Case BriefsSupreme Court

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.

Background

 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:

  1. 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;
  2. 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]

Hot Off The PressNews

The experimental live streaming of the First Court of the Gujarat High Court started today after the Chief Justice of High Court of Gujarat, Justice Vikram Nath passed the order for the same.

The order read:

“… with a view to effectuating and broadening the implementation of Open Court concept even during the virtual hearings of the Court, this High Court has already taken up on administrative side, to work out the modalities that can be adopted for giving access to anyone who wishes to watch the Court proceedings in live.”

The court proceedings are being telecasted live, purely on experimental basis and the aspect of continuing with or adapting the modality of live court proceedings will be decided based on the outcome of this trial starting October 26, 2020 and any other trial of any other modality that may be taken up in due course.

The link for the live streaming is accessible from the High Court website and the YouTube Channel of the High Court of Gujarat. The link will be updated every evening of the previous working day.

On September 26, 2018, A Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ directed that the proceedings of constitutional importance having an impact on the public at large or a large number of people should be live streamed. Read more


*Image Courtesy: YouTube

Read the full text of the Press Release here

Read the full report on the Supreme Court ruling on Live Streaming of proceedings here

Case BriefsSupreme Court

The Court number 1 of the Supreme Court witnessed a high voltage drama when a 7-judge bench headed by the Chief Justice of India, Justice Dipak Misra, assembled for reviewing the 2-judge bench order calling for constitution of a Constitution Bench of the first five judges of the Supreme Court to hear the matter wherein it was alleged that attempts were made to bribe some Supreme Court Judges in the matters relating to Medical admission scam. The bench of J Chelameswar and S. Abdul Nazeer, JJ given the said order on 09.11.2017 and had listed the matter on November 13, 2017.

As per the petition filed by advocate Kamini Jaiswal highlighted that a case was registered by the Central Bureau of Investigation against Retired Orissa High Court Judge, Justice IM Quddusi containing serious allegations implicating the said Judge under Section 8 and Section 120-B of the Prevention of Corruption Act, 1988. Also, in another related matter mentioned before the bench of Dr. AK Sikri and Ashok Bhushan, JJ, Advocate Prashant Bhushan brought the order dated 09.11.2017 to the notice of the Court and hence, the Court ordered that the matter be placed before the Chief Justice for passing appropriate orders for listing this matter.

The 7-judge bench excluded Chelameswar, J, the senior most judge of the Supreme Court. Sikri and Bhushan, JJ also recused themselves from the bench and hence, the matter was then heard by a 5-judge bench of CJI along with RK Agrawal, Arun Mishra, Amitava Roy and AM Khanwilkar, JJ.

The order of the 5-judge bench read:

“There can be no doubt that the Chief Justice of India is the first amongst the equals, but definitely, he exercises certain administrative powers.”

The bench relied upon the decision of a three-Judge Bench in State of Rajasthan vs. Prakash Chand, (1998) 1 SCC 1, wherin it was held that the Chief Justice of the High Court is the master of the roster and there is no justification not to treat the Chief Justice of India, who is the Chief Justice of the Apex Court, to have the same power.

It was added:

“Needless to say, neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible.”

Amitava Roy, J, said:

“You are supporting the cause of accusing a sitting Chief Justice on his face!”

Advocate Kamini Jaiswal, who filed the petition before the Court said that in the last one month, the CJI has taken up 6 matters that were before other benches.

To this, CJI responded:

“Yes! That is my prerogative. The MoP matter ought not to have been heard on the judicial side.”

Responding to the demands of certain advocates who said that the proceeding of the matter must be carried in camera and press should not be allowed to print it, CJI said:

“All of us collectively believe in freedom of speech as long as it is within limits. But I am always of the view that Freedom of Expression must be respected. I will not restrain the press.”

CJI, hence, directed that the matter be placed before him for forming an appropriate bench. The matter is now listed after 2 weeks. [Campaign for Judicial Accountability and Reforms v. Union of India, 2017 SCC OnLine SC 1302, order dated 10.11.2017]

With inputs from: https://twitter.com/vikramhegde

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): While strongly emphasizing the importance of judicial accountability and transparency, the Information Commissioner Prof. M. Sridhar Acharyulu has directed the Central Public Information Officer of Supreme Court and the Ministry of Law and Justice to disclose the action taken on complaints made against former Chief Justice of India Altamas Kabir.

The appellant had filed RTI applications seeking the copy of the complaints received against former CJI Altamas Kabir, including complaints of Justice VR Krishna Iyer and Mr. Furquan; information as to the action taken on all such complaints and action taken to probe the leakage of Supreme Court verdict in Christian Medical College, Vellore v. Union of India, (2014) 2 SCC 305, before its pronouncement; and the copy of complaints received against any other sitting or retired Judge. The CPIO, Department of Legal Affairs, stated that the representation of Mr. Furquan was forwarded to Chief Justice of India for appropriate action. Similarly, the complaints received against serving/retired judges of the Supreme Court and High Courts were also forwarded to the Supreme Court and High Courts concerned for action and as originals were forwarded, they did not have those copies. He also explained that the disclosure of names of serving or retired judges, against whom complaints were made, might have far reaching consequences like demoralizing the Judges.

The CIC noted that though it could be unreasonable to give copies of frivolous complaints, but if any complaints were taken up for further probe after prima facie inquiry, it would be in public interest to disclose the copies of the complaints along with the status of action taken. The Commission thus directed the Ministry of Law and Justice to disclose the action taken on complaints made against former CJI Altamas Kabir and the action taken on the leakage of the judgment. It further directed the Ministry to inform the appellant as to the number of complaints made against former Judges that were received and forwarded, without indicating the names and contents; the current status of the Judicial Standards and Accountability Bill, the National Litigation Policy and the new Memorandum of Procedure, 2016-17; and the response to Government’s suggestion to create redressal mechanism for grievances in Supreme Court and High Courts. The Commission also directed the CPIO of Supreme Court to inform the appellant, the action taken on the representation of Mr. Furquan, and the number of complaints received from the Ministry of Law and Justice, without indicating the names or contents. [Subhash Chandra Agrawal v. Central Public Information Officer, 2017 SCC OnLine CIC 592, decided on 03.05.2017]