Without mincing any words, the Apex Court just most recently on August 31, 2021 in a learned, laudable, landmark and latest judgment titled Salimbhai Hamidbhai Menon Vs Niteshkumar Maganbhai Patel & Anr. in Criminal Appeal No. 884 of 2021 arising out of SLP (Crl) No.4617 of 2021 has minced just no words to observe that the procedure of ‘oral direction’ not to arrest an accused is irregular. The Apex Court observed that the text of a written order is what is binding and enforceable and such oral directions can cause serious misgivings. Why can’t all the courts adhere strictly to what has been laid down so unambiguously by the top court? They have to now unfailingly strictly adhere given the clear directions by the Apex Court in this leading case!
To start with, this brief, brilliant and balanced judgment authored by Justice Dr DY Chandrachud for a Bench of the Apex Court comprising of himself and Justice MR Shah sets the ball rolling by first and foremost observing in para 1 that, “This appeal arises from a judgment dated 31 March 2021 of a Single Judge of the High Court of Gujarat.”
While elaborating on the sequence of events, the Bench then observes from para 2 to 17 that,
“2. On 10 October 2010, the appellant and the first respondent entered into a deed of partnership under which a firm by the name of Calla Associates was constituted. The share of the first respondent in the profit / loss is alleged to be 55 per cent while the share of the appellant, 45 per cent. On 21 June 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.
3. On 23 August 2017, an addendum to the “sammati-lekh” is alleged to have been executed in terms of which certain amounts were to be adjusted and an amount of Rs 5.03 crores was to be paid by the first respondent to the appellant. It has been alleged that under the terms of the addendum, a sale deed of certain land situated at Mouje Samiyala was to be executed in favour of the appellant.
4. It has been alleged that on 4 September 2017, a document was prepared and notarised on 8 September 2017 pertaining to record the relinquishment of rights by the appellant from a parcel of land belonging to the firm. The allegation of the appellant is that under the terms of the original document, the appellant agreed to relinquish rights only in certain land situated at Akota, Vadodara. However, it is alleged that the first respondent forged the internal pages of the document and added additional survey numbers of land, over and above what was agreed to be relinquished.
5. On 1 November 2017, an advocate’s notice was issued by the appellant to the first respondent which was followed by a public notice on 2 January 2018 alleging misappropriation of the amount invested by the appellant. In a reply dated 5 January 2018, the respondent suggested that partnership had been mutually dissolved and documents had been executed to that effect.
6. On 25 January 2018, a legal notice was issued by the appellant complaining of the dishonour of a cheque of Rs 1.47 crores and on 7 January 2018, of another cheque in the amount of Rs 81.31 lacs.
7. On 31 January 2018, the appellant addressed a communication to the bankers to cease all transactions in the account of the partnership firm due to disputes between the parties.
8. On 22 February 2018, the appellant received a communication from HDFC Bank recording that the bank had received a document allegedly executed on 8 September 2017 by which the appellant had relinquished all his rights in the firm in favour of the first respondent. The appellant alleges that it was then that he came to know that the first respondent has fabricated the deed of dissolution of partnership dated 10 February 2018. This forged deed allegedly contained a reference to another forged document dated 8 September 2017. According to the appellant, his signature on the deed of dissolution of partnership is forged and another copy of the document without his signature was notarised on 23 February 2018.
9. On 25 February 2018, the investigating officer at JP Road Police Station conducted a preliminary enquiry into a complaint lodged by the appellant, which is stated to have been disposed of on the ground that the first respondent was ready to settle the accounts in the presence of a mediator and that the allegations were of a civil nature.
10. On 12 March 2018, a settlement was arrived at between the appellant and the first respondent in terms of which it was agreed that the partnership be dissolved and a sum of Rs 26.03 crores be paid to the appellant. Post-dated cheques were issued to the appellant. One of Rs 50 lacs was honoured while the remaining cheques were dishonoured, leading to the initiation of proceedings under the Negotiable Instruments Act 1881.
11. On 20 June 2018, the appellant instituted a complaint before the Gotri Police Station against the first respondent making allegations of forgery and cheating.
12. On 24 December 2018, a fresh MoU was entered between the appellant and the first respondent which acknowledged that an amount of Rs 50 lacs was paid, while a balance of Rs 25.52 crores remained due. The terms of the MoU envisaged that certain lands would be transferred to the appellant in lieu of the outstanding amount. The appellant has alleged that fresh cheques issued to him also returned unpaid on 6 March 2020 and the sale deeds which were executed by the first respondent were in respect of lands whose title was not marketable. The complaint filed by the appellant was disposed of by the Gotri Police Station on 25 August 2019 in view of the settlement dated 24 December 2018 on the ground that despite repeated requests, the appellant had not come forth to record his statement and it appeared that the matter involved monetary transactions for which the appellant would have to seek redressal before the appropriate court.
13. On 9 July 2020, the first respondent got an FIR registered before the Vadodara City Police Station alleging an act of forgery on the part of the appellant. On 9 October 2020, the investigating officer filed a ‘B’ summary report recording that the alleged document dated 8 September 2017 had not been forged by the appellant but by the first respondent.
14. On 6 December 2020, the FIR which forms the basis of the present proceedings was registered, alleging the commission of offences punishable under Sections 405, 420, 465, 467, 468 and 471 of the Penal Code. The gravamen of the allegations in the FIR is that: a. The deed of relinquishment which was prepared in relation to certain lands situated at Akota had been interpolated and forged by the first respondent; b. The deed of dissolution of partnership has been fabricated; and c. Despite the settlement dated 24 December 2018, the amount due to the appellant had not been paid and the title to the lands which were purported to be transferred in favour of the appellant is in dispute.
