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 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 INVESTIGATION THR. ITS DIR.
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. 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. INVESTIGATION THR. ITS DIR.
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 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 INVESTIGATION THR. ITS DIR.
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):
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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