(2009] 9 S.C.R. 1

GURMEJ SINGH A v.

STATE OF PUNJAB & ANR. (Criminal Appeal No. 992 of 2009)

APRIL 28, 2009 B

[DR. ARIJIT PASAYAT AND ASOK KUMAR )

GANGULY, JJ.]

Administrative Law: c Natural justice - Principles of - Interpretation - Held: Whenever order is struck down as invalid being violative of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon - Order challenged

-+' by virtue of its inherent defect is to be vacated, but D ' proceedings are not terminated - On facts, accused convicted u/s.395, 450, 342 /PC - Direction by High Court qua appellant-investigating officer, who was the main person involved in the matter but not prosecuted, without issuance of notice - There was violation of principles of natural justice - E Hence directions by High Court qua appellant not maintainable and set aside.

t Maneka Gandhi v. Union of India 1978 (2) SCR 621, referred to.

' F Ray v. Local Government Board (1914) 1 KB 160; General Council of Medical Education & Registration of U.K.

v. Sanckman 1943 AC 627: (1948) 2 All ER 337; Board of Education v. Rice 1911 AC 179: 80 LJKB 796; Spackman

v. Plumstead District Board of Works 1985 (10) AC 229:54 G, LJMC 81; Drew v. Drew and Lebura 1855(2) Macg. 1.8;

, J.

James Dunber Smith v. Her Majesty the Queen 1877-78(3) App.Case 614; Arthur John Specman v. Plumstead District Board of Works 1884-85(10) App.Case 229; Vionet v. Barrett

1 H •

[2009] 9 S.C.R.

A 1885(55) LJRD 39; Hookings v. Smethwick Local BortJ of Health 1890(24) QBD 712; Ridge v. Baldwin 1963(1) WB 569; In re R.N. (An lnfaot) 1967(2) 8617, 530; Fairmount Investments Ltd. v. Secretary to State for Environment .1976 WLR 1255; Regina v. Secretary of State for Home Affairs Ex B Parle Hosenba/11977 (1) WLR 766; Bosewel/'s case (1605)

6 Co.Rep. 48-b, 52-a, referred to.

Case Law Reference: ; k.

(1914) 1 KB 160 Referred to.

Para 8 c

1943 AC 627 Referred to.

Para 8

1911 AC 179 Referred to.

Para 9

1985 (10) AC 229 Referred to.

Para 10 - D 1855(2) Macg. 1.8 Referred to.

Para-13 ...,.

1877-78(3) AC 614 Referred to. para 13

1884-85(10) AC 229 .

Referred to.

Para 13

.1885(55) LJRD 39 Referred to.

Pata 13

1890(24) QBD 712 Referred to.

Para 13

1963(1) WB 569 Referred to.

Para 13

1978 (2) SCR 621 Referred to.

Para 13 F I 1967(2)· 8617, 530 Referred to.

Para 13 t

1976 WLR 1255 Referred to.

Para 13 .,.,

1977 (1) WLR 766 Referred to.

Para 13

(1605) 6 Co.Rep. 48-b, 52-a Referred to Para 15

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal ,!._ No. 992 of 2009.

H From the Judgment & Order dated 08.11.2006 of the High

Court of Punjab and Haryana at Chandigarh in Crl. Appeal No.

-~ 1746-SB of 2005.

WITH SL.P (Crl.) No. 1623 of 2007. -

SLP (R) ... CRLMP No. 3892 of 2007.

B Ranjit Kapoor, AAG (Pub.), Gurminder Singh, D. Mahesh Babu, K.G. Bhagat, Vineet Bhagat, Manju Bhagat, Monohr Singh Bakshi; Debasis Misra, Vipin Gogia, Jaspreet Gogia, Sonia Kapoor, S.N. Mehrotra, Falak Mohd., Jaideep Malik, jay Pal, H.M. Singh, Jasneet Kaur, Praveen Kr. Singh, Kaushal c Yadav, Durgesh Yadav and Kuldip Singh the appearing parties.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Application for impleadment is rejected.

D ...

2. Leave granted. ··"'

3. Challenge in this appeal is to the order passed by a learned single Judge of Punjab and Haryana High Court which gave certain directions qua the present appellant who was the E Investigating officer. One Sanjiv Kumar filed an appeal against the judgment dated 17/7/2005 passed by learned Sessions Judge, Kapurthala, whereby the said accused Sanjiv Kumar was convicted for the offences punishable under Sections 395,

-+ 450, 342 of Indian Penal Code, 1860 (in short the IPC').

