How Lalita Kumari and Section 17A of the Prevention of Corruption Act scuppered a probe into the Rafale Deal: Justice KM Joseph’s judgment

Aditya AK November 14 2019

The Supreme Court today dismissed the review petitions filed in the Rafale case as being devoid of merit.

The judgment rendered by a three-judge Bench of Chief Justice of India Ranjan Gogoi and Justices Sanjay Kishan Kaul and KM Joseph saw no “error apparent” on the face of its judgment passed last year.

The separate, concurring judgment penned by Justice KM Joseph - going into 91 pages - offers a deep dive into one of the contentions raised by the petitioners.

The review petition filed by Yashwant Sinha, Arun Shourie and Prashant Bhushan had raised the following criticism of the Court’s December 2018 judgment:

“The judgement of the Hon’ble three judge bench disregards the judgement of the Constitutional Bench in Lalitha Kumari’s case which mandates the registration of FIR when the complaint prima facie discloses a cognizable offence within the time specified.”

In the Lalita Kumari judgment, a five-judge Constitution Bench of the Supreme Court (including Justice Ranjan Gogoi, as he then was) had laid down a number of guidelines with respect to investigation of criminal cases. These included:

i) 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.

ii) 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…

…v) 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.

Thus, the Rafale review petitioners had contended that an FIR ought to be filed in the case so as to test the veracity of the facts made in the complaint.

Before delving into the merits of the Lalita Kumari argument, Justice Joseph highlights the limited scope of judicial review the Court undertakes in such proceedings - a point that was raised in the original judgment. However, 

“There are no such restrictions and limitations on an Officer investigating a case under the law.”

Noting that the powers of the police are much wider from those of a court in this regard, he went on to state that there was not enough information for the Court to direct the registration of an FIR in the Rafale case.

As per the Lalita Kumari judgment, however, if the information does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted. Justice Joseph notes in his judgment that the review petitioners did not pray for such preliminary inquiry.

Even assuming that the petitioners sought for such preliminary inquiry, there is another obstacle in the way of initiating criminal proceeding against public servants. This obstacle takes the shape of Section 17A of the Prevention of Corruption Act.

Section 17A was brought in via a 2018 amendment to the POC Act. It states that a police officer cannot conduct an inquiry into an alleged offence committed by a public servant without prior sanction from government officials. In this light, Justice Joseph notes,

“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.”

Thus, Joseph J went on to hold,

"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.”

Quite significantly, the judge made it clear that the Rafale judgment would not come in the way of investigating authorities should they choose to probe the complaint.

“However, it is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent 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.”

[Read the judgment]

Rafale review judgment