received in a police station, we direct
that all information relating to cognizable offences, whether
resulting in registration of FIR or leading to an inquiry, must be
mandatorily and meticulously reflected in the said diary and the
decision to conduct a preliminary inquiry must also be reflected,
as mentioned above.” C
(Emphasis supplied)
49. It is their contention, therefore, that the writ petition came to
be clubbed along with other writ petitions. This Court proceeded to
undertake judicial review of the processes which led to the decision to D
purchase 36 planes going back on the earlier decision which was to
purchase 136 planes.
50. According to the petitioners, therefore, this Court committed
a clear error in not focusing on the relief sought in their writ petition
which was based on the Constitution Bench of this Court which was E
binding on a Bench of lesser strength (three). All this Court is being
asked to do, according to the petitioners, having regard to the law
binding on it, is to direct the registration of the FIR. There is also relief
sought to submit reports in the same.
51. The procedure, which is to be adopted by the authorities, has F
been elaborated upon. There can be no escape from the mandatory
procedure laid down by this Court.
52. Where a party institutes a proceeding, if the proceeding is
of a civil nature, there would be a cause of action. There would be
reliefs sought on the basis of the cause of action. Materials are
G
produced both in support and against the claim. The Court thereafter
renders a judgement either accepting the case or rejecting the case.
When the Court rejects the case, it necessarily involves refusing to grant
the relief sought for by the plaintiff/petitioner. It may transpire that the
petitioner may not press for certain reliefs. The Court may, after applying
its mind to the case, find that the petitioner is not entitled to the relief H
968 SUPREME COURT REPORTS [2019] 17 S.C.R.
A and decline the prayers sought. It may also happen that the court does
refer to the reliefs sought but thereafter does not undertake any
discussion regarding the case for the relief sought and proceeds to non-
suit the party. It is clear that in this case, it is the last aspect which is
revealed by the judgment sought to be reviewed.
B 53. A judgment may be silent in regard to a relief which is sought
by a party. It is apposite, in this regard, to notice Section 11 of the CPC.
If a decree is silent, as regards any relief which is claimed by the
plaintiff, Explanation V to Section 11 declares that the relief must be
treated as declined. The Explanation reads as follows:
C “Section 11, Explanation V.- Any relief claimed in the plaint,
which is not expressly granted by the decree, shall, for the
purposes of this section, be deemed to have been refused.”
54. No doubt, if the relief is expressly refused, then also, the
matter would become res judicata. It is, therefore, of vital importance
D that when a case is decided, the Court considers the claim and the relief
sought, applies the Statute which is applicable and the law which is laid
down particularly when it is by a Constitution Bench in deciding the
case. Just as, in the case of a judgement, where the applicable Statute,
not being applied, would result in a judgment which becomes amenable
to be corrected in review, there can be no reason why when a binding
E judgment of this Court, which is enlisted by the party, is ignored, it should
have a different consequence. In fact, since a review under Article 137
of the Constitution, in a civil matter, is to be exercised, based on what
is contained in Order XLVII Rule 1 of the CPC, the Explanation
therein, may shed some light. The Explanation which was inserted by
F the Act of 1976, following the recommendations of the Law Commission
of India, in its 54th Report, declares that the law is laid down by a
superior court reversing an earlier decision, on a question of law, will
not be a ground for the review of a judgment.
55. The Law Commission, in fact, in the said Report reasoned
G that adopting the view taken by the Kerala High Court in the decision
in Thadikulangara Pylee’s son Pathrose v. Ayyazhiveettil Lakshmi
Amma’s son Kuttan and others24 that a later judgment would amount
to discovery of new and important matter, and in any case an error on
the face of the record, would keep alive the possibility of review
24
H AIR 1969 KER 186
YASHWANT SINHA v. CENTRAL BUREAU OF 969
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
indefinitely. This impliedly would mean that when a court decides a case, A
it must follow judgments which are binding on it. This is not to say that
a smaller Bench of this Court, if it entertains serious doubts about the
correctness of an earlier judgment, may not consider referring the
matter to a larger Bench. However, as long as it does not undertake
any such exercise, it cannot refuse to follow the judgment and that too
B
of a Constitution Bench. Any such refusal to follow the decision binding
on it, would undoubtedly disclose an error which would be palpable
being self-evident.
56. In this case, when this Court rendered the judgment, sought
to be reviewed, the judgment of the Constitution Bench in Lalita Kumari
(supra), undoubtedly, held the field having been rendered on 12.11.2013. C
The said judgement was, indeed, pressed before the Court.
57. To put it in other words, having regard to the relief sought
by the petitioners, the dismissal of the writ petition would be, according
to petitioners, in the teeth of a binding judgment of this Court. Just as
in the case of a binding Statute being ignored and giving rise to the D
right to file a review, neither on logic nor in law would the refusal to
follow a binding judgement, qualify for a different treatment if a review
is filed. Be it a civil or a criminal matter, an error apparent on the face
of the record, furnishes a ground for review.
