HM Journal

Validity of Oral orders in India

Introduction

Judges’ words have been celebrated and respected forever however the form in which they must be professed is in question lately. A recent SC judgement observed the importance of embodying these orders in written form. Underlying the importance of judicial accountability justice DY Chandrachud and Justice M R Shah comment on the oral judgement issued by the High Court of Gujarat.

The matter in question involved a Vadodara based person Salimbhai Memon who breached the formation of a firm partnership over allegations of forged documents. An FIR was registered against him by his partner Niteshkumar Patel. Investigation by the police revealed that the documents were forged by Patel, a FIR was filed in December of 2020, against Patel by Salimbhai Memon. Patel moved to the Gujarat HC seeking to quash the FIR. On 8th of March Patel was arrested. The Gