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Reportable  

IN THE SUPREME COURT OF INDIA  CIVIL/CRIMINAL ORIGINAL JURISDICTION  

Review Petition (Crl.) No.46 of 2019  

IN  

Writ Petition (Crl.) No.298 of 2018  

YASHWANT SINHA & ORS.           ….Petitioners  

Versus  

CENTRAL BUREAU OF INVESTIGATION  Through its DIRECTOR & ANR.        ….Respondents    (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)      WITH    MA 58/2019 in W.P.(Crl.) No. 225/2018 (PIL-W) (I.A. No.  182576/2018 – CORRECTION OF MISTAKES IN THE  JUDGMENT)    R.P.(Crl.) No. 122/2019 in W.P.(Crl.) No. 297/2018 (PIL-W)

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

J U D G M E N T  

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)   

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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.  

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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.  

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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

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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 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 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 satisfy itself with the correctness of the  

decision making process.  

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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 the aforesaid  

three aspects, that too to a limited extent, this Court did not consider it  

appropriate to embark on a roving and fishing enquiry.  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 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 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

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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 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 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 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

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on the aircraft or not and what further pricing should be added has to be  

left to the best judgment of the 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.  

 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 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 making  

process, which may be different from the decision taken, but then any

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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.  

 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 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

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complied with before the contract was entered into.  It would defeat the  

very purpose of debate in the 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  

elaborate exercise of analyzing each clause, perusing what may be the  

different opinions, then taking a call whether a final decision should or  

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 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.  

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24. It is for the aforesaid reasons also that we find that there 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 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, 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  

from the Air Force and gave it to Mr. Anil Ambani and that the Supreme

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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 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 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 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.”  

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28. The acceptance of such an affidavit was opposed by the petitioner,  

a BJP Member of Parliament, in the contempt petition.  It 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  

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  

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.  

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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 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 wisdom dawned on  

the counsel only during the course of arguments thereafter when a  

subsequent affidavit dated 8.5.2019 was filed.  We 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 held by the Court.   

Certainly Mr. Gandhi needs to be more careful in future.

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 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 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)    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.  

..….….…………………….C.J.I.     [Ranjan Gogoi]  

   ...……………………………J.       [Sanjay Kishan Kaul]  

 New Delhi.  November 14, 2019.    

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REPORTABLE    

 IN THE SUPREME COURT OF INDIA  

INHERENT JURISDICTION  

 REVIEW PETITION (CRIMINAL) NO. 46 OF 2019  

IN  

WRIT PETITION (CRIMINAL) NO. 298 OF 2018    

YASHWANT SINHA AND OTHERS     ... PETITIONER(S)    

VERSUS  

CENTRAL BUREAU OF INVESTIGATION  

THROUGH ITS DIRECTOR AND ANOTHER    ... RESPONDENT(S)    

AND CONNECTED MATTERS  

J U D G M E N T  

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.

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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 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:  

“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 directing the  

Respondent No.1 to investigate the  

offences disclosed in the said complaint

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in a time bound manner and to submit  

periodic status reports to the Court.  

c. Issue writ of mandamus or any other  

appropriate writ 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 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  

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 the  

supervision of the Hon’ble Supreme  

Court with following mandate:

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i. to investigate the reasons for  cancellation of earlier deal  

for the purchase of 126 Rafale  

Fighter Jets.  

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 view of the  

earlier price of Rs.526 crores  

per Fighter Jets alongwith  

requisite equipments, services  

and 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;  

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.  

v. As to why name of ‘Hindustan  Aeronautics Limited’ was  

removed from the deal?

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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?  

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 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 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 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

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which was cancelled on 24.06.2015  

by the Govt. of India.  

(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 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 the respondents to  

file the details of the agreement  

entered into between the Union of India  

and Government of France with regard to

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the purchase of 36 Rafale Fighter Jets  

in a sealed envelope.  

b) Issue an appropriate writ or order or  

direction directing 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 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;”  

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THE IMPUGNED JUDGMENT   

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 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 follows:  

“15. It is in the backdrop of the above  

facts and the 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

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areas of concern, namely, (i) the  

decision-making process; (ii) difference in  

pricing; and (iii) the choice of IOP.”  

(Emphasis supplied)  

8. Thereafter, this Court had proceeded to consider the  

decision-making process, pricing and offsets and did not  

find in favour of the petitioners. It is after the  

discussion, as aforesaid, it is to be noted that 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 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 Government, as the  

option to choose IOP does not rest with the  

Indian Government.  

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Conclusion  

34. In view of our findings on all the  

three aspects, and having 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, 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)  

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.  

10. As far as petitioners in Review Petition (Criminal) No.  

46 of 2019 is concerned, the complaint appears to be that

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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 (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 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 (RFP) was,  

accordingly, issued. There were six vendors. In 2011, it

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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 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 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 incorporated as  

Reliance Defence Limited on 28.03.2015, just twelve days

13  

before the new deal was suddenly announced on 10.04.2015.  