58. This is not a case where an old argument is being repeated E
in the sense that after it has been considered and rejected, it is re-
echoed in review. It is an argument which was undoubtedly pressed in
the original innings. It is not the fault of the party if the court chose not
even to touch upon it. No doubt, it may be different in a case where a
ground or relief sought is ignored and it is found justified otherwise. F
But where a ground, which is based on principles laid down by a
Constitution Bench of this Court, is not dealt with at all and it is
complained of in review, it will rob the review jurisdiction of the very
purpose it is intended to serve, if the complaint otherwise meritorious,
is not heeded to.
G
59. A learned Single Judge, in an arbitration request, turned down
a plea to appoint a person as Arbitrator. In review, the request was
sought to be resurrected. It was in this context that a learned Single
Judge of this Court, sitting in Chambers, in the decision reported in Jain
Studios Ltd. (supra), laid down that once such a relief was refused in
the main matter, no review petition would lie. However, following the H
970 SUPREME COURT REPORTS [2019] 17 S.C.R.
A said 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 time
of arguing the main matter, has been negatived.
60. With regard to the said principle, the context in which it was
B laid down in the decision by a learned Single Judge in Jain Studios Ltd.
(supra), has already been noted. The said principle, as stated, cannot
be treated as one that is cast in stone to apply irrespective of facts.
Illustrations come to the fore where it is better related to the factual
context and not as an immutable axiom not admitting of exceptions.
Take a case where a Writ of Mandamus is sought for after a demand
C is made. The demand is placed on record and is not even controverted.
In the main proceeding, Mandamus is refused on the ground that there
is no demand. It amounts to denial of relief. But the verdict is clearly
afflicted with palpable error, and if the complaint is made in a review
about the denial of relief on a ground which is patently untenable,
D certainly, a review would lie. There can be many other examples where
the denial of relief is palpably wrong and self-evident. It is different, if
on an appreciation of evidence or applying the law, and where two views
are possible, relief is refused. In fact, broadly, denial of relief can occur
in two situations. There are situations where the grant of relief itself is
discretionary. There are other situations where if a certain set of facts
E are established, the plaintiff/appellant cannot be told off the gates. A
defendant, who appeals against a time-barred suit being decreed,
establishes that a suit is time-barred, and the facts, as stated in the
judgment itself, unerringly point to such premise. If still, the Appellate
Court decrees the suit and denies relief to the defendant/appellant, can
it be said that a review will not lie? The answer can only be that a
F
review will lie.
61. To test the hypothesis that on the facts this Court was wrong
and manifestly so in declining in not following the dicta of the
Constitution Bench in Lalita Kumari (supra), a reverse process of
reasoning can be employed to appreciate the matter further. Can it be
G said that refusing to follow a Constitution Bench, laying down the
response of the Officers to a complaint alleging the commission of a
cognizable offence, has not been observed in its breach? If the review
petition, in other words, is rejected, in substance this Court would be
upholding its judgment which when placed side-by-side with the
H pronouncement of the Constitution Bench in Lalita Kumari (supra), the
YASHWANT SINHA v. CENTRAL BUREAU OF 971
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
two judgments cannot be squared. It must co-exist despite the patent A
departure, the impugned judgment manifests from the law laid down
by the Constitution Bench. But that being impossible, the Constitution
Bench must prevail and the impugned judgment stand overwhelmed to
the extent it is inconsistent. It may be true that in view of the fact that
four writ petitions were heard together, this Court has proceeded to
B
focus on the merits of the matters itself undoubtedly from the standpoint
of the limited judicial review which it could undertake in a matter of
the nature in question. On the basis of the said exercise, the Court has
concluded that there were no materials for the Court to interfere. But
this is a far cry from holding that it will not follow the mandate of the
Constitution Bench of this Court in regard to the steps to be undertaken C
by the Officer on receipt of a complaint purporting to make out the
commission of a cognizable offence. This Court may declare that it was
non-suiting the petitioners seeking judicial review, having regard to the
absence of materials which would have justified holding the award of
the contract in question vulnerable. It would not mean that it is either
D
precluded or that it was not duty-bound to still direct that the law laid
down by the Constitution Bench in Lalita Kumari (supra) be conformed
to.
62. If the complaint of the petitioner does make out the
commission of the cognizable offence and FIR is to be registered and
matter investigated, it will be no answer to suggest that this Court, has E
approved of the matter in judicial review proceedings under Article 32
of the Constitution and making it clear that entire exercise must be
viewed from the prism of the limited judicial review the Court
undertakes in such proceedings and this Court would end up paying
less than lip service to the law laid down by the Constitution Bench in F
Lalita Kumari (supra).