4. The complainant Sukhraj Singh also filed a revision for F

payment of compensation. The prosecution version was that the accused Sanjiv Kumar was posted as ASI in Police Station City Phagwara. On 23/2/2002 at about 7.30 p.m. he along with 4-5 unidentified persons had committed an offence of trespass by G entering into building of M/s. Wadhawan Forex (P) Limited Phagwara. He allegedly committed dacoity by robbing Sukhraj ), Singh Director of that Company of the Indian currency and foreign currency. There were other aspects highlighted by the prosecution in the trial. We are not concerned with those H

A presently.

5. The present appellant appeared as DW.1 and

upported the version given in Fl R No.19 dated 23/2/2002 registered by Gurmej Singh Inspector SHO. The High Court was

B of the view, while dealing with the appeal of Sanjiv Kumar, that it would have been fair and proper to involve the present appellant and all the persons named in FIR No.19 and to prosecute them and that if they had been present in the Court .l_ then the witnesses could say whether they were the other persons or not. It was also observed that when the other c persons were not challaned or shown then the witnesses could

always say about Sanjiv Kumar ASI and 4-5 unidentified persons. With these observations and after discussing the evidence, the High Court upheld the conviction of the accused -Sanjiv Kumar for offence punishable under Sections 395, 450

o and 342 IPC. High Court was of the view that the senterwe of imprisonment imposed on the appellant Sanjiv Kumar was on the higher side especially when the appellant herein who was the main person involved in the matter had not been prosecuted. The Home Secretary of the State and the DGP

E were directed to look into the matter and take steps to prosecute the appellant herein in the appeals atleast for the offences for which Sanjiv Kumar appellant has been charged or at least for preparing false documents involving Sukhraj Singh and keeping him wrongfully confined. -+- F

6. Though various points were argued, the main contention .._

made for the appellant was that the observations and directions ;

were given even without issuance of notice to the appellant. In other words he lfas been condemned without even hearing him.

According to the learned counsel, the basic principles of natural G justice have been violated. Learned counsel for the State fairly.

accepted that no. opportunity was granted during hearing of the appeal by the High Court. ... "'

7. Principles of natural justice are those rules which have

H been laid down by the Courts as being the minimum protection

.\-

[DR. ARIJIT PASAYAT, J.]

of the rights of the individual against the arbitrary procedure that A may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice ..

8. What is meant by the term 'principles of natural justice' B ).; is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government Board (1914) 1 KB 160 at p.199:83 LJKB 86) described the phrase as sadly lacking in precision.

In General Council of Medical Education & Registration of U.K.

v. Sanckman (1943 AC 627: (1948) 2 All ER 337), Lord Wright c observed that it was not desirable to attempt 'to force it into any procusteam bed' and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal

-.- interest in the controversy, and further that it should give 'a full and fair opportunity' to every party of being heard.

9. Lord Wright referred to the leading cases on the subject.

The most important of them is the Board of Education v. Rice (1911 AC 179:80 LJKB 796), where Lord Loreburn, LC. observed as follows:

"Comparatively recent statutes have extended, if they E

-t have originated, the practice of imposing upon departments or offices of State the duty of deciding or determining questions of various kinds. It will, I suppose usually be of an administrative kind, but sometimes, it will

F involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases, the Board of Education will have to ascertain the law and also to ascertain the facts. I need not and that in doing either they must act in good faith and fairly listen to both sides for that'

). is a duty lying upon everyone who decides anything. But I G do not think they are bound to treat such a question as though it were a trial.. .. The Board is in the nature of the arbitral tribunal, and a Court. of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board H

A -have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari".

10. Lord Wright also emphasized from the {)am~ tj@iion the observation of the Lord Chancellor that the Bord qn ,.\._ obtain information in any way they think best, always giving ft fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view''. To the same effect are the observations of Earl c of Selbourne, LO in Spackman v. Plumstead District Board of Worl<s (1985 (10) AC 229:54 LJMC 81), where the learned and noble Lord Chancellor observed as follows:

"No doubt, in the absence of special provisions as 't

D to how the person who is to decide is to proceed, law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their

E case and their view. He must give notice when he will

~ . proceed with the matter and he must act honestly and

impartially and not under the dictation of some other + person or persons to whom the authority is not given by law. There must be no malversation of any kind. There

F would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice".

