Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ has dismissed the the petition seeking review of it’s 2018 order where the bench had dismissed the petition seeking probe in the much talked about Rafale Deal by holding that there was no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government.
The Court held that the review petitions are without any merit and are accordingly dismissed, once again, re-emphasising that it’s original decision was based within the contours of Article 32 of the Constitution of India.
SK Kaul, J, writing for himself and Gogoi, CJ said,
“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.”
On the aspect of pricing, the Court held that 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. It, further, said,
“As to what should be loaded on the aircraft or not and what further pricing should be added has to be left to the best judgment of the competent authorities.”
On the decision making process, the Court said that there were undoubtedly opinions expressed in the course of the decision making process, which may be different from the decision taken, but then any decision making process envisages debates and expert opinion and the final call is with the competent authority, which so exercised it.
On the argument by the petitioner that the prayer made was for registration of an F.I.R. and investigation by the C.B.I., which has not been dealt with and the contract has been reviewed prematurely by the Judiciary without the benefit of investigation and inquiry into the disputed questions of facts, the Court said that it wasn’t a fair submission as,
“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.”
KM Joseph, J, in a separate but concurring opinion, wrote on the issue of registration of FIR
“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 the fault of the party if the court chose not even to touch upon it.”
He, however, noticed that the petitioners have filed the complaint fully knowing that Section 17A of the Prevention of Corruption Act, 1988 constitutes a bar to any inquiry or enquiry or investigation unless there was previous approval.
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.
Noticing the law as specified under Section 17A, he said,
“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.”
He, hence, held that though otherwise the petitioners may have made out a case, having regard to the law actually laid down in Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, and more importantly, Section 17A of the Prevention of Corruption Act, in a Review Petition, the petitioners cannot succeed.
In the 2018 verdict, the Court had said that they interacted with the senior Air Force Officers who answered Court queries including that of the acquisition process and pricing. Stating that it cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126 and cannot possibly compel the Government to go in for purchase of 126 aircraft, the Court said
“Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircrafts, of which, we have none. It would not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”
Read more about the 3-judge bench verdict in Rafale Deal case here.