63. As far as the judicial review of the award of the contract is
concerned, apart from the fact that a review does not permit
reappreciation of the materials, there is the aspect of the petitioner
seeking judicial review approaching the court late in the day. There is G
also the aspect relating to the court’s jurisdiction not extending to permit
it to sit in judgment over the wisdom of the Government of the day,
particularly in matters relating to purchase of the goods involved in this
case. Therefore, in regard to review, sought in relation to the findings
relating to the judicial review, they cannot be found to be suffering from
palpable errors. H
972 SUPREME COURT REPORTS [2019] 17 S.C.R.
A 64. Though, the stand of the Government of India has been
noticed, which is the second respondent in Writ Petition (Criminal) No.
298 of 2018, the party, which has a say in the matter or rather a duty
in the matter in terms of the law laid down by this Court in Lalita Kumari
(supra), is the first respondent, viz., Central Bureau of Investigation
(CBI) before which petitioners have moved the Exhibit P1-complaint.
B
It is quite clear that the first respondent, the premiere investigating
agency in the country, is expected to act completely independent of the
Government of the day. The Government of India cannot speak on
behalf of the first respondent. Whatever that be, the fact remains that
a decision in terms of what is laid down in Lalita Kumari (supra), is to
C be taken.
65. One objection, which has apparently weighed with my learned
and noble Brother, is that, this Court, having dealt with the merits of
the case, there could be no occasion for directing the compliance in
terms of Lalita Kumari (supra) by the first respondent. Reasoning of
D the Court has been noticed. This Court has approached the matter
proclaiming that it was doing so in the context of somewhat constricted
power of judicial review. It is further made clear that the Court found
that it is neither appropriate nor is it within the experience of this Court
to step into the arena of what is technically feasible. This Court also
did not find any substantial material on record to show it to be a case
E
of commercial favouritism to any party by the Indian Government as
the option to choose the IOP did not rest with the Indian Government.
In the concluding paragraph, it was clearly mentioned that the Court’s
views were primarily from the standpoint of exercise of jurisdiction under
Article 32 of the Constitution, which was invoked in this case.
F
66. The question would, therefore arise, whether in such
circumstances, the relief sought in Writ Petition (Criminal) No. 298 of
2018, seeking compliance with Lalita Kumari (supra), was wrongly
declined. Differently put, the question would arise whether the
petitioners, having participated in the proceedings and inviting the Court
G to pronounce on the merits as well and cannot persuade the Court to
take a different view on the merits, could still ask the Court to find an
error and that too a grave error in not heeding to the prayer in Writ
Petition (Criminal) No. 298 of 2018.
67. As noticed earlier, it is one thing to say that with the limited
H judicial review, available to the Court, it did not find merit in the case
YASHWANT SINHA v. CENTRAL BUREAU OF 973
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
of the petitioners regarding failure to follow the DPP, presence of over- A
pricing, violation of Offset Guidelines to favour a party, and another
thing to direct action on a complaint in terms of the law laid down by
this Court. It is obvious that this Court was not satisfied with the material
which was placed to justify a decision in favour of the petitioners. It is
also apparent that the Court has reminded itself of the fact that it was
B
neither appropriate nor within the experience of the Court to step into
the arena. It is equally indisputable that the entire findings are to be
viewed from the standpoint of the nature of the jurisdiction it exercised.
There are no such restrictions and limitations on an Officer investigating
a case under the law. Present a case, making out the commission of
cognizable offence, starting with the lodging of the FIR after, no doubt, C
making a preliminary inquiry where it is necessary, the fullest of
amplitude of powers under the law, no doubt, are available to the Officer.
The discovery of facts by Officer carrying out an investigation, is
completely different from findings of facts given in judicial review by
a Court. The entire proceedings are completely different. D
68. In the impugned judgment, under the heading “Offsets”, there
is, at paragraph 28, reference to the complaint that favouring the Indian
Business Group, has resulted in an offence being committed under the
Prevention of Corruption Act. This Court extracted Clause (4.3) of the
Offset Clause which provides that OEM/Vendor, Tier-1 Sub-Vendor will
be free to select the Indian Offset Partner for implementing the offset E
obligation provided it has not been barred from doing business with the
Ministry of Defence. This Court dealt with the same contentions in
paragraph 32 of the impugned judgment, which reads as follows:
