The above contentions were tested by the High Court on the anvil of two legal propositions, namely, (1) There is no compliance of the principle of audi alteram partem, in that the Special Judge has not afforded any reasonable opportunity of being heard before issuing the letter rogatory and (2) The Special Judge has not applied his mind to all facts and circumstances of the case before passing his orders directing issue of letters rogatory. {Para 55}
75. Countering the above arguments, the learned Additional Solicitor General seriously contended that there is no provision conferring any right of audience on an accused before issuing letter rogatory the object of which is to collect evidence which may be used against the accused during the course of the trial. According to him, the accused has no right to control or interfere with the manner in which the evidence is to be collected. Chapter XII of the Code under the heading 'Information to the Police and other Powers to Investigate covering Sections 154 to 176 does not provide for application of the concept of audi alteram partem for an accused from the very inception of a criminal proceeding till its culmination in filing of a report under Section 173 of Cr.P.C. He continues to state that an order of the Court issued in exercise of the powers under Section 166-A of the Code is only for the purpose of collecting the evidence and in the very nature of things such an order does not effect any right of an accused and, therefore, the said order is beyond the purview of the High Court power even under Section 397 of the Code. Hence there is no question of the rule of audi alteram partem being attracted in the instant case. Therefore, the only important question that arises for our consideration is whether the issue of letters rogatory on 5/7th February, 1990 and on 22nd August, 1990 are liable to be quashed on the ground of non-compliance of the rule of audi alteram partem.
76. The rule of audi alteram partem is not attracted unless the impugned order is shown to have deprived a person of his liberty or his property. In the present case, no such consequences have arisen from the letter rogatory. If the letter rogatory is accepted by the foreign Court and acted upon it will then disclose only the relevant facts about the identity of the account holders, quantum of the amounts standing in the names of the individual account holders representing the credit of Bofors money and the nature of such accounts. The follow up consequences would be that the corpus of the offence would be preserved intact by preventing the withdrawal of the money from those accounts or closure of the accounts by the account holders till the merit of the case is decided.
79. The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. In A.S. de Smith's Judicial Review of Administrative Action, 4th Ed. at page 184, it is stated that in administrative law, a prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication in the presence of some factors, singly or in combination with another. Those special factors are mentioned under items (1) to (10) under the heading "Exclusion of the audi alteram partem rule'.
80. Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law 'lifeless, absurd, stultifying and self-defeating or plainly contrary to the common sense of the situation' and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands.
81. Bhagwati, J. (as the learned Chief Justice then was) in Maneka Gandhi speaking for himself, Untawalia and Murtaza Fazal Ali, JJ. has stated thus:
Now, it is true that since the right to prior notice and opportunity of hearing arises only by implication from the duty to act fairly, or to use the words of Lord Morris of Borth-y-Gest, from 'fair play in action', it may equally be excluded where, having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion.
82. Thus, it is seen from the decision in Maneka Gandhi that there are certain exceptional circumstances and situations whereunder the application of the rule of audi alteram pattern is not attracted.
83. Paul Jackson in Natural Justice at pages 112 and 113 observed thus:
...It was seen that any body making a decision affecting party's right or legitimate expectation must observe the rules of natural justice. Conversely a decision which does not affect rights, because for example, it is a preclude to taking further proceedings in the course of which the party concerned will have an opportunity to be heard, will, very likely, not itself be subject to the requirements of natural justice, or only in a modification form. A fortiori, the decision by, for example, the responsible Minister or official to initiate the procedure necessary to reach a preliminary conclusion or to examine the existence of a prima facie case can be taken without first giving the person affected a hearing....
85. In R. v. Peterborough Justice, ex.p. Hicks (1977) 1 W.L.R. 1371, it has been held that search warrants under the Forgery Act, 1913 Section 13 may issue without the party affected being heard.
86. A Division Bench of the Allahabad High Court in Indian Explosive Ltd. (Fertiliser Division) Panki Kanpur v. State of Uttar Pradesh and Ors. MANU/UP/0300/1981 : (1981)IILLJ159All after referring to the decision in Ragina (supra) and Norwest Holst Ltd. v. Secretary of State for Trade (1978) 1 Ch. Div. 202 said thus:
Thus, it has been recognised by Judges of undoubted eminence that a decision on substantive rights of parties is one thing and a mere decision that another body investigate and decide on those substantive rights is quite another, and the principle of hearing is not applicable to the latter class of cases.
87. The principle of law that could be deduced from the above decisions is that it is no doubt true that the fact that a decision, whether a prima facie case has or has not been made out, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full-fledged enquiry follows is a relevant - and indeed a significant - factor in deciding whether at that stage there ought to be hearing which the statute did not expressly grant.
88. Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under Section 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but whether the occasion for its attraction exists at all.
89. Under the scheme of Chapter XII of the CrPC, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer.
90. In State of Haryana v. Bhajan Lal MANU/SC/0012/1992 : AIR1992SC81 at 359, this Court to which both of us (Ratnavel Pandian and K. Jayachandra Reddy, JJ.) were parties after making reference to the decision of the Privy Council in Emperor v. Khwaja Nazir Ahmad MANU/PR/0007/1944 and the decision of this Court in State of Bihar v. J.A.C. Saldanha MANU/SC/0054/1967 : 1968CriLJ97 has pointed out that"...the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation...."
91. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate.
93. Under Section 235(2), in a trial before a Court of Sessions and under Section 248(2) in the trial of warrant cases, the accused as a matter of right, is to be given an opportunity of being heard. Unlike the above provisions which we have referred to above by way of illustration, the provisions relating to the investigation under Chapter XII do" not confer any right of prior notice and hearing to the accused and on the other hand they are silent in this respect.
94. It is relevant and significant to note that a police officer, in charge of a police station, or a police officer making an investigation can make and search or cause search to be made for the reasons to be recorded without any warrant from the Court or without giving the prior notice to any one or any opportunity of being heard. The basic objective of such a course is to preserve secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. We think it unnecessary to make a detailed examination on this aspect except saying that an accused cannot claim any right of prior notice or opportunity of being heard inclusive of his arrest or search of his residence or seizure of any property in his possession connected with the crime unless otherwise provided under the law.
97. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 567 of 1992
Decided On: 17.12.1992
Union of India (UOI) and Ors. Vs. W.N. Chadha
Hon'ble Judges/Coram:
S.R. Pandian and K. Jayachandra Reddy, JJ.
Author: S.R. Pandian, J.
Citation: MANU/SC/0149/1993,1993 SCC (Cri) 1171,AIR 1993 SC 1082
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