Pinnacle court says no to recall of CBI investigation order Hindustan Zinc Divestment

The Top court today dismissed a plea by the union government seeking to recall the top court's certain directions related to registration of a CBI probe into the government decision for 26 percent stake sale in Hindustan Zinc Ltd (HZL) in 2002.

A bench comprising Justices D Y Chandrachud and Surya Kant took note of the submission of Solicitor General Tushar Mehta that he sought to withdraw the plea to pursue other remedies in law, including a review. The matter was then dismissed as withdrawn.

The Apex court on November 18, 2021 had directed the CBI to register a regular case and proceed in accordance with law after noting that there is sufficient material in relation to the 26 per cent disinvestment of HZL by the Union government.

Justice D. Y. Chandrachud put to the SG, "Take the case of seniority where the Court said 'A' should get seniority over 'B' without hearing 'B'. There, I can understand 'B' coming and saying 'you superseded me without hearing me, so recall your order'. That is a recall application. Here, you are saying that the Court found sufficient material for registration of a regular case, but I will now establish before you that there was no sufficient material for the registration of a regular case, and that in fact, the material is to the contrary? That cannot be the basis of a recall application".

Arguing the union government's application for recall/modification of the November 18 order, solicitor general Tushar Mehta, who had earlier appeared for CBI in the case, said, "The fundamental facts presented by the CBI before the Supreme Court were either false or palpably wrong... Every line that the CBI informed the Supreme Court about the decision making process for disinvestment (of 26% government stake in HZL) was false or wrong."

“The decision was not made by a single individual as projected by the CBI. (It was factually wrong). It was a collective three-tier decision. The empowered group of secretaries, comprising 10-12 secretaries of various departments, examined the proposal. Their views were scrutinised by the Core Group of Disinvestment. Ultimately the Union Cabinet took into account all the views and arrived at the decision after careful consideration of the whole gamut of facts and views," the SG said and pleaded that when the erroneous facts presented by the CBI led to an erroneous conclusion by the SC, then it was open for the court to correct that mistake by recalling or modifying the order directing registration of a regular case by the CBI.

The apex court, while permitting the government to withdraw its application, allowed it to pursue legal remedy including filing of a review petition.

"Learned Solicitor General Tushar Mehta seeks permission to withdraw the miscellaneous application with liberty to pursue the remedies in law, including a review. The MA is accordingly dismissed as withdrawn," the bench said in its order.

Stating that he is duty-bound to place true facts on record, Mehta argued that errors had crept into “foundational facts” that the CBI had submitted before the top court.

Finally today the finance ministry had sought recall/modification of the SC’s directions on the grounds that the investigative agency had submitted incomplete information that was contrary to the record and the satisfaction was reached and recorded by the apex court based on the file notings and one “self-contained note” filed by the CBI in a sealed cover.