The Supreme Court on Thursday dismissed the review petitions on the Rafale deal but one of the three judges said the CBI was free to register an FIR for alleged corruption.

In a stunning blow to the Narendra Modi government, which focused on celebrating the overall verdict that saw no ground for initiating prosecution, Justice K.M. Joseph said in a concurrent but separate judgment that the dismissal of the petitions on the judicial side would not be a constraint to the investigative agency.

Separate judgments hardly make any practical difference if they reflect a minority dissenting opinion but concurring judgments cannot be dismissed so lightly.

Justice Joseph, who as chief justice of Uttarakhand High Court had quashed President’s rule — recommended in the state by the Modi government — in 2016 and whose elevation to the Supreme Court was delayed by the Centre in 2018, did not differ with the overall view of the bench on the review petitions.

Justice Joseph made the following points while concluding that the CBI was free to pursue a complaint:

• A five-judge constitution bench of the same court had in 2014 made the registration of an FIR mandatory when a complaint of a cognisable offence was filed.

(The Telegraph special correspondent in New Delhi adds: On October 4, 2018, former Union minister Arun Shourie and lawyer Prashant Bhushan had met the then CBI director Alok Verma seeking the registration of an FIR under the Prevention of Corruption Act against Prime Minister Narendra Modi, among others, for allegedly abusing his office in facilitating the Rafale deal. On October 24, the Modi government sent Verma on leave after an unparalleled midnight operation. On Thursday, asked about Justice Joseph’s judgment, the CBI spokesperson said: “We have nothing to say.”)

• It was neither appropriate nor within the experience of the court to step into the arena on the Rafale deal. Only a professional police officer can do that.
• A judicial review and an investigation by a police officer are completely different. A police officer is endowed with wide powers. Nothing that constricted or limited the court applies to an officer.
• The CBI is equipped to undertake all forms of investigations, technical or otherwise.
• Citing the 2014 judgment, Justice Joseph said the scope of the preliminary inquiry by the investigating agency was not to verify the veracity of the information but only to ascertain whether the information revealed any cognisable offence.
• If the information does not reveal a cognisable offence but indicates the need for an inquiry, a preliminary probe may be conducted only to ascertain whether a cognisable offence was committed.
• It is beyond dispute that the offences mentioned in the complaint filed by the petitioners are cognisable offences.
• If the preliminary inquiry ends in closure of the complaint, the first informant must be informed in writing, and not later than a week. That apart, reasons, in brief, must also be disclosed, the judge said, citing the 2014 judgment.

Justice Joseph concurred with the views of the other two judges — Justices Ranjan Gogoi and Sanjay Kishan Kaul — that the review petitions seeking a recall of the December 18 judgment ought to be dismissed on the judicial side since the court has limited jurisdiction in going into a contract entered into by the government.

The concurrence makes it all the more difficult for the spin masters of the government to dismiss outright Justice Joseph’s judgment, which has the following sentence.

Justice Joseph added: “However, it is my view that the judgment sought to be reviewed would not stand in the way of the first respondent (the CBI)… 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.”

Under Section 17A, a police officer can probe a public servant only after obtaining prior approval of the competent authority (who was empowered to remove the public servant at the time the offence was committed).

Justice Joseph noted that while dealing with the writ petitions filed by former ministers Yashwant Sinha and Arun Shourie and lawyer Prashant Bhushan and others, the apex court focused on the merits from the standpoint of the limited judicial review it could undertake. On the basis of such an exercise, the court had concluded that there was no material before it to justify interference.

“But this is a far cry from holding that it 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 cognisable offence,” Justice Joseph said.

The 2014 ruling by a five-judge constitution bench that Justice Joseph has relied on so extensively came in Lalita Kumari vs State of UP. The apex court had then mandated that the registration of an FIR was compulsory on the complaint of a cognisable 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 be conformed to.

“If the complaint of the petitioner does make out the commission of the cognisable offence, the 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,” Justice Joseph wrote.

Justice Joseph said that as far as the judicial review of the award of the contract was concerned, the petitioners had approached the court very late since the deal related to the year 2015.

Yet this cannot be a reason for the CBI not to proceed with the registration of an FIR on the basis of the complaint lodged by Sinha and others with regard to alleged corruption in the deal, the judge said.

“It is quite clear that the first respondent (the CBI), the premier 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.”

Justice Joseph said “it is obvious that this court was not satisfied with the material which was placed to justify a decision in favour of the petitioner” but drew a distinction between its findings and those that might be thrown up by a probe conducted by a policing agency.

The entire proceedings are different. “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 cognisable offence.

“In fact, in this case, the first respondent (the CBI) is equipped to undertake all forms of investigations, be it technical or otherwise.”