2019 (11) TMI 1775 - SC - Indian Laws

Rectification of mistake - error apparent on the face of record or not - 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 in not heeding to the prayer in Writ Petition (Criminal) No. 298 of 2018? HELD THAT - 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. 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 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. From the standpoint of the jurisdiction in judicial review proceedings and under Article 32 of the Constitution, as also absence of any substantial material to show to be a case of commercial favouritism, it may be true that the findings other than which has been referred to may not disclose a palpable error. This Court s lack of experience of what is technically feasible, as noted by the Court, has weighed with it. Powers of Police Officer wider and different from that of writ court - HELD THAT - The Police Officer is endowed with wide powers. Nothing that constricted or limited this Court in the impugned judgment, applies to an Officer who has undertaken an investigation into the commission of a cognizable offence. In fact, in this case, the first respondent-CBI is the premiere investigation agency of the country. It is equipped to undertake all forms of investigations, be it technical or otherwise. The factors which concerned this Court can be recapitulated to bring out the true role of an Investigator. This Court held, it is neither appropriate nor within the Court s experience to step into what is technical feasible or not. No such limitation applies to an Investigator of a cognizable offence. What is important is that it is the duty of the Investigating Officer to collect all material, be it technical or otherwise, and thereafter, submit an appropriate report to the court concerned, be it a final report or challan depending upon the materials unearthed. There can be no dispute that the first respondent is the premiere investigating agency in the country which assumedly employs state of the art techniques of investigation. Professionalism of the highest quality, which embraces within it, uncompromising independence and neutrality, is expected of it. Again, the restriction which underlies the impugned judgment is the limited scope of judicial review and also the writ jurisdiction under Article 32 of the Constitution. It is clear as a mountain stream that both these considerations are totally irrelevant for an Officer who has before him a complaint making out the commission of a cognizable offence. 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 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 - 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. Application disposed off.

Summary

Issues Involved:
1. Correction of mistakes in the judgment.
2. Initiating criminal proceedings under Section 340 of CrPC.
3. Review of the decision-making process, pricing, and offsets in the procurement of Rafale fighter jets.
4. Contempt proceedings against a political leader for misrepresenting the Court's judgment.

Issue-wise Detailed Analysis:

1. Correction of Mistakes in the Judgment:
The Union of India sought correction of an error in two sentences in paragraph 25 of the judgment delivered on 14.12.2018. The error was due to a misinterpretation of a note handed over in a sealed cover. The Court accepted the prayer, noting that the confusion arose from the paragraph referring to both past and proposed actions. The corrected sentence clarified that the pricing details were shared with the CAG, examined by the PAC in the usual course of business, and only a redacted version of the report was placed before Parliament and in the public domain. The application was accordingly allowed and disposed of.

2. Initiating Criminal Proceedings under Section 340 of CrPC:
The review petitions included an application under Section 340 of the CrPC. The Court noted that unless there is an error apparent on the face of the record, review applications are not required to be entertained. The Court had elaborately dealt with the pleas under the heads of 'Decision Making Process', 'Pricing', and 'Offsets' in the order dated 14.12.2018. The Court found no substantial material to show commercial favoritism and emphasized that the decision-making process involves debates and expert opinions, with the final call being made by the competent authority. The Court concluded that there was no ground for initiating prosecution under Section 340 CrPC and dismissed the review petitions.

3. Review of Decision-Making Process, Pricing, and Offsets:
The Court reiterated that the extent of permissible judicial review in matters of contract and procurement varies with the subject matter. The necessity for the aircrafts was not in dispute, and the Court had embarked on a limited inquiry to satisfy itself with the correctness of the decision-making process. The Court found that the pricing of the basic aircraft was competitively marginally lower and that the internal mechanism of such pricing would take care of the situation. The Court noted that different opinions in the decision-making process are natural and that the final decision rests with the competent authority. The review petitions were dismissed as the Court found no error apparent on the face of the record.

4. Contempt Proceedings Against a Political Leader:
The contempt petition was based on statements made by a political leader alleging that the Supreme Court had held that the Prime Minister was a thief. The leader's affidavit claimed the comments were made in a rhetorical flourish and without reading the order. The Court noted the seriousness of the matter and the inadequacy of the initial affidavit. However, a subsequent affidavit tendered an unconditional apology. The Court emphasized the need for careful statements by persons in important positions and closed the contempt proceedings with a word of caution for the contemnor to be more careful in the future.

Conclusion:
The applications for correction of mistakes and review petitions were disposed of, with the Court emphasizing the limited scope of judicial review in such matters. The contempt proceedings were closed following an unconditional apology from the contemnor. The judgment highlights the Court's approach to maintaining the integrity of its decisions while balancing the need for accountability and the proper conduct of public discourse.