Section 482 CrPC - High Courts Should Not Pass 'Oral Directions' To Restrain Arrest; Such Directions Irregular : Supreme Court

The Supreme Court has observed that the procedure of 'oral direction' not to arrest an accused is irregular.

The court observed that the text of a written order is what is binding and enforceable and such oral directions can cause serious misgivings.

"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 bench comprising Justices DY Chandrachud and MR Shah observed.

In this case, the accused had approached the Gujarat High Court by filing a petition under Section 482 of the Criminal Procedure Code seeking quashing of FIR lodged against him Sections 405, 420, 465, 467, 468 and 471 of the Indian Penal Code. When this petition was pending, the accused was arrested. When the proceedings were taken up after this arrest, the Court noted that, an oral direction was issued by the Court restraining the arrest, and thus the judge directed that the accused should forthwith be released.

In appeal, the court noted that the text of the order of the High Court did not contain any direction restraining the arrest of the accused.  Further it noted that only reasons for passing the impugned order are (i) Proceedings are pending between the parties; and (ii) Both of them have set the criminal machinery in action. 

The court said that if the High Court thought it fit to grant an interim protection against arrest, 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) restraining arrest, does not form a part of the judicial record and must be eschewed. Absent a judicial order, the investigating officer would have no official record emanating from the High Court on the basis of which a stay of arrest is enforced. 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.", the court added.

The court said that, unlike civil cases involve disputes between two private contestants, 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.

Procedure of issuing oral directions to not to arrest must be avoided

The Supreme Court said that High Courts should eschew the practice of issuing oral directions to not to arrest.

"The procedure followed by the High Court of issuing an oral direction restraining the arrest of the first respondent was irregular",  the Court stated.

It added :

"The procedure which was followed by the Single Judge must therefore be eschewed in the future. 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", it said.

Element of judicial accountability is lost where oral regimes prevail

"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".

Such a procedure is open to grave abuse, would set a dangerous precedent

"Oral directions of this nature by the High Court are liable to cause serious misgivings. Such a procedure is open to grave abuse. Most High Courts deal with high volumes of cases. 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"

Referring to Neeharika Infrastructure Pvt Ltd. v. State of Maharashtra, the bench observed that the reasons recorded by the Court while issuing an interim order must reflect an application of mind to relevant facts and circumstances.

Allowing the appeal, the bench said: "While an order granting a stay of arrest in a proceeding under Section 482 of the CrPC lies within the jurisdiction of the High Court, the grant of such relief must be after a judicious application of mind, which must emerge from the reasons which are recorded by the Judge. 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. But the reasons recorded by the Court must reflect an application of mind to relevant facts and circumstances, including: (i) The nature and gravity of the allegations; (ii) The seriousness of the alleged offence(s); (iii) The position of the accused and the likelihood of their availability for investigation; and (iv) The basis on which a stay of arrest has been granted till the next date."

Case: Salimbhai Hamidbhai Menon vs. Niteshkumar Maganbhai Patel ; CrA 884 of 2021
Citation: LL 2021 SC 406
Coram:  Justices DY Chandrachud and MR Shah
Counsel: Sr. Adv Anshin H Desai for appellant, Sr. Adv Manoj Swarup for respondent. Adv Kanu Agrawal for State of Gujarat

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