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SUPREME COURT OF INDIA
RANJAN GOGOI, CJI., SANJAY KISHAN KAUL, K.M. JOSEPH, JJ.
Yashwant Sinha & Ors. – Petitioners
Versus
Central Bureau Of Investigation Through its Director & Anr. – Respondents
Review Petition (Crl.) No.46 of 2019, IN Writ Petition (Crl.) No.298 of 2018 (I.A. No. 69008 of 2019 – CLARIFICATION/DIRECTION, I.A. No. 69006 of 2019 – INTERVENTION APPLICATION, I.A. No. 71047 of 2019 – PRODUCTION OF RECORDS and I.A. No. 69009 of 2019 – STAY APPLICATION) WITH MA 58 of 2019 in W.P.(Crl.) No. 225 of 2018 (PIL-W) (I.A. No. 182576 of 2018 – CORRECTION OF MISTAKES IN THE JUDGMENT) R.P.(Crl.) No. 122 of 2019 in W.P.(Crl.) No. 297 of 2018 (PIL-W), MA 403 of 2019 in W.P.(Crl.) No. 298 of 2018 (PIL-W)(I.A. No. 29248 of 2019 – INITIATING CRIMINAL PROCEEDINGS U/S 340 OF CRPC), R.P.(C) No. 719 of 2019 in W.P.(C) No. 1205 of 2018 (PIL-W) CONMT.PET.(Crl.) No. 3 of 2019 in R.P.(Crl.) No. 46 of 2019 in W.P.(Crl.) No. 298 of 2018 (PIL-W), (I.A. No. 63168 of 2019 – EXEMPTION FROM FILING O.T., I.A. No.71678 of 2019 – EXEMPTION FROM FILING O.T. and I.A. No. 66253 of 2019 – EXEMPTION FROM FILING O.T.)
Decided on : 14-11-2019
Per Sanjay Kishan Kaul, J.
(a) Constitution of India - Article 137 - Correction of mistake - Judgment on 14.12.2018 in W.P. (Crl.) No. 225/2018 - Union of India seeking correction of an error in two sentences in para 25 of the judgment - Confusion arising on account of two portions of the paragraph referring to both what had been and what was proposed to be done - However, what the Court noted was to complete the sequence of facts and was not the rationale for the conclusion - Prayer accepted - Correction allowed. (Para 5, 6)
(b) Constitution of India - Articles 32, 137 - Judicial review - Decision making process - In matters of contract, procurement, etc. would vary with the subject matter of the contract and that there cannot be a uniform standard or depth of judicial review - Inappropriate to embark on a roving and fishing enquiry - As to reliance of the Government on alleged false document, Government has already sought and granted correction in para 25 of the Judgment under review - The issue does not survive - Not dealing with the prayer made by the petitioner for registration of an F.I.R. and investigation by the C.B.I. - On detailed consideration of the aspects of ‘Decision Making Process’, ‘Pricing’ and ‘Offsets’ on merit, no direction including that for registration of FIR was issued. (Para 12, 14, 16)
(c) Constitution of India - Article 32 - Petitioners consciously invoking process of Article 32 - Now it is not open to pray for applying an adjudication process other than that under Article 32. (Para 19)
(d) Constitution of India - Article 32 - Decision making process envisages debates and expert opinion - Opinions expressed in the course of the decision making process may be different from the decision taken - The final call is with the competent authority. (Para 20)
(e) Constitution of India - Article 32 - Petitioners endeavouring to construe themselves as an appellate authority to determine each aspect of the contract and call upon the Court to do the same - When competent authority makes the decision after considering and dealing with different views, no fault can be found. (Para 21)
(f) Constitution of India - Article 32 - Court is not expected to elaborately analyze each clause, peruse what may be the different opinions, and then take a call whether a final decision should or should not have been taken in such technical matters. (Para 22)
(g) Constitution of India - Article 32 - Decision of whom to engage as the offset partner was a matter left to the suppliers - No error. (Para 23)
(h) Code of Criminal Procedure, 1973 - Section 340 - In the writ petition no ground made out to initiate prosecution u/s 340. (Para 24)
(i) Contempt of Courts Act, 1971 - Section 12 r/w Article 129, Constitution of India - contempt petition against Rahul Gandhi for Attributing to Supreme Court to having held in consonance with what his discourse, i.e., that the Prime Minister of India stole money from the Air Force and gave it to Mr. Anil Ambani and that the Supreme Court had admitted that Mr. Modi had indulged in corruption and stating that the Supreme Court had said that the Chowkidar is a thief - Contemnor filing a 20 page affidavit with a large number of documents annexed rather than simply accepting the mistake and giving an unconditional apology - It was unfortunate for him to make such statement without verification or even perusing as to what was the order passed - In latter affidavit giving an unconditional apology - Supreme Court or for that matter no court should be dragged into political discourse valid or invalid, while attributing aspects to the Court which had never been held by the Court - Contempt proceeding dropped. (Para 31, 32, 33)
