SALIMBHAI HAMIDBHAI MEMON versus NITESHKUMAR MAGANBHAI PATEL & ANR.

Citation: [2021] 8 S.C.R. 281 · Decided: 31-08-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Disposed off

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Judgment (excerpt)

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281
[2021] 8 S.C.R. 281
281
SALIMBHAI HAMIDBHAI MEMON
v.
NITESHKUMAR MAGANBHAI PATEL & ANR.
(Criminal Appeal No. 884 of 2021)
AUGUST 31, 2021
[DR DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Code of Criminal Procedure, 1973 – s.482 – Penal Code,
1860 – ss.405, 420, 465, 467, 468 and 471 – Appellant and the
first respondent entered into a deed of partnership under which a
firm was constituted – Dispute arose between the parties – FIR was
registered – The gravamen of the allegations in the FIR is that: a)
The deed of relinquishment which was prepared in relation to certain
lands situated was interpolated and forged by the first respondent;
b) The deed of dissolution of partnership was fabricated; and c)
Despite the settlement dated 24.12.2018, 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
– The first respondent instituted proceedings u/s. 482 of the Cr.P.C.
– An order was initially passed recording the statement of counsel
for the first respondent that he was ready and willing to offer a
settlement – Since, the parties desired to explore the possibility of a
settlement, the proceedings were adjourned – The text of the order
of the High Court did not contain any direction restraining the arrest
of the first respondent – Thereafter, the first respondent was arrested
– When the proceedings were taken up again by the Single Judge
of the High Court, the Court recorded the submission of the first
respondent that initially, an oral direction was issued by the High
Court restraining the arrest of the first respondent – Recording that
this statement was not disputed on behalf of the appellant, the Single
Judge directed release of the first respondent – The Single Judge,
by the impugned order issued an ad interim protection against arrest
till the next date of listing – On appeal, held: 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,
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
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
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 – Further, in the instant case, the offences alleged
to be involved is of serious nature – The High Court has not alluded
to the allegations made in the FIR – This constitutes serious
deficiency – The Supreme Court has in various decisions
disapproved of interim orders of High Courts which grant stay of
arrest or which direct that no coercive steps must be taken against
the accused, without assigning reasons – Thus, the impugned order
of the High Court is set aside.
Code of Criminal Procedure, 1973 – s.482 – Oral directions
restraining arrest – Consequences of – Held: 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 restraining arrest by the High Court are liable to cause
serious misgivings – Such a procedure is open to grave abuse –
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.
Zahira Habibulla H. Sheikh v. State of Gujrat (2004) 4
SCC 158 : [2004] 3 SCR 1050; Neeharika
Infrastructure Pvt Ltd. v. State of Maharashtra (2021)
SCC Online SC 315; Parbatbhai Aahir alias Parbatbhai
Bhimsinhbhai Karmur v. State of Gujrat (2017) 9 SCC
641 : [2017] 10 SCR 12 – relied on.
Case Law Reference
[2004] 3 SCR 1050
relied on
Para 23
[2017] 10 SCR 12
relied

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