Supreme Court: The Division Bench of Dr Dhananjaya Y Chandrachud and MR Shah, JJ., while addressing a matter expressed that,
The 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 as well as a societal interest in the sanctity of the criminal justice administration.
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.
Instant appeal arose from Gujarat High Court’s Judgment.
Appellant and the first respondent had entered into a partnership deed under which a firm was constituted. Share of the first respondent in the profit/loss was alleged to be 55% while the share of the appellant – 45%.
Further, in the year 2017, a document styled as “sammati-lekh” was allegedly entered into by the appellant consenting to the execution of a sale deed in favour of a third party and the appellant agreed not to make any claim in the amount of Rs 3.89 crores from his capital investment. The appellant also agreed to relinquish a certain parcel of land belonging to the firm.
Anshin H Desai, Senior Counsel on behalf of the appellant submitted that:
(i) An FIR was lodged on 6 December 2020 containing serious allegations involving:
- Interpolation of the deed of relinquishment executed by the appellant with the consequence that whereas the interest in only one property at Akota was relinquished, several additional properties have been included and the nature of the interpolation would be obvious on a bare perusal of the documents which have been annexed to the paper book;
- The deed of dissolution of partnership is purported to have been executed on a day when the appellant was not present in India but was traveling to Dubai;
(ii) The FIR has been registered on the basis of the above allegations implicating the commission of offences punishable under Sections 405, 420, 465, 467, 468 and 471 of the Penal Code;
(iii) On the representation made by the first respondent, successive Memorandum of Understandings (“MoU” or “MoUs”) were entered into between the appellant and the first respondent; and
(iv) Pursuant to the settlement, the cheques which were issued by the first respondent have been dishonoured and the title to the lands which were purported to be transferred to the appellant is under a cloud and is not marketable.
Bench in view of the consistent position of the Supreme Court, opined that the High Court was not justified in issuing a direction restraining the arrest of the first respondent till the next date of listing without reasons.
Court stated that the procedure followed by the High Court of issuing an oral direction restraining the arrest of the first respondent was irregular.
Oral observations in court are in the course of judicial discourse. The text of a written order is what is binding and enforceable. Issuing oral directions (presumably to the APP) restraining arrest, does not form a part of the judicial record and must be eschewed.
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.
Further, the Bench noted that the Single Judge by an impugned order had issued an ad interim protection against arrest till the next date of listing. The reasons recorded were as follows:
- Proceedings are pending between the parties;
- Both of them have set the criminal machinery in action.
Having recorded the above, the Single Judge had granted a stay of arrest “to strike” a balance between both the parties while observing that the investigation may proceed. To this, the Court expressed that how this would strike a balance between both the parties was unclear from the reasons adduced.
The formulation of reasons in a judicial order provides the backbone of public confidence in the sanctity of the judicial process. While directing that the proceedings are to be listed on a future date, the High Court is undoubtedly not expected to deliver a detailed judgment elaborating upon reasons why a stay of arrest has been granted.
In the recent judgment in Neeharika Infrastructure Pvt Ltd. v. State of Maharashtra, 2021 SCC OnLine SC 315, this Court through one of us (Justice MR Shah) formulated the principles which have to be borne in mind by the High Court, when its intervention is sought under Section 482 of the CrPC to quash an FIR.
Supreme Court observed that while there may be some cases where the initiation of the criminal proceedings may be an abuse of law, it is in cases of an exceptional nature, where it is found that absence of interference would result in a miscarriage of justice, that the Court may exercise its jurisdiction under Section 482 of the CrPC and Article 226 of the Constitution.
Adding to the above, Court emphasized that the impugned order of the High Court cannot be sustained on the touchstone of the principles which have been consistently laid down by Supreme Court and reiterated in the above decision.
High Court was moved for the grant of ad-interim relief in a petition for quashing the FIR. The considerations which ought to weigh in whether or not to exercise the jurisdiction to quash must be present in the mind of the Judge while determining whether an interim order should be made.
In view of the above discussion, appeal was allowed and the impugned order was set aside. [Salimbhai Hamidbhai Memon v. Niteshkumar Maganbhai Patel, 2021 SCC OnLine SC 647, decided on 31-08-2021]