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, 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 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  

 1 (2014) 2 SCC 1

14  

a direction to follow the command of Lalita Kumari (supra)  

and to register an FIR as they have filed a complaint 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  

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 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

15  

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 referred to.  

14. The stand of the Government of India is that the Review  

Petitions are meritless. This Court has elaborately  

considered the matter 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 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  

 2 (2018) 8 SCC 149

16  

contended that the CAG has conclusively held that the basis  

of the benchmark by the INT was unrealistic.   

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. 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.  

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

17  

Indian Offset Partners, there was no reason to intervene.  

Once this Court has held that perception of individuals  

cannot 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  

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 rules made  

under Article 145, the Supreme Court shall  

have 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:

18  

“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 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 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 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 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 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,

19  

direct the refund to the petitioner of the  

court-fee paid on the application in whole or  

in part, as it may think fit.  

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 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  

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 allowed, or  

  (c) by a decision on a reference from  

a Court of Small Causes,  

20  

and who, from the discovery of new and  

important matter or 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  

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 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 which the judgement  

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 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

21  

Constitution Bench of this Court laid down 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 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  

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 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  

 3 (1980) 4 SCC 680

22  

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 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 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 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.”  

(Emphasis supplied)  

22. In Suthendraraja Alias Suthenthira Raja Alias Santhan  

and others v. State Through DSP/CBI, SIT, Chennai 4 ,  

 4 (1999) 9 SCC 323

23  

referring to the judgement in P.N. Eswara Iyer (supra), it  

was, inter alia, held that the 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 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 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 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  

 5 (2006) 4 SCC 78

24  

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 adequate  

and efficacious remedy and the court should  

exercise the power to review its order with  

the greatest circumspection. …”  

(Emphasis supplied)  

24. Jain Studios Ltd. Through Its President v. Shin  

Satellite Public 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, 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  

 6(2006) 5 SCC 501  7(2006) 2 SCC 628  

25  

been negatived. Once such a prayer had been  

refused, no review 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  

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 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  

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  

 8 (2008) 8 SCC 612

26  

within its knowledge and even after the  

exercise of due diligence, the same could not  

be produced before the court earlier.”  

(Emphasis supplied)  

26. In Moran Mar Basselios Catholicos and another v. Most  

Rev. Mar Poulose Athanasius and others9, 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 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 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  

 9 AIR 1954 SC 526

27  

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 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 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 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 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)

28  

27. It is pertinent to notice that this Court did not  

confine the 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”.   

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 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  

 10 AIR 1971 SC 2162

29  

light it throws on the interpretation of  

sub-section (1).”  

(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.  

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 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. …”  

(Emphasis supplied)  

11 1986 (Supp) SCC 530  12(1975) 1 SCC 674

30  

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 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 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 7, 1967 is accordingly set aside and  

the order dated May 25, 1965, is restored. The  

appeal is allowed but without costs.”  

(Emphasis supplied)  

 13 (1979) 4 SCC 389

31  

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 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 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  

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 SCC (Cri) 279 : (1971) 3 SCR  

748, 750]. The Court may also 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  

 14(1980) 2 SCC 167

32  

its judgments has been conferred on the  

Supreme Court by Article 137 of the  

Constitution, and that 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 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 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 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 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

33  

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.”  

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.  

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.  

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  

 15 1993 Supp (4) SCC 595

34  

fairness. If the Court finds that the order was  

passed under a mistake and it would 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 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 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 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 acceptance of human fallibility.

35  

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  

provision and no rules were framed by the  

highest court indicating 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 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 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 in …. The  

House of Lords exercises a similar power  

of rectifying mistakes made in drawing up  

its own judgments, and this Court must

36  

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 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:  

“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.”  

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 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

37  

subject to which any judgment or order may be  

reviewed. In exercise 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 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 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 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  

 16 (2000) 6 SCC 224

38  

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).  

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 are maintainable  

as stipulated by the statute:  

20.1. When the review will be  

maintainable:  

(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;  

(iii) Any other sufficient reason.  

 17 (2012) 7 SCC 200  18 (2013) 8 SCC 320  19 (2014) 7 SCC 663  20 (2017) 8 SCC 518.

39  

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  

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]  

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.  

(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.  

(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.

40  

(vi) The mere possibility of two views  

on the subject cannot be a ground for  

review.  

(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.  

(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, 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 Constitution Bench judgement in Rupa Ashok

41  

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].  

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 Laxminarayan  

Hegde and others v. Mallikarjun Bhavanappa Tirumale22).  

This principle is equally applicable to a review petition  

also.  

 21 (2002) 4 SCC 388  22 AIR 1960 SC 137

42  

40. On a conspectus of the 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 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

43  

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.  