15. The first respondent instituted proceedings under Section 482 of the Code of Criminal Procedure 1973 (“CrPC”) for quashing the FIR, being Criminal Misc. Application No 19358 of 2020.
16. On 23 December 2020, when the proceedings were initially moved before the High Court, an order was passed by the Single Judge recording that :
“ The matter is between the partners and there appears allegation that some of the partners have taken advantage and siphoned away amount as well as also made falsification of documents.”
Counsel appearing on behalf of the first respondent urged that he was willing to offer a settlement. Since Counsel for the parties sought time to explore the possibility of a settlement, the proceedings were adjourned to 10 February 2021. On 8 March 2021, the first respondent was arrested. When the proceedings were taken up by the Single Judge on 9 March 2021, the Court recorded the submission of the first respondent that on 23 December 2020, an oral direction had been issued by the Court restraining the arrest of the first respondent. Recording that this statement was not disputed on behalf of the appellant, the Single Judge directed that the first respondent should forthwith be released by the Vadodara Police Station if he was arrested in connection with the FIR which was the subject matter of the petition for quashing. The proceedings were adjourned to 15 March 2021. On 15 March 2021, the proceedings were adjourned to 22 March 2021 with a direction that no steps should be taken against the first respondent till 23 March 2021. Eventually, on 31 March 2021, the Single Judge recorded that:
“5. … prima facie it appears that the complaints are with respect to business transactions between both the parties. It further appears that there are some dues which are payable by the present applicant and FIR came to be filed against applicant. On 6.12.2020 by the respondent No.2 which is subject matter of present petition. It is alleged that the documents dated 8.9.2017 and 10.2.2018 are forged documents. There was one complaint filed by the present application against respondent No.2 on 9.7.2020 wherein B Summary report was filed which is at pages 38 to 57. The said report has culminated in a proceedings before the learned Magistrate Court, Vadodara. Those proceedings are also pending.”
The Single Judge noted that previously the appellant had filed a similar complaint which was disposed of by the investigating officer and it was then that a new settlement was arrived at which, formed the basis of the FIR in question. After extracting the earlier orders dated 23 December 2020 and 9 March 2021, the Single Judge issued the following directions in paragraph 9 of the impugned order:
“9. At this juncture when the proceedings are clearly pending between the parties and both of them have set the criminal machinery in action, to strike a balance between both the parties the investigation is required to be proceeded, however the present applicant be not arrested till next date of hearing, S.O. to 28.4.2021.”
17. This order has given rise to the appeal before this Court.”
To put things in perspective, the Bench then envisages in para 22 that, “After the High Court was moved in proceedings under Section 482 of the CrPC for quashing the FIR, an order was initially passed on 23 December 2020, recording the statement of Counsel for the first respondent that he was ready and willing to offer a settlement. Since Counsel for the parties desired to explore the possibility of a settlement, the proceedings were adjourned to 10 February 2021. The text of the order of the High Court did not contain any direction restraining the arrest of the first respondent. But it appears from the subsequent order dated 9 March 2021 that an oral direction was issued by the Single Judge not to arrest the first respondent. In its order dated 9 March 2021, the High Court adverted to the submission of Counsel for the first respondent that such a direction was previously issued, which was not disputed by the appellant. Since the first respondent was arrested on 8 March 2021, he was directed to be released forthwith.”
Quite significantly, the Bench then sagaciously makes it amply clear in para 23 that, “The procedure followed by the High Court of issuing an oral direction restraining the arrest of the first respondent was irregular. If after hearing the parties on 23 December 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. 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. Though in a different context, the principle was set down by this Court in Zahira Habibulla H. Sheikh v State of Gujarat (2004) 4 SCC 158 :
“35. This Court has often emphasized that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice — often referred to as the duty to vindicate and uphold the “majesty of the law”…..””
Most significantly, the Bench then minces no words to hold in para 24 which forms the cornerstone of this cogent, composed, commendable and convincing judgment that, “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.”
No less significant is what is then stated most unequivocally in para 25 that, “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.” There can certainly be no denying or disputing it! So the same has to be adhered to in totality!
Be it noted, the Bench then observes convincingly in para 32 that, “We are conscious of the fact that in the present case the petition for quashing is still pending before the High Court. At the same time, the 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. That these considerations have been borne in mind can only be evident from the reasons, however brief, which have been indicated in the order of the High Court. This does not emerge from the impugned order of the High Court.”
Finally, the Bench then holds quite rightly in para 33 that, “We accordingly allow the appeal and set aside the impugned order of the High Court dated 31 March 2021. The High Court, it is clarified would be at liberty to proceed to deal with the petition under Section 482 of the CrPC which is pending consideration. The appeal is disposed of in the above terms.”
It goes without saying that the Apex Court in this notable case has sent a loud and clear message to all the High Courts that they should not pass oral directions to restrain arrest as such directions are irregular. It merits no reiteration that all the High Courts in India must without fail comply with it accordingly. Of course, the Apex Court rightly underscores that if there is no written record of what 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. So it is a no-brainer that to keep a written record is imperative as the text of a written order is what is finally binding and enforceable. The Apex Court thus made it absolutely clear that the issuing of oral directions (presumably to the APP) restraining arrest does not form a part of the judicial record and must be eschewed. The same has to be complied with accordingly by all the High Courts without fail! No denying it!