CBI can probe Rafale deal: Justice Joseph

Dassault Aviation’s Rafale fighter jets sit on an assembly line in Merignac, southwestern France, on January 14, 2019.   | Photo Credit: AFP

The Supreme Court’s judgment upholding the Rafale deal will not bar the CBI from acting on a corruption complaint in the defence purchase, provided the agency gets prior sanction from the competent authority to launch an investigation, Justice K.M. Joseph held in his separate opinion in the Rafale review case on Thursday.

“It is my view that the judgment sought to be reviewed would not stand in the way of the first respondent [CBI] from taking action on the complaint in accordance with the law and after obtaining previous approval under Section 17A of the Prevention of Corruption Act,” Justice Joseph observed.

CBI can probe Rafale deal: Justice Joseph

However, the judge held that filing a writ or a review in the Supreme Court was not the right way for the petitioners to go about it.


At one point, the judge wonders whether the effort to probe the corruption complaint filed by former Union Ministers Yashwant Sinha, Arun Shourie and senior lawyer Prashant Bhushan would end up as a “futile exercise” as the sanctioning authority under Section 17A of the anti-graft law is the government itself. But, nevertheless, Justice Joseph said the agency could seek prior sanction and investigate the Rafale deal if the complaint indicates commission of cognisable offences.


Justice Joseph said the CBI is bound by a Constitution Bench decision in the Lalita Kumari case, which had held that registration of FIR was mandatory if the information discloses commission of a cognisable offence. If the information does not disclose a cognisable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognisable offence is disclosed or not. If the inquiry discloses the commission of a cognisable offence, the FIR must be registered.


In cases where preliminary inquiry ends in closing the complaint, a copy of the closure report indicating the reasons for it should be supplied to the complainant, the Lalita Kumari judgment had held.

“CBI has to act completely independent of the government of the day. The government cannot speak on behalf of the CBI,” he said.

The CBI officer has wide powers to inquire into the complaint. In fact, factors which constrict the Supreme Court in review or writ jurisdiction petition does not apply to a CBI officer. CBI has formidable technical resources.

“CBI is the premier investigating agency which employs state-of-the-art techniques of investigation… 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,” Justice Joseph said.

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Printable version | Jul 28, 2021 10:59:42 PM |

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