HC passing oral directions restraining arrest unacceptable, only text of written order binding: Supreme Court [Read Judgement]

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The Supreme Court on Wednesday said that High Courts while passing orders should ensure that it is done by way of written orders and judgments and not by way of oral directions (Salim Bhai Hamid Bhai Menon vs Nitwshkumar Maganbhai Patel).

The Bench of Justices DY Chandrachud and MR Shah deprecated the procedure followed by the Gujarat High Court in a particular case in which it had issued an oral direction to restrain the arrest of a person accused of cheating and forgery.

“Judges speak through their judgments and orders. The written text is capable of being assailed. The element of judicial accountability is lost where oral regimes prevail. This would set a dangerous precedent and is unacceptable. Judges, as much as public officials over whose conduct they preside, are accountable for their actions,” the Court stated.

It therefore, said that the procedure which was followed by the Gujarat High Court in the instant case must be eschewed in future.

Administration of criminal justice is not a private matter between the complainant and the accused but implicates wider interests of the State in preserving law and order and oral directions of High Courts can cause ‘serious misgivings’, the Court added.

The Court further opined that while oral observations in court are in the course of judicial discourse, it is the text of a written order which is what is binding and enforceable.

“Issuing oral directions restraining arrest does not form a part of the judicial record and must be eschewed,” said the top court.

Oral directions of this nature by the High Court are liable to cause serious misgivings and such a procedure is open to grave abuse, the Court held.

The top court was hearing an appeal filed by Salimbhai Hamidbhai Memon challenging a March 31 order of the Gujarat High Court granting protection from arrest to the respondent, Niteshkumar Maganbhai Patel.

The March 31 order, in fact, referred to an order passed by single-judge on December 23, 2020.

As per the respondent, in the December 2020 order, an oral direction had been issued by the Court to not arrest him. This was after the Court took a view that an opportunity should be granted to counsel for the parties to explore the possibility of a settlement and, on that ground, an interim protection against arrest was granted.

However, despite oral directions, the respondent was arrested.

When the matter was taken up on March 9, the High Court directed that the respondent be released.

Later on March 31, the High Court extended interim protection to the respondent and the said order came to be appealed before the top court.

The Supreme Court in its judgment said that the procedure followed by the High Court in issuing an oral direction restraining the arrest of the first respondent was irregular.

“If after hearing the parties on December 23, 2020, the High Court was of the view that an opportunity should be granted to counsel for the appellant and the first respondent to explore the possibility of a settlement and, on that ground, an interim protection against arrest ought to be granted, a specific judicial order to that effect was necessary,” the top court made it clear.

The Court further said that most High Courts deal with high volumes of cases and judicial assessments change with the roster.

“Absent a written record of what has transpired in the course of a judicial proceeding, it would set a dangerous precedent if the parties and the investigating officer were expected to rely on unrecorded oral observations,” the judgment said.

Senior Counsel Anshin H Desai appeared on behalf of the appellant. Senior Counsel Manoj Swarup represented the respondent and advocate Kanu Agrawal appeared for the State of Gujarat.

Read Judgment here

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