Code of Criminal Procedure, 1973 – Section 482 – Issuing oral directions (presumably to the APP) restraining arrest, does not form a part of the judicial record and must be eschewed.
The procedure followed by the High Court of issuing an oral direction restraining the arrest of the accused was irregular. If after hearing the parties, the High Court was of the view that an opportunity should be granted to Counsel for the complainant and the accused 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. 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. 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. [Paras 23 & 24]
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.
We are conscious of the fact that in civil proceedings, Counsel appearing on behalf of the contesting parties do in certain cases mutually agree before the court to an ad interim arrangement and agree among themselves to record the terms of the arrangement by an exchange of correspondence between the advocates. This can typically happen when civil disputants are attempting an amicable settlement. Civil cases involve disputes between two private contestants. 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. 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. [Para 25]
Criminal Appeal No.884/2021
For Appellant(s) Mr. Anshin A Desai, Sr. Adv. Mr. D.N. Ray, Adv. Mr. Nandish H. Thackar, Adv. Mr. Dillip Kumar Nayak, Adv. Ms. Disha Ray, Adv. Mrs. Sumita Ray, AOR For Respondent(s) Mr. Manoj Swarup, Sr. Adv. Mr. Shakti Kanta Pattanaik, AOR Mr. Dhruv K. Dave, Adv. Mr. Kalpesh N. Soni, Adv. Mr. Tarun Kumar Tiwari, Adv. Mr. Neelmani Pant, Adv.
Hon’ble Dr Justice Dhananjaya Y Chandrachud pronounced the order of the Bench comprising His Lordship and Hon’ble Mr. Justice M R Shah.
Citations : AIR 2021 SC 4109 : 2021 (10) SCALE 20