“32. It is no doubt true that the company, Reliance Aerostructure
Ltd., has come into being in the recent past, but the press release F
suggests that there was possibly an arrangement between the
parent Reliance Company and Dassault starting from the year
2012. As to what transpired between the two corporates would
be a matter best left to them, being matters of their commercial
interests, as perceived by them. There has been a categorical G
denial, from every side, of the interview given by the former
French President seeking to suggest that it is the Indian
Government which had given no option to the French Government
in the matter. On the basis of materials available before us, this
appears contrary to the clause in DPP 2013 dealing with IOPs
which has been extracted above. Thus, the commercial H
974 SUPREME COURT REPORTS [2019] 17 S.C.R.
A arrangement, in our view, itself does not assign any role to the
Indian Government, at this stage, with respect to the engagement
of IOP. Such matter is seemingly left to the commercial decision
of Dassault. That is the reason why it has been stated that the
role of the Indian Government would start only when the vendor/
OEM submits a formal proposal, in the prescribed manner,
B
indicating details of IOPs and products for offset discharge. As
far as the role of HAL, insofar as the procurement of 36 aircrafts
is concerned, there is no specific role envisaged. In fact, the
suggestion of the Government seems to be that there were some
contractual problems and Dassault was circumspect about HAL
C carrying out the contractual obligation, which is also stated to be
responsible for the non-conclusion of the earlier contract.”
69. The very first statement in paragraph 32 would appear to
point to the Court taking into account Press Release suggesting that
there was possibly an arrangement between the parent Reliance
D Company and Dassault starting from the year 2012. It is stated as to
what transpired between the two Corporates would be best left to them.
In this regard, in the Review Petition, it is pointed out that this Court
has grossly erred in confusing Reliance Industries of which Mr. Mukesh
Ambani is the Chairman with that of Reliance Infrastructure of which
Mr. Anil Ambani is the Chairman. It is further contended that Mr. Anil
E Ambani’s Reliance Infrastructure is the parent company of Reliance
Aerostructure Limited (RAL), which is the beneficiary of the Offset
Contract, and there is no possibility of any arrangement between
Reliance Infrastructure Limited with Dassault Aviation in 2012. There
appears to be considerable merit in the case of the petitioners that in
F this regard, this Court had fallen into clear error that there was possibly
an arrangement between the parent Reliance Company and Dassault
dated back to the year 2012. The parent Reliance Company which was
referred in the judgment is Reliance Industries which is a completely
different corporate body from Reliance Infrastructure which appears,
according to the petitioners, to be the parent company of RAL.
G Thereafter, there is reference to the denial of the interview by the
Former French President. It is further noted that on the basis of the
materials, the commercial arrangement does not assign any role to the
Indian Government at this stage with reference to the arrangement of
the IOP. After making certain observations about HAL and role of the
H Indian Government starting only when the Vendor/OEM submitted a
YASHWANT SINHA v. CENTRAL BUREAU OF 975
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
formal proposal, this Court went on to make the observation contained A
in paragraph 33 which has already been extracted.
70. From the standpoint of the jurisdiction in judicial review
proceedings and under Article 32 of the Constitution, as also absence
of any substantial material to show to be a case of commercial
favouritism, it may be true that the findings other than which has been B
referred to may not disclose a palpable error. This Court’s lack of
experience of what is technically feasible, as noted by the Court, has
weighed with it.
POWERS OF POLICE OFFICER WIDER AND
DIFFERENT FROM THAT OF WRIT COURT C
71. The ‘statutory right of the police to investigate about a
cognizable offence’ is well settled. In King-Emperor v. Nazir Ahmad
Khwaja25 , the Privy Council has, inter alia, held as follows:
“In India as has been shown there is a statutory right on the part
of the police to investigate the circumstances of an alleged D
cognizable crime without requiring any authority from the judicial
authorities, and it would as their Lordships think, be an
unfortunate result if it should be held possible to interfere with
those statutory rights by an exercise of the inherent jurisdiction
of the court. The functions of the judiciary and the police are E
complementary not overlapping and the combination of individual
liberty with a due observance of law and order is only to be
obtained by leaving each to exercise its own function, always of
course subject to the right of the Court to intervene in an
appropriate case when moved under S. 491 of the C.P.C. to give
directions in the nature of habeas corpus. In such a case as the F
present, however, the Courts functions begin when a charge is
preferred before it and not until then. …”
72. Following the same, this Court in M.C. Abraham and another
v. State of Maharashtra and others26, held as follows:
G
“13. This Court held in the case of J.A.C. Saldanha [(1980) 1
SCC 554 : 1980 SCC (Cri) 272] that there is a clear-cut and
well-demarcated sphere of activity in the field of crime detection
25
AIR 1945 PC 18
26
(2003) 2 SCC 649 H
976 SUPREME COURT REPORTS [2019] 17 S.C.R.
A and crime punishment. Investigation of an offence is the field
exclusively reserved by the executive through the police
department, the superintendence over which vests in the State
Government. It is the bounden duty of the executive to
investigate, if an offence is alleged, and bring the offender to
book. Once it investigates and finds an offence having been
B
committed, it is its duty to collect evidence for the purpose of
proving the offence. …”
73. The Police Officer is endowed with wide powers. Nothing
that constricted or limited this Court in the impugned judgment, applies
to an Officer who has undertaken an investigation into the commission
C of a cognizable offence. In fact, in this case, the first respondent-CBI
is the premiere investigation agency of the country. It is equipped to
undertake all forms of investigations, be it technical or otherwise. The
factors which concerned this Court can be recapitulated to bring out
the true role of an Investigator. This Court held, it is neither appropriate
D nor within the Court’s experience to step into what is technical feasible
or not. No such limitation applies to an Investigator of a cognizable
offence. What is important is that it is the duty of the Investigating
Officer to collect all material, be it technical or otherwise, and thereafter,
submit an appropriate report to the court concerned, be it a final report
or challan depending upon the materials unearthed. This Court relied
E on absence of substantial material. This is not a restriction on the
Investigating Officer. Far from it, the very purpose of conducting an
investigation on a complaint of a cognizable offence being committed,
is to find material. There can be no dispute that the first respondent is
the premiere investigating agency in the country which assumedly
employs state of the art techniques of investigation. Professionalism of
F
the highest quality, which embraces within it, uncompromising
independence and neutrality, is expected of it. Again, the restriction
which underlies the impugned judgment is the limited scope of judicial
review and also the writ jurisdiction under Article 32 of the Constitution.
It is clear as a mountain stream that both these considerations are totally
G irrelevant for an Officer who has before him a complaint making out
the commission of a cognizable offence.
74. However, the directions contained in paragraph 120 of the
Constitution Bench decision in Lalita Kumari (supra) must be further
appreciated. In this case, the petitioners in Writ Petition (Criminal) No.
H 298 of 2018, have indeed moved an elaborate written complaint before
YASHWANT SINHA v. CENTRAL BUREAU OF 977
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
the first respondent-CBI. The complaint that is made, attempts to make A
out the commission of a cognizable offences under the Prevention of
Corruption Act. Paragraph 120.1 of Lalita Kumari (supra), declares
registration of FIR is mandatory if information discloses commission
of a cognizable offence. The Constitution Bench debarred any
preliminary inquiry in such a situation. It is apposite that paragraph 120.5
B
is noticed at this stage. This Court held that the scope of the preliminary
inquiry is not to verify the veracity or otherwise of the information
received but it is only to ascertain whether the information reveals any
cognizable offence. Coming back to paragraph 120.2, it is laid down
by this Court that if the information does not disclose a cognizable
offence but indicates the necessity for an inquiry, a preliminary inquiry C
may be conducted only to ascertain whether cognizable offence is
disclosed or not. It is beyond dispute that the offences which are
mentioned in the complaint filed by the petitioners in Writ Petition
(Criminal) No. 298 of 2018 are cognizable offences. Again, coming back
to paragraph 120.3 in Lalita Kumari (supra) read with paragraphs 120.2
D
and 120.5, if the inquiry discloses commission of a cognizable offence,
the FIR must be registered. Where, however, the preliminary inquiry
ends in closing the complaint, the first informant must be informed in
writing forthwith and not later than a week. That apart, reasons, in brief,
must also be disclosed.
75. Paragraph 120.6 deals with the type of cases in which E
preliminary inquiry may be made. Corruption cases are one of the
categories of cases where a preliminary inquiry may be conducted. Also,
cases where there is abnormal delay or laches in initiating criminal
prosecution, for example over three months delay in reporting the matter
without satisfactorily explaining the reasons for the delay. As can be F
noticed from paragraph 120.6, medical negligence cases, matrimonial
disputes, commercial offences are also cases in which a preliminary
inquiry may be made. In order to appreciate the scope of paragraph
120.6, it is necessary to advert to paragraphs 115 to 119, which read
as follows:
G
“Exceptions
115. Although, we, in unequivocal terms, hold that Section 154
of the Code postulates the mandatory registration of FIRs on
receipt of all cognizable offences, yet, there may be instances
where preliminary inquiry may be required owing to the change H
978 SUPREME COURT REPORTS [2019] 17 S.C.R.
A in genesis and novelty of crimes with the passage of time. One
such instance is in the case of allegations relating to medical
negligence on the part of doctors. It will be unfair and inequitable
to prosecute a medical professional only on the basis of the
allegations in the complaint.
B 116. In the context of medical negligence cases, in Jacob
Mathew [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1:
2005 SCC (Cri) 1369], it was held by this Court as under: (SCC
p. 35, paras 51-52)
“51. We may not be understood as holding that doctors can never
C be prosecuted for an offence of which rashness or negligence
is an essential ingredient. All that we are doing is to emphasise
the need for care and caution in the interest of society; for, the
service which the medical profession renders to human beings
is probably the noblest of all, and hence there is a need for
protecting doctors from frivolous or unjust prosecutions. Many
D a complainant prefer recourse to criminal process as a tool for
pressurising the medical professional for extracting uncalled for
or unjust compensation. Such malicious proceedings have to be
guarded against.
