india

Updated: Nov 15, 2019 02:18 IST

Justice KM Joseph in his concurrent judgment on the Rafale review petitions said the Central Bureau of Investigation can, if it so wishes, approach the government seeking permission to investigative the complaint in the case, which was interpreted by some as the judge holding out the possibility of an investigation by the agency into it, although others maintained that the judge was merely laying out the principles of law.

To be sure, justice Joseph’s concurrent judgement did not go against the majority one -- it too dismissed the reviews -- but said the court’s original 2018 judgment will not stand in the way of the CBI “from taking action in accordance with law, subject to obtaining previous approval under Section 17A of the Prevention of Corruption Act (PCA).”

Section 17A, mandates government approval be sought before investigation into offences by a public servant during the discharge of public functions

Petitioner and advocate Prashant Bhushan claimed justice Joseph’s verdict opened the doors for a possible FIR in the case. “Though we see CBI as a caged parrot, the CBI should move and seek government permission.” Congress leader Rahul Gandhi said justice Joseph “opened a huge door into investigation” of the case and asked for a Joint Parliamentary Committee to be set up. In response, lawyer Nikhil Mehra said on Twitter that the judge was simply reiterating the law -- that while a magistrate can dismiss an application seeking investigation, the investigating officer can still take it up. In this case, Mehra added, the IO would also have to get the government’s sanction under section 17A.

The 2013 Lalita Kumari verdict says registration of FIR is mandatory if the information discloses a cognizable offence, and a preliminary inquiry may be conducted if the information indicates such a need.

Justice Jospeh said the petitioners first filed a complaint with CBI on October 4 and subsequently a petition seeking an investigation into the Rafale deal knowing that a bar under Section 17A exists for proceedings against public servants.

But in the petition, they did not seek a direction that the government give permission to CBI to probe the deal.