REPORTABLE                IN THE SUPREME COURT OF  INDIA

         CRIMINAL APPELLATE JURISDICTION   

 CRIMINAL APPEAL NO. 992      OF 2009 (Arising out of SLP(Crl.)No. 6705/2006)

GURMEJ SINGH ..  APPELLANT

vs.

STATE OF PUNJAB & ANR. ..  RESPONDENTS

J U D  G M E N T

Dr.  ARIJIT  PASAYAT,J.

Application for impleadment is rejected.

Leave granted.

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 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').

The complainant  Sukhraj  Singh  also filed a  revision for  

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  

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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

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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.

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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,  

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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:  

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“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'.

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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.  

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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  

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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

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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.

                          ................ .J.               (Dr. ARIJIT PASAYAT)

             ...................J.

                                       (ASOK KUMAR GANGULY) New Delhi, April 28, 2009.