52. Statutory rules or executive instructions incorporating certain
E guidelines need to be framed and issued by the Government of
India and/or the State Governments in consultation with the
Medical Council of India. So long as it is not done, we propose
to lay down certain guidelines for the future which should govern
the prosecution of doctors for offences of which criminal rashness
F or criminal negligence is an ingredient. A private complaint may
not be entertained unless the complainant has produced prima
facie evidence before the court in the form of a credible opinion
given by another competent doctor to support the charge of
rashness or negligence on the part of the accused doctor. The
investigating officer should, before proceeding against the doctor
G accused of rash or negligent act or omission, obtain an
independent and competent medical opinion preferably from a
doctor in government service, qualified in that branch of medical
practice who can normally be expected to give an impartial and
unbiased opinion applying the Bolam [Bolam v. Friern Hospital
H Management Committee, (1957) 1 WLR 582 : (1957) 2 All ER
YASHWANT SINHA v. CENTRAL BUREAU OF 979
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
118] test to the facts collected in the investigation. A doctor A
accused of rashness or negligence, may not be arrested in a
routine manner (simply because a charge has been levelled
against him). Unless his arrest is necessary for furthering the
investigation or for collecting evidence or unless the investigating
officer feels satisfied that the doctor proceeded against would
B
not make himself available to face the prosecution unless arrested,
the arrest may be withheld.”
117. In the context of offences relating to corruption, this Court
in P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1
SCC 595 : 1970 SCC (Cri) 240] expressed the need for a
preliminary inquiry before proceeding against public servants. C
118. Similarly, in Tapan Kumar Singh [CBI v. Tapan Kumar
Singh, (2003) 6 SCC 175 : 2003 SCC (Cri) 1305] , this Court
has validated a preliminary inquiry prior to registering an FIR only
on the ground that at the time the first information is received,
the same does not disclose a cognizable offence. D
119. Therefore, in view of various counterclaims regarding
registration or non-registration, what is necessary is only that the
information given to the police must disclose the commission of
a cognizable offence. In such a situation, registration of an FIR
is mandatory. However, if no cognizable offence is made out in E
the information given, then the FIR need not be registered
immediately and perhaps the police can conduct a sort of
preliminary verification or inquiry for the limited purpose of
ascertaining as to whether a cognizable offence has been
committed. But, if the information given clearly mentions the
commission of a cognizable offence, there is no other option but F
to register an FIR forthwith. Other considerations are not relevant
at the stage of registration of FIR, such as, whether the
information is falsely given, whether the information is genuine,
whether the information is credible, etc. These are the issues that
have to be verified during the investigation of the FIR. At the
stage of registration of FIR, what is to be seen is merely whether G
the information given ex facie discloses the commission of a
cognizable offence. If, after investigation, the information given
is found to be false, there is always an option to prosecute the
complainant for filing a false FIR.”
(Emphasis supplied) H
980 SUPREME COURT REPORTS [2019] 17 S.C.R.
A 76. As can be noticed that medical negligence cases constitute
an exception to the general rule which provides for mandatory
registration of FIR in respect of all cognizable offences. The Court, in
clear terms, held that it will be unfair and inequitable to prosecute a
medical professional only on the basis of the allegations in the complaint.
It relied on a decision of this Court in Jacob Mathew v. State of Punjab
B and another27.
77. In paragraph 117 of Lalita Kumar (Supra), this Court referred
to the decision in P. Sirajuddin, Etc. v. State of Madras, Etc.28 and took
the view that in the context of offences related to corruption in the said
decision, the Court has expressed a need for a preliminary inquiry before
C proceeding against public servants.
78. In P. Sirajuddin (supra), relied upon by the Constitution Bench
in Lalita Kumari (supra), what this Court has held, and which has
apparently been relied upon by the Constitution Bench though not
expressly referred to is the following statement contained in paragraph
D 17:
“17. … Before a public servant, whatever be his status, is publicly
charged with acts of dishonesty which amount to serious
misdemeanour or misconduct of the type alleged in this case and
a first information is lodged against him, there must be some
E suitable preliminary enquiry into the allegations by a responsible
officer. The lodging of such a report against a person, specially
one who like the appellant occupied the top position in a
department, even if baseless, would do incalculable harm not only
to the officer in particular but to the department he belonged to,
in general. …”
F
(Emphasis supplied)
79. In Lalita Kumari (supra), one of the contentions which was
pressed before the Court was that in certain situations, preliminary
inquiry is necessary. In this regard, attention of the Court was drawn
to CBI Crime Manual. The following paragraphs of the Lalita Kumari
G (supra) may be noticed, which read as follows:
“89. Besides, the learned Senior Counsel relied on the special
procedures prescribed under the CBI Manual to be read into
27
(2005) 6 SCC 1
H 28
(1970) 1 SCC 595
YASHWANT SINHA v. CENTRAL BUREAU OF 981
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
Section 154. It is true that the concept of “preliminary inquiry” A
is contained in Chapter IX of the Crime Manual of CBI.