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 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.

44  

42. 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.  

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 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.

45  

44. 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. 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:  

“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  

 23 AIR 1955 SC 233

46  

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 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 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, 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 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)  

47  

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 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.  

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.  

47. The dismissal of a special leave petition takes place  

at two levels. In the first place, the Court may dismiss

48  

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 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 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 to consider, is the effect of the impugned  

judgment not dealing with a binding decision rendered by

49  

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:  

“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  

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 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

50  

must be supplied to the first informant  

forthwith and not 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 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.  

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  

(b) Commercial offences  

(c) Medical negligence cases  

(d) Corruption cases  

(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 conditions which may  

warrant preliminary inquiry.  

51  

120.7. While ensuring and protecting the  

rights of the accused 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 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.”  

(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 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

52  

Bench of this Court which was 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 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 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

53  

relief 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.   

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:  

“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 that when a case is decided,

54  

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 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 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  

55. The Law Commission, in fact, in the said Report  

reasoned 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 indefinitely. This impliedly would mean that when  

a court decides a case, 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 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.   

 24 AIR 1969 KER 186

56  

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. 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  

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 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

57  

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. 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.   

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 said judgment, this Court, in the  

decision reported in Kamlesh Verma (supra), summarising the  

principle, came to declare in paragraph 20.2(ix), that

58  

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 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 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, certainly, a review  

would lie. There can be many other examples where the denial  

of relief is palpably wrong and self-evident. It is

59  

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 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 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 said that refusing to follow

60  

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 (supra), 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

61  

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 (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 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

62  

end up paying less than lip service to the law laid down  

by the Constitution Bench in 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 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.   

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),             

63  

is the first respondent, viz., Central Bureau of  

Investigation (CBI) before which petitioners have moved the  

Exhibit P1-complaint. 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 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 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

64  

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 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.  

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 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

65  

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 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,

66  

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.  

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 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:  

67  

“32. It is no doubt true that the  

company, Reliance Aerostructure Ltd., has  

come into being in the recent past, but the  

press release 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 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 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, 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 carrying  

out the contractual obligation, which is also  

stated to be responsible for the  

non-conclusion of the earlier contract.”

68  

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 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 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 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

69  

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. 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 Indian Government starting only when the  

Vendor/OEM submitted a formal proposal, this Court went on  

to make the observation contained 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 referred

70  

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      

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  

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  

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  

 25 AIR 1945 PC 18

71  

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  

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 others 26 , held as  

follows:  

“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 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 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  

 26 (2003) 2 SCC 649

72  

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

73  

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.  

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. 298 of 2018, have indeed  

moved an elaborate written complaint before the first  

respondent-CBI. The complaint that is made, attempts to  

make out the commission of a cognizable offences under the

74  

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 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 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 and 120.5, if the  

inquiry discloses commission of a cognizable offence, the

75  

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  

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 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:  

“Exceptions  

115. Although, we, in unequivocal  

terms, hold that Section 154 of the Code

76  

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  

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.  

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 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 a complainant  

prefer recourse to criminal process as  

a tool for pressurising the medical  

professional for extracting uncalled  

for or unjust compensation. Such

77  

malicious proceedings have to be guarded  

against.  

52. Statutory rules or executive  

instructions incorporating certain  

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  

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 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 Management Committee, (1957) 1  

WLR 582 : (1957) 2 All ER 118] test to  

the facts collected in the  

investigation. A doctor accused of

78  

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 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.  

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.  

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

79  

offence. In such a situation, registration of  

an FIR is mandatory. However, if no  

cognizable offence is made out in 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 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 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)  

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

80  

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 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  

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 17:    

 27 (2005) 6 SCC 1  28 (1970) 1 SCC 595

81  

“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  

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. …”  

(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 (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 Section 154. It is true that the concept  

of “preliminary inquiry” is contained in  

Chapter IX of the Crime Manual of CBI.  

However, this Crime Manual is not a statute

82  

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 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 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 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 provisions, but subject to any

83  

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 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 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.  

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.”  

84  

80. 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 (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  

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

85  

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.  

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 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

86  

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.   

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.   

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:  

“17A. (1) No police officer shall  

conduct any enquiry or inquiry or  

investigation into any offence alleged to

87  

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 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, 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 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)  

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

88  

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. It is in this  

context apposite to notice that the complaint, which has  

been filed by 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 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

89  

requirement of prior permission of the  

government for investigation or inquiry  

under the Prevention of Corruption Act.  

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 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”.”    

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 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

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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.  

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 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

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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.  

87. Subject as hereinbefore stated, in regard to the other  

Petitions and Applications, I agree with the proposed Order  

of Brother Justice Sanjay Kishan Kaul.        

.............J.  

                                        (K.M. JOSEPH)  

New Delhi,  

November 14, 2019.