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CBI can still take action on Rafale complaints: Justice KM Joseph

Updated: Nov 15, 2019, 11.55 AM IST
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Adding to the discomfiture of the NDA government and bolstering the petitioners’ claim for registration of FIR in the Rafale case, Justice Joseph said, “It is beyond dispute that the offences which are mentioned in the complaint filed by the petitioners are cognizable offences.”

Highlights

  • Justice Joseph said dismissal of review petitions would not preclude the CBI from taking action as per law on the complaint disclosing commission of alleged cognizable offences, which was lodged with it on October 4, 2018, by former BJP leaders Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan
  • “This is not a restriction on the investigating officer, far from it," Justice K M Joseph said
(This story originally appeared in on Nov 15, 2019)
NEW DELHI: Justice K M Joseph, while concurring with CJI Ranjan Gogoi and Justice Sanjay K Kaul to throw out petitions seeking review of the clean chit to the NDA government in the Rafale deal, packed enough ammunition in his 75-page separate judgment that would allow the opposition to keep firing for months.

Justice Joseph said dismissal of review petitions would not preclude the CBI from taking action as per law on the complaint disclosing commission of alleged cognizable offences, which was lodged with it on October 4, 2018, by former BJP leaders Yashwant Sinha and Arun Shourie and advocate Prashant Bhushan. However, the CBI would have to obtain prior permission from competent authorities before proceeding against public servants, he said. However, his views being in minority may not get the traction with CBI.

CJI Gogoi and Justice Kaul needed just eight pages to reason out why they were trashing the review petition by Sinha, Shourie and Bhushan. But Justice Joseph delved deep into the controversy, examined the petitioners’ criminal complaint filed before the CBI on October 4 last year, and came out with a conclusion that though there was not enough material and technical expertise with the SC to entertain the petitions, it was still open to the CBI or any investigating agency to probe the matter.

Interestingly, in the December 14, 2018, judgment by the same three-judge bench giving a clean chit to the NDA government, Justice Joseph did not make any attempt to analyse the content of the petitioners’ complaint before the CBI seeking investigation into alleged wrongdoing in the Rafale deal. But on Thursday, he made a detailed analysis of the SC’s 2014 judgment in Lalita Kumari case that mandated mandatory registration of FIR if a complaint disclosed commission of cognizable offence.

Adding to the discomfiture of the NDA government and bolstering the petitioners’ claim for registration of FIR in the Rafale case, Justice Joseph said, “It is beyond dispute that the offences which are mentioned in the complaint filed by the petitioners are cognizable offences.”

He said the SC had dismissed the review petitions as they did not disclose enough material to warrant a direction for a CBI probe. He also said it was difficult for the court to enter into a technical issue like Rafale deal as it did not possess necessary expertise.

“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 no dispute that the first respondent (CBI) is the premier investigating agency in the country which assumedly employs state of the art techniques of investigation,” he said.

Justice Joseph, whose appointment as SC judge was stalled by the NDA government ostensibly because he ruled against imposition of President’s rule in Uttarakhand, said the petitioners were aware of the bar under Section 17(A) of the Prevention of Corruption Act where no FIR could be registered by the CBI against a public servant for any decision taken in discharge of his official duty without prior sanction of competent authority.

He said the petitioners never challenged the validity of Section 17A, which impedes the CBI from even initiating a preliminary inquiry against the persons named in the petitioners’ complaint to the agency. “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 may have made out a case, having regard to the law laid down in Lalita Kumari and more importantly Section 17A of the PC Act, the petitioners cannot succeed,” he said.

However, he said the dismissal of review petitions “would not stand in the way of CBI from taking action on the petitioners’ complaint in accordance with law and subject to the agency obtaining previous approval under Section 17A of the Prevention of Corruption Act”.

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