However, this Crime Manual is not a statute and has not been
enacted by the legislature. It is a set of administrative orders
issued for internal guidance of the CBI officers. It cannot
supersede the Code. Moreover, in the absence of any indication
B
to the contrary in the Code itself, the provisions of the CBI Crime
Manual cannot be relied upon to import the concept of holding
of preliminary inquiry in the scheme of the Code of Criminal
Procedure. At this juncture, it is also pertinent to submit that CBI
is constituted under a special Act, namely, the Delhi Special Police
Establishment Act, 1946 and it derives its power to investigate C
from this Act.
90. It may be submitted that Sections 4(2) and 5 of the Code
permit special procedures to be followed for special Acts. Section
4 of the Code lays down as under:
“4.Trial of offences under the Indian Penal Code and other D
laws.—(1) All offences under the Indian Penal Code (45 of 1860)
shall be investigated, inquired into, tried, and otherwise dealt with
according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according to the same E
provisions, but subject to any enactment for the time being in force
regulating the manner or place of investigating, inquiring into, trying
or otherwise dealing with such offences.”
It is thus clear that for the offences under the laws other than
IPC, different provisions can be laid down under a special Act F
to regulate the investigation, inquiry, trial, etc. of those offences.
Section 4(2) of the Code protects such special provisions.
91. Moreover, Section 5 of the Code lays down as under:
“5.Saving.—Nothing contained in this Code shall, in the absence
of a specific provision to the contrary, affect any special or local G
law for the time being in force, or any special jurisdiction or
power conferred, or any special form of procedure prescribed,
by any other law for the time being in force.”
Thus, special provisions contained in the DSPE Act relating to
the powers of CBI are protected also by Section 5 of the Code. H
982 SUPREME COURT REPORTS [2019] 17 S.C.R.
A 92. In view of the above specific provisions in the Code, the
powers of CBI under the DSPE Act, cannot be equated with
the powers of the regular State Police under the Code.”
80. It is thereafter that under the caption “Exceptions”, the
Constitution Bench has proceeded to deal with offences relating to
B corruption as already noted and contained in paragraph 117 of Lalita
Kumari (supra), which has already been extracted. Chapter 8 of the
CBI Crime Manual deals with complaints and source of information.
Chapter 9 deals with preliminary enquiries. Clause (8.6) of Chapter 8
provides for the categories of complaints which are to be considered
C fit for verification. It provides, inter alia, complaints pertaining to subject
matters which fall within the purview of the CBI, either received from
official channels or from well-established and recognized organizations
or from individuals who are known and who can be traced and
examined. Undoubtedly, petitioners are known and can be traced and
examined. A complaint against a Minister or a Former Minister of the
D Union Government is to be put up before the Director of the CBI. The
complaints which are registered for verification, with the approval of
the competent authority, would only be subjected to secret verification.
Clause (9.1) of Chapter 9 contemplates that when a complaint is
received, inter alia, after verification and which may after verification
E indicates serious misconduct on the part of the public servant but is
not adequate to justify registration of a regular case, under the provisions
of Section 154 of the Cr.PC, a preliminary inquiry may be registered
after obtaining approval of the competent authority. Clause (9.1) also,
no doubt, deals with cases entrusted by this Court and the High Courts.
The Manual further contemplates that the preliminary inquiry will result
F
either in registration of regular cases or departmental action inter alia.
81. The Constitution Bench in Lalita Kumari(supra), had before
it, the CBI Crime Manual. It also considered the decision of this Court
in P. Sirajuddin (supra) which declared the necessity for preliminary
inquiry in offences relating to corruption. Therefore, the petitioners may
G not be justified in approaching this Court seeking the relief of registration
of an FIR and investigation on the same as such. This is for the reason
that one of the exceptions where immediate registration of FIR may
not be resorted to, would be a case pointing fingers at a public figure
and raising the allegation of corruption. This Court also has permitted
H preliminary inquiry when there is delay, laches in initiating criminal
YASHWANT SINHA v. CENTRAL BUREAU OF 983
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
prosecution, for example, over three months. A preliminary inquiry, it is A
to be noticed in paragraph 120.7, is to be completed within seven days.
82. The petitioners have not sought the relief of a preliminary
inquiry being conducted. Even assuming that a smaller relief than one
sought could be granted, there is yet another seemingly insuperable
obstacle. B
83. In the year 2018, the Prevention of Corruption (Amendment)
Act, 2018 (hereinafter referred to as ‘2018 Act’ for short) was brought
into force on 26.07.2018. Thereunder, Section 17A, a new Section was
inserted, which reads as follows:
C
“17A. (1) No police officer shall conduct any enquiry or inquiry
or investigation into any offence alleged to have been committed
by a public servant under this Act, where the alleged offence is
relatable to any recommendation made or decision taken by such
public servant in discharge of his official functions or duties,
without the previous approval— (a ) in the case of a person who D
is or was employed, at the time when the offence was alleged
to have been committed, in connection with the affairs of the
Union, of that Government; (b) in the case of a person who is
or was employed, at the time when the offence was alleged to
have been committed, in connection with the affairs of a State,
E
of that Government; (c) in the case of any other person, of the
authority competent to remove him from his office, at the time
when the offence was alleged to have been committed: Provided
that no such approval shall be necessary for cases involving
arrest of a person on the spot on the charge of accepting or
attempting to accept any undue advantage for himself or for any F
other person: Provided further that the concerned authority shall
convey its decision under this section within a period of three
months, which may, for reasons to be recorded in writing by such
authority, be extended by a further period of one month..
(Emphasis supplied) G
84. In terms of Section 17A, no Police Officer is permitted to
conduct any enquiry or inquiry or conduct investigation into any offence
done by a public servant where the offence alleged is relatable to any
recommendation made or decision taken by the public servant in
discharge of his public functions without previous approval, inter alia, H
984 SUPREME COURT REPORTS [2019] 17 S.C.R.
A of the authority competent to remove the public servant from his Office
at the time when the offence was alleged to have been committed. In
respect of the public servant, who is involved in this case, it is clause
(c), which is applicable. Unless, therefore, there is previous approval,
there could be neither inquiry or enquiry or investigation. It is in this
context apposite to notice that the complaint, which has been filed by
B
the petitioners in Writ Petition (Criminal) No. 298 of 2018, moved before
the first respondent-CBI, is done after Section 17A was inserted. The
complaint is dated 04.10.2018. Paragraph 5 sets out the relief which is
sought in the complaint which is to register an FIR under various
provisions. Paragraphs 6 and 7 of the complaint are relevant in the
C context of Section 17A, which reads as follows:
“6.We are also aware that recently, Section 17(A) of the act has
been brought in by way of an amendment to introduce the
requirement of prior permission of the government for
investigation or inquiry under the Prevention of Corruption Act.
D 7.We are also aware that this will place you in the peculiar
situation, of having to ask the accused himself, for permission to
investigate a case against him. We realise that your hands are
tied in this matter, but we request you to at least take the first
step, of seeking permission of the government under Section
E 17(A) of the Prevention of Corruption Act for investigating this
offence and under which, “the concerned authority shall
convey its decision under this section within a period of three
months, which may, for reasons to be recorded in writing by
such authority, be extended by a further period of one
month”.”
F
85. Therefore, petitioners have filed the complaint fully knowing
that Section 17A constituted a bar to any inquiry or enquiry or
investigation unless there was previous approval. In fact, a request is
made to at least take the first step of seeking permission under Section
17A of the 2018 Act. Writ Petition (Criminal) No. 298 of 2018 was
G filed on 24.10.2018 and the complaint is based on non-registration of
the FIR. There is no challenge to Section 17A. Under the law, as it
stood, both on the date of filing the petition and even as of today, Section
17A continues to be on the Statute Book and it constitutes a bar to any
inquiry or enquiry or investigation. The petitioners themselves, in the
H complaint, request to seek approval in terms of Section 17A but when
YASHWANT SINHA v. CENTRAL BUREAU OF 985
INVESTIGATION THR. ITS DIR. [K. M. JOSEPH, J.]
it comes to the relief sought in the Writ Petition, there was no relief A
claimed in this behalf.
86. Even proceeding on the basis that on petitioners complaint,
an FIR must be registered as it purports to disclose cognizable offences
and the Court must so direct, will it not be a futile exercise having regard
to Section 17A. I am, therefore, of the view that though otherwise the B
petitioners in Writ Petition (Criminal) No. 298 of 2018 may have made
out a case, having regard to the law actually laid down in Lalita Kumari
(supra), and more importantly, Section 17A of the Prevention of
Corruption Act, in a Review Petition, the petitioners cannot succeed.
However, it is my view that the judgment sought to be reviewed, would
not stand in the way of the first respondent in Writ Petition (Criminal) C
No. 298 of 2018 from taking action on Exhibit P1-complaint in
accordance with law and subject to first respondent obtaining previous
approval under Section 17A of the Prevention of Corruption Act.
87. Subject as hereinbefore stated, in regard to the other Petitions
and Applications, I agree with the proposed Order of Brother Justice D
Sanjay Kishan Kaul.
Ankit Gyan Matters disposed of.
E
F
G
H
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