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

- **Citation:** [2019] 17 S.C.R. 917
- **Court:** Supreme Court of India
- **Decided:** 2018-12-14
- **Bench:** Ranjan Gogoi, Sanjay Kishan Kaul, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/yashwant-sinha-ors-v-central-bureau-of-investigation-through-its-director-anr-33683
- **Pages:** 69

## Headnote

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
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
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.
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
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
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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
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
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.
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
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
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.
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
case, premise their case on the judgment of the Supreme Court in
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Lalita Kumari v. Government of

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YASHWANT SINHA & ORS.
v.
CENTRAL BUREAU OF INVESTIGATION
THROUGH ITS DIRECTOR & ANR.
(Review Petition (Crl.) No. 46 of 2019)
In
(Writ Petition (Crl.) No.298 of 2018)
NOVEMBER, 14, 2019
[RANJAN GOGOI, CJI, SANJAY KISHAN KAUL
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
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
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.
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
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
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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
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
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.
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
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
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.
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
case, premise their case on the judgment of the Supreme Court in
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Lalita Kumari v. Government of Uttar Pradesh and others - It is
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
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
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
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
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
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
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.
YASHWANT SINHA v. CENTRAL BUREAU OF
INVESTIGATION THR. ITS DIR.
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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
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
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
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
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
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
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
not the restriction on the Investigating Officer.
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Disposing of the matters, the Court
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
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
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
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] [937C]
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
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
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
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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
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
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] [938A-B]
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
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
have determined the necessity and quantity of aircrafts; (b)
absence of Sovereign Guarantee granted by France despite
requirement of the Defence Procurement Procedure ('DPP'); (c)
the oversight of objections of three expert members of the Indian
Negotiating Team ('INT') regarding certain increase in the
benchmark price; and (d) the induction of Reliance Aerostructure
Limited ('RAL') as an offset partner. [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
the review petitions are without any merit and are accordingly
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dismissed, once again, re-emphasising that our original decision
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
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
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]
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]
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
and they also provide the premise for review:
Justice above all. While a review petition has not been
understood as an appeal in disguise and a mere erroneous
decision may not justify a review, a decision which betrays an
error which is apparent, does entitle the court to exercise its
jurisdiction under Article 137 of the Constitution. The founding
fathers were conscious that this Court was the final Court.
There are two values, which in any system of law, may collide.
On the one hand, recognizing that men are not infallible and the
courts are manned by men, who are prone to err, there must be
YASHWANT SINHA v. CENTRAL BUREAU OF
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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,
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]
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
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
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
under Article 137 of the Constitution being enlarged. However,
when the Court is invited to exercise its power of review, this
aspect may also be borne in mind, viz., that unlike the other
courts from which an appeal may be provided either under the
Constitution or other laws, or by special leave under Article 136
of the Constitution, no appeal lies from the judgment of this
Court, and it is in that sense, the final Court. The underlying
assumption for the principle that a review is not an appeal in
disguise, being that the decision is appealable, is really not
available in regard to a decision rendered by this Court, is all
that is being pointed out. [Para 43] [963-E-F]
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14. A review petition is maintainable if the impugned
judgment discloses an error apparent on the face of the record.
Unlike a proceeding in Certiorari jurisdiction, wherein the error
must not only be apparent on the face of the record, it must be
an error of law, which must be apparent on the face of the record,
for granting review under Article 137 of the Constitution read
with Order XLVII Rule 1 of the CPC, the error can be an error
of fact or of law. No doubt, it must be apparent on the face of
record. Such an error has been described as a palpable error or
glaring omission. As to what constitutes an error apparent on
the face of record, is a matter to be found in context of the facts
of each case. [Para 44] [963-G-H; 964-A-B]
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
provisions, the judgment would, in fact, be per incuriam. No
doubt, the concept of per incuriam is apposite in the context of
its value as the precedent but as between the parties, certainly
it would be open to urge that a judgment rendered, in ignorance
of the applicable law, must be reviewed. The judgment, in such
a case, becomes open to review as it would betray a clear error
in the decision. [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]
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
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.
YASHWANT SINHA v. CENTRAL BUREAU OF
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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
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
overwhelmed to the extent it is inconsistent. It may be true that
in view of the fact that four writ petitions were heard together,
this Court has proceeded to focus on the merits of the matters
itself undoubtedly from the standpoint of the limited judicial
review which it could undertake in a matter of the nature in
question. On the basis of the said exercise, the Court has
concluded that there were no materials for the Court to interfere.
But this is a far cry from holding that it will not follow the
mandate of the Constitution Bench of this Court in regard to
the steps to be undertaken by the Officer on receipt of a
complaint purporting to make out the commission of a cognizable
offence. This Court may declare that it was non-suiting the
petitioners seeking judicial review, having regard to the absence
of materials which would have justified holding the award of the
contract in question vulnerable. It would not mean that it is either
precluded or that it was not duty- bound to still direct that the
law laid down by the Constitution Bench in Lalita Kumari be
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
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]
[971-E-F]
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20. As far as the judicial review of the award of the contract
is concerned, apart from the fact that a review does not permit
reappreciation of the materials, there is the aspect of the
petitioner seeking judicial review approaching the court late in
the day. There is also the aspect relating to the court's
jurisdiction not extending to permit it to sit in judgment over
the wisdom of the Government of the day, particularly in matters
relating to purchase of the goods involved in this case.
Therefore, in regard to review, sought in relation to the findings
relating to the judicial review, they cannot be found to be
suffering from palpable errors. [Para 63] [971-G-H]
21. As noticed earlier, it is one thing to say that with the
limited judicial review, available to the Court, it did not find merit
in the case of the petitioners regarding failure to follow the DPP,
presence of over-pricing, violation of Offset Guidelines to favour
a party, and another thing to direct action on a complaint in terms
of the law laid down by this Court. It is obvious that this Court
was not satisfied with the material which was placed to justify a
decision in favour of the petitioners. It is also apparent that the
Court has reminded itself of the fact that it was neither
appropriate nor within the experience of the Court to step into
the arena. It is equally indisputable that the entire findings are
to be viewed from the standpoint of the nature of the jurisdiction
it exercised. There are no such restrictions and limitations on
an Officer investigating a case under the law. Present a case,
making out the commission of cognizable offence, starting with
the lodging of the FIR after, no doubt, making a preliminary
inquiry where it is necessary, the fullest of amplitude of powers
under the law, no doubt, are available to the Officer. The
discovery of facts by Officer carrying out an investigation, is
completely different from findings of facts given in judicial review
by a Court. The entire proceedings are completely different.
[Para 67] [972-H; 973-A-D]
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
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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.
Nothing that constricted or limited this Court in the impugned
judgment, applies to an Officer who has undertaken an
investigation into the commission of a cognizable offence. In fact,
in this case, the first respondent-CBI is the premiere
investigation agency of the country. It is equipped to undertake
all forms of investigations, be it technical or otherwise. The
factors which concerned this Court can be recapitulated to bring
out the true role of an Investigator. This Court held, it is neither
appropriate nor within the Court's experience to step into what
is technical feasible or not. No such limitation applies to an
Investigator of a cognizable offence. What is important is that it
is the duty of the Investigating Officer to collect all material, be
it technical or otherwise, and thereafter, submit an appropriate
report to the court concerned, be it a final report or challan
depending upon the materials unearthed. This Court relied on
absence of substantial material. This is not a restriction on the
Investigating Officer. Far from it, the very purpose of conducting
an investigation on a complaint of a cognizable offence being
committed, is to find material. There can be no dispute that the
first respondent is the premiere investigating agency in the
country which assumedly employs state of the art techniques of
investigation. Professionalism of the highest quality, which
embraces within it, uncompromising independence and
neutrality, is expected of it. Again, the restriction which underlies
the impugned judgment is the limited scope of judicial review
and also the writ jurisdiction under Article 32 of the Constitution.
It is clear as a mountain stream that both these considerations
are totally irrelevant for an Officer who has before him a
complaint making out the commission of a cognizable offence.
[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
took the view that in the context of offences related to corruption
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in the said decision, the Court has expressed a need for 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
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
which fall within the purview of the CBI, either received from
official channels or from well-established and recognized
organizations or from individuals who are known and who can
be traced and examined. Undoubtedly, petitioners are known and
can be traced and examined. A complaint against a Minister or
a Former Minister of the Union Government is to be put up
before the Director of the CBI. The complaints which are
registered for verification, with the approval of the competent
authority, would only be subjected to secret verification. Clause
(9.1) of Chapter 9 contemplates that when a complaint is
received, inter alia, after verification and which may after
verification indicates serious misconduct on the part of the public
servant but is not adequate to justify registration of a regular
case, under the provisions of Section 154 of the Cr.PC, a
preliminary inquiry may be registered after obtaining approval
of the competent authority. Clause (9.1) also, no doubt, deals
with cases entrusted by this Court and the High Courts. The
Manual further contemplates that the preliminary inquiry will
result either in registration of regular cases or departmental
action inter alia. [Para 80] [982-B-F]
26. The Constitution Bench in Lalita Kumari, had before
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
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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
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]
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
decision taken by the public servant in discharge of his public
functions without previous approval, inter alia, of the authority
competent to remove the public servant from his Office at the
time when the offence was alleged to have been committed. In
respect of the public servant, who is involved in this case, it is
clause (c), which is applicable. Unless, therefore, there is
previous approval, there could be neither inquiry or enquiry or
investigation. [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
fact, a request is made to at least take the first step of seeking
permission under Section 17A of the 2018 Act. Writ Petition
(Criminal) No. 298 of 2018 was filed on 24.10.2018 and the
complaint is based on non-registration of the FIR. There is no
challenge to Section 17A. Under the law, as it stood, both on
the date 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] [984F-H; 985-A]
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30. 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. Therefore,
though otherwise the petitioners in Writ Petition (Criminal) No.
298 of 2018 may have made out a case, having regard to the
law actually laid down in Lalita Kumari, 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
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.:
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
(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
(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
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
YASHWANT SINHA v. CENTRAL BUREAU OF
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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 :
[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.
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
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
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.
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
PC 18 - referred to.
Case Law Reference
[2013] 14 SCR 713
relied on
Para 13
[2018] 7 SCR 898
referred to
Para 14
[1980] 2 SCR 889
relied on
Para 21
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[1999] 3 Suppl. SCR 540
referred to
Para 22
[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
[1955] SCR 520
relied on
Para 26
[1971] 3 SCR 748
relied on
Para 28
(1986) Supp SCC 530
referred to
Para 29
(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
[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
[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
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
[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.
YASHWANT SINHA v. CENTRAL BUREAU OF
INVESTIGATION THR. ITS DIR.
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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
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,
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.,
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.
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
O.T. and I.A. No. 66253/2019 - EXEMPTION FROM
FILING O.T.)
1. Allowed subject to just exception.
MA 58/2019 in W.P.(Crl.) No. 225/2018 (PIL-W) (I.A. No.
182576/2018 - CORRECTION OF MISTAKES IN THE
JUDGMENT)
2. The Union of India has filed the present application seeking
correction of what they claim to be an error, in two sentences in para
25 of the judgment delivered by this Court on 14.12.2018. This error is
stated to be on account of a misinterpretation of some sentences in a
note handed over to this Court in a sealed cover.
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3. The Court had asked vide order dated 31.10.2018 to be
apprised of the details/cost as also any advantage, which may have
accrued on that account, in the procurement of the 36 Rafale fighter
jets. The confidential note in the relevant portions stated as under:
"The Government has already shared the pricing details with the
CAG.