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 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 presently.
The present appellant appeared as DW.1 and supported
the version given in FIR No.19 dated 23/2/2002 registered by Gurmej
Singh Inspector SHO. The High Court was 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
then the witnesses could say whether they were the other persons or
not. It was also observed that when the other 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 and 342 IPC. High Court was of the view that the sentence 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 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.
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 has been condemned without even hearing him. According to the
learned counsel, the basic principles of natural 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.
Principles of natural justice are those rules which have
been laid down by the Courts as being the minimum protection of the
rights of the individual against the arbitrary procedure that 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.
What is meant by the term 'principles of natural justice' 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 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.
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, L.C. observed as follows:
"Comparatively recent statutes have extended, if
they 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
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 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 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".
Lord Wright also emphasized from the same decision the
observation of the Lord Chancellor that the Board can obtain information
in any way they think best, always giving a 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 of Selbourne, LO in Spackman v. Plumstead District Board of Works (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
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 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 would
be no decision within the meaning of the statute if there were
anything of that sort done contrary to the essence of justice".
Lord Selbourne also added that the essence of justice
consisted in requiring that all parties should have an 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 be done'.
Concept of natural justice has undergone a great deal 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 statute.
What particular rule of natural justice should be implied and what its
context should be in a given case must depend to a great extent on the
fact and circumstances of that case, the frame-work of the statute under
which 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 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.
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. Collier, speaking for the judicial committee of
Privy council, used the phrase 'the requirements of substantial justice',
while in Arthur John Specman v.
Plumstead District Board of Works (1884-85(10) App.Case 229, 240), Earl
of Selbourne, S.C. preferred the phrase 'the substantial requirement of
justice'. In Vionet 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 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
'fair-play in action' a phrase favoured by Bhagawati, J. in Maneka Gandhi
v. Union of India (1978 (2) SCR 621). In re R.N. (An Infaot) (1967(2) B617,
530),Lord Parker, CJ, preferred to describe natural justice as 'a duty to
act fairly'. In fairmount Investments Ltd. v. Secretary to State for
Environment (1976 WLR 1255) Lord Russell of Willowan somewhat
picturesquely described natural justice as 'a fair crack of the whip' while
Geoffrey Lane, LJ. In Regina v. Secretary of State for Home Affairs Ex
Parte Hosenball (1977 (1) WLR 766) preferred the homely phrase
'common fairness'.
How then have the principles of natural justice been 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.
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' 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 judex 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 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 the same thing. A corollary has been deduced
from the above two rules and particularly the audi alteram partem rule,
namely 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit,
haud acquum facerit' that is, 'he who shall decide anything without the
other side having
been heard, although he may have said what is right, will not have been
what is right' (See Bosewell's case (1605) 6 Co.Rep. 48-b, 52-a) or in
other 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 of natural justice, there is
no final decision of the case and fresh proceedings are left upon. All
that is done is to vacate the order assailed by virtue of its inherent
defect, but the proceedings are not terminated.
Above being the position in law the observations and directions
given by the High Cort qua the present appellant cannot be maintained
and stand quashed.
The appeal is allowed.
(ASOK KUMAR GANGULY) New Delhi, April 28, 2009.