Updated: September 2, 2021 1:07:44 am
The Supreme Court (SC), in a criminal appeal pertaining to a business firm partnership dispute, has held that the the procedure of issuing oral directions only opens the door to “serious misgivings” and “grave abuse” with a loss in judicial accountability.
In an order dated August 31, the SC observed that such a practice must be abstained from as it can set “dangerous precedents”, noting that it is only the text of a written order that is binding.
The matter concerns two Vadodara-based individuals who agreed to a firm partnership and subsequently fell out over allegations of forged documents. An FIR was filed before a Vadodara police station in July 2020 by a partner Niteshkumar Patel against the other Salimbhai Memon.
A police investigation revealed that it was Patel who forged the document. A second FIR was filed in December 2020 against Patel by Memon. Patel moved the Gujarat High Court seeking quashing of the second FIR. On March 8, Patel was arrested and the next day, the Gujarat HC issued an oral direction restraining Patel’s arrest and directed that Patel be released if he was arrested.
Memon, through senior advocate Anshin Desai, challenged the Gujarat HC’s oral direction of granting Patel protection from arrest, before the SC.
A bench comprising Justice DY Chandrachud and Justice MR Shah, after hearing the matter, recorded in its judgment dated August 31, “The text of the order of the High Court did not contain any direction restraining the arrest of (Patel)… But it appears from the subsequent order dated 9 March 2021 that an oral direction was issued by the Single Judge not to arrest (Patel)… The procedure followed by the High Court of issuing an oral direction restraining the arrest of (Patel)… was irregular.”
The apex court further observed that if Patel had to be granted interim protection from arrest while the parties were exploring the option of an out-of-court settlement, “a specific judicial order to that effect was necessary”.
“Oral observations in court are in the course of a judicial discourse. The text of a written order is what is binding and enforceable. Issuing oral directions (presumably to the APP [additional public prosecutor]) restraining arrest, does not form a part of the judicial record and must be eschewed…,” the SC noted while disposing of Memon’s plea.
The bench reasoned, “Oral directions of this nature by the High Court are liable to cause serious misgivings. Such a procedure is open to grave abuse… it would set a dangerous precedent if the parties and the investigating officer were expected to rely on unrecorded oral observations… In criminal proceedings, apart from the accused and the complainant, there is a vital interest of the State and of society in the prosecution of crime… Judges, as much as public officials over whose conduct they preside, are accountable for their actions.”
The apex court also found the Gujarat HC’s March 31, 2020 order, which recorded in writing that Patel be granted interim protection from arrest so as to “strike a balance”, to be lacking in detailed reasoning, as the SC order notes, “How this would strike a balance between both the parties is unclear from the reasons which have been adduced.”
The SC bench also found that the high court’s order did not allude to the serious allegations made in the FIR, terming this lacuna as a “serious deficiency”.
The SC set aside the March 31, 2020, order by Justice VD Nanavati of the Gujarat HC that recorded Patel should not be arrested till the next date of hearing.
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