The Supreme Court order doesn't bar the CBI from taking action on allegations of corruption in the Rafale fighter jet deal, Justice KM Joseph wrote in his ruling on review petitions seeking a probe in the case.
Justice Joseph, in a separate but concurring with the ruling of the other two judges of a Supreme Court bench in the case, said the investigating agency was free to take action in accordance with the law on complaints of corruption.
He agreed with Chief Justice Ranjan Gogoi and Justice SK Kaul on the final judgement but wrote his separate opinion in the case.
CBI can take action on complaints alleging corruption in the deal if it gets approval under Section 17A of the Prevention of Corruption Act, Justice Joseph said.
Justice Joseph observed that the review petitioners - former Union ministers Yashwant Sinha and Arun Shourie, and advocate Prashant Bhushan -- have otherwise made out a case for acting on the complaint. The judge, however, said no direction in that regard can be given by the court.
He said that the petitioners have filed the complaint before CBI fully knowing that Section 17A constituted a bar to any inquiry or investigation unless there was previous approval.
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The Judge noted that the petitioners have not sought any relief in the writ petition for prior approval as per Section 17A.
"In fact, a request is made to at least take the first step of seeking permission under Section 17A of the 2018 Act. Writ Petition was filed on October 24, 2018, and the complaint is based on non-registration of the FIR. There is no challenge to Section 17A. Under the law, as it stood, both on the date of filing the petition and even as of today, Section 17A continues to be on the Statute Book and it constitutes a bar to any inquiry or enquiry or investigation," he said.
"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," Justice Joseph noted.
He further wrote: "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."
As per the directions given in Lalitakumari case judgement, FIR in corruption cases can be registered only after a preliminary enquiry, but Justice Joseph said the petitioners have not sought the relief of a preliminary enquiry being conducted.
"However, it is my view that the judgment sought to be reviewed, would not stand in the way of the CBI from taking action on complaint in accordance with the law and subject to CBI obtaining previous approval under Section 17A of the Prevention of Corruption Act," he added.
The three-judge bench today dismissed the review petition filed against its December 14, 2018 judgement upholding the deal of 36 Rafale fighter jets from France.