11. Lord Selboume also added that the essence of justice consisted in requiring that all parties should have an G opportunity of submitting to the person by whose decision they ) .. : .... . / are to be bound, such considerations as in their judgment ought to be brought before him. All these cases lay down the very important rule of natural justice contained in the oft-quoted ' ' ' phrase 'justice should not only be done, but should be seen to H be done'.

12. Concept of natural justice has undergone a great deal A of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statte.. What particular rule of natural justice should b§ impliad and what its context should be in a

J-. giy~I'\ gf!~~ ffiY§t depend to a great extent on the fact and c; imum§tances of that case, the frame-work of the statute under whioh the enquiry is held. The old distinction between a judicial

act and an administrative act has withered away. Even an administrative order which involves civil consequences must be c consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything

_,,. that affects a citizen in his civil life.

13. Natural justice has been variously defined by different Judges: A few instances will suffice. In Drew v. Drew and Lebura (1855(2) Macg. 1.8, Lord Cranworth defined it as 'universal justice'. In James Dunber Smith v. Her Majesty the Queen (1877-78(3) App.Case 614, 623 JC) Sir Robort P.

E Collier, speaking for the judicial committee of Privy council,

1, tect the phrase 'the requirements of substantial justice', while in Arthur John Specman v. Plumstead Distri_ct Board of Works (1884-85(10) App.Case 229, 240), Earl of Selbourne, S.C. preferred the phrase 'the substantial requirement of justice'. In F Vlonet v. Barrett (1885(55) LJRD 39, 41), Lord Esher, MR defined natural justice as 'the natural sense of what is right and wrong'. While, however, deciding Hookings v. Smethwick Local Board of Health (1890(24) QBD 712), Lord Fasher, M.R. instead of using the definition given earlier by him in Vionet's G case (supra) chose to define natural justice as 'fundamental justice'. In Ridge v. Baldwin (1963(1) WB 569, 578), Harman LJ, in the Court of Appeal countered natural justice with 'fairplay in action' a phrase favoured by Bhagawati, J. in Maneka Gandhi v. Union of India (1978 (2) SCR 621). In re R.N. (An H

A lnfaot) (1967(2) 8'617, 530), Lord Parker, CJ, preferred to describe natural justice as 'a duty to act"fairly'. In fairmount Investments Ltd v. Secre(?ry to State for Environment (1976 WLR 1255) Lord Russell ofWillowan somewhat picturesquely described natural justice as 'a fair crack of the whip' while B Geoffrey Lane, LJ. In Regina v. Secretary of State for Home Affairs Ex Parte Hosenbll (1977 (1) WLR 766) preferred the A. homely phrase 'common fairness'.

, 14. How then have the principles of natural justice been

c interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi judicial and administrative process.

15. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is 'nemo judex in causa sua' or 'nemo debet esse judex in propria causa sua'

E as stated in (1605) 12 Co.Rep.114 that is, 'no man shall be a judge in his own cause'. Coke used the form 'aliquis non debet esse jdex in propria causa quia non potest esse judex at pars' (Co.Litt. 1418), that is, 'no man ought to be a judge in his own +-

case, because he cannot act as Judge and at the same time

F be a party'. The form 'nemo potest esse simul actor et judex', that is, 'no one can be at once suitor and judge' is also at times used. The second rule is 'audi alteram partem', that is, 'hear the other side'. At times and particularly in continental countries, the form 'audietur at altera pars' is used, meaning very much

G the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely Ji., 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, 'he who shall decide anything j without the other side having been heard, although he may have "' H said what is right, will not have been what is right' (See

,_.A.

Bosewell's case (1605) 6 Co.Rep. 48-b, 52-a) or in other A words, as It is now expressed, 'justice should not only be done but should manifestly be seen to be done'. Whenever an order is struck down as invalid being in violation of principles Qf natural justice, there is no final decision of the case and fresp proceedings are left upon. All that is done is to vacate the order B assailed by virtue of its inherent defect, but the proceedings are not terminated.

16. Above being the position in law the observations and directions given by the High Court qua the present appellant cannot be maintained and stand quashed.

17. The appeal is allowed.

N.J.

Appeal allowed.