Per K.M. Joseph, J. (Concurring)
(j) Constitution of India - Article 137 r/w Order XLVII, Supreme Court Rules, 2013 - Review of Writ Petition (Criminal) No. 297, 298 and 1205 of 2018 - WP (Cri) 298 of 2018 Seeking relief of registering an FIR and to investigating the complaint made by the petitioners and submission of periodic status reports - WP (Cri) 297 of 2018 seeking relief of constituting an SIT under supervision of the Court - WP (Cri) 1205 of 2018 seeking direction to respondents to file 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 and to furnish the information with regard to the present cost of Rafale Fighter Jets and also the earlier cost of the Rafale Fighter - All these three writ petitions along with the one for which no review petition is filed were dismissed by the impugned judgment considering on merits the broad areas of (i) the decision-making process; (ii) difference in pricing; and (iii) the choice of IOP - Court not finding the issues of decision-making process, pricing and offsets in favour of the petitioners. (Para 8)
(k) Constitution of India - Article 137 r/w Order XLVII, Supreme Court Rules, 2013 - Jurisdiction of Supreme Court, to entertain a review petition in a civil matter, patterned on the power of the Court under Order XLVII Rule 1 of The Code of Civil Procedure, 1908 - In criminal matters, review lies on an error apparent on the face of record being established - The word “record” should not be confined in a narrow sense - Misconception by a court embraced within scope of expression “sufficient reasons” - Non-advertence to a pertinent and relevant provision of the Statute or applying an inapplicable statute would be a ground to seek review- Per incuriam - Review is not rehearing of an original matter - Even establishing another possible view would not suffice. (Para 19, 21, 27, 28, 29, 37, 44, 45)
(l) Supreme Court Rules, 2013 - Order XLVIII - Curative petition - Can be filed for reconsideration of the matter when review petition is not successful. (Para 38)
(m) Constitution of India - Article 137 - 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 - Also, will not be one or if it requires lengthy and complicated arguments to establish it - Review is not appeal in disguise. (Para 39, 40, 41)
(n) Constitution of India - Article 137 - Fresh material, to form basis of review, must be relevant and undermining the verdict, apart from the requirement that it could not be produced despite due diligence. (Para 46)
(o) Constitution of India - Article 137 - Review does not permit reappreciation of the materials - No palpable error in the Court not sitting in judgment over the wisdom of the Government in matters relating to purchase of the goods involved in this case. (Para 63)
(p) Constitution of India - Article 137 and 32 - Review sought on the ground that the court did not deal with a Constitution Bench decision in Lalita Kumari and the prayer based on it - Direction for registration of FIR on the complaint - Deciding the matter on merits does not mean that judgment of a Constitution Bench would not be followed - Court’s views in impugned judgment were primarily from the standpoint of exercise of jurisdiction under Article 32 - As regards ‘offset’ there has been an error in the Court confusing between Reliance Industries and Reliance Infrastructure (Para 65, 69)
(q) Constitution of India - Article 137 and 32 - Review sought on the ground that the court did not deal with a Constitution Bench decision in Lalita Kumari and the prayer based on it - Direction for registration of FIR on the complaint - Lalita Kumari holding that registration of FIR is mandatory if the complaint discloses a cognizable offence - However Police need to have a preliminary investigation for ascertaining whether the complaint discloses a cognizable offence - Instantly complaint against public servants under Prevention of Corruption Act, 1988 - Section 17A, Prevention of Corruption Act, 1988 prohibiting police from undertaking any investigation under the Act before obtaining permission from competent authority - Petitioners not challenging section 17A - The complaint sought request to be made for permission - However no such prayer instantly - Held, no case made out for directing registration of FIR following L K - CBI, to whom the complaint was made given liberty to proceed in accordance with law. (para 86)
Facts of the case:
These petitions - review, writ and contempt - pertain to what is known as Rafael case and utterance of Rahul Gandhi.
Finding of the Court:
No ground id made out for review.
Result: Review petition rejected, contempt proceeding dropped and other petitions/applications disposed of.
Key Points: - The judgment discusses the scope and maintainability of a review petition under Article 137, including grounds like error apparent on the face of the record and discovery of new matter (!) (!) (!) (!) . - It clarifies that in criminal matters, review lies on an error apparent on the face of the record and is not an appeal in disguise, with caution against re-arguing merits (curative aspects and limitations) (!) (!) (!) (!) (!) . - It outlines the parameters of review in civil matters vs. criminal matters, and references Order XLVII Rule 1 of CPC, including timelines and procedures for filing, circulation, and grounds for review (!) (!) (!) (!) (!) . - The decision emphasizes that fresh material must be relevant and could not have been produced despite due diligence, and that review cannot reweigh evidence or re-argue merits, especially in respect of national security/defence judgments where the court’s limited review applies (!) (!) (!) (!) (!) . - It cites Lalita Kumari and P. Sirajuddin to delineate when preliminary inquiries and FIRs are warranted or prohibited, affecting the scope of judicial review in review petitions (!) (!) (!) (!) . - It holds that a review petition in criminal matters must show palpable error on the face of the record; mere two views or new interpretations do not suffice (!) (!) (!) (!) . - It confirms the remedy of curative petition under Order XLVIII for rehearing when review fails, per constitutional guidelines (!) (!) . - It ultimately dismisses the review petitions in the Rafael/Mudra matter, reaffirming Article 32 review constraints (!) (!) (!) .
JUDGMENT :
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.
3. The Court had asked vide order dated 31.10.2018 to be apprised of the details/cost as also any advantage, which may have accrued on that account, in the procurement of the 36 Rafale fighter jets. The confidential note in the relevant portions stated as under:
“The Government has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC. Only a redacted version of the report is placed before the Parliament and in public domain.”
4. It is the submission of the learned Attorney General that the first sentence referred to the sharing of the price details with the CAG. But the second sentence qua the PAC referred to the process and not what had already transpired. However, in the judgment this portion had been understood as if it was already so done.
5. On hearing learned counsel for the parties, we are of the view that the confusion arose on account of two portions of the paragraph referring to both what had been and what was proposed to be done. Regardless, what we noted was to complete the sequence of facts and was not the rationale for our conclusion.
6. We are, thus, inclined to accept the prayer and the sentence in para 25 to the following effect - “The pricing details have, however, been shared with the Comptroller and Auditor General (hereinafter referred to as “CAG”), and the report of the CAG has been examined by the Public Accounts Committee (hereafter referred to as “PAC”). Only a redacted portion of the report was placed before the Parliament and is in public domain” should be replaced by what we have set out hereinafter:
“The Government has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC in the usual course of business. Only a redacted version of the report is placed before the Parliament and in public domain.”
7. The prayer is accordingly allowed.
8. The application stands disposed of.
R.P. (Crl.) No.46/2019 in WP (Crl.) No.298/2018 R.P.(Crl.) No. 122/2019 in W.P.(Crl.) No. 297/2018 (PIL-W) MA 403/2019 in W.P.(Crl.) No. 298/2018 (PIL-W) (I.A. No. 29248/2019 – INITIATING CRIMINAL PROCEEDINGS U/S 340 OF CRPC) R.P.(C) No. 719/2019 in W.P.(C) No. 1205/2018 (PIL-W)
9. The review petitions were listed for hearing in Court and elaborate submissions were made by learned counsel for the parties.
10. We may note that insofar as the preliminary objection raised by the Attorney General is concerned qua certain documents sought to be produced by the petitioners, that aspect was dealt with by our order dated 10.4.2019 and the said preliminary objection was overruled.
11. We cannot lose sight of the fact that unless there is an error apparent on the face of the record, these review applications are not required to be entertained. We may also note that the application under Section 340 of the Code of Criminal Procedure, 1973 partly emanates from an aspect which has been dealt with in our order passed today on the application for correction of the order filed by the Union of India.
12. We have elaborately dealt with the pleas of the learned counsel for the parties in our order dated 14.12.2018 under the heads of ‘Decision Making Process’, ‘Pricing’ and ‘Offsets’. However, before proceeding to deal with these aspects we had set out the contours of the scrutiny in matters of such a nature. It is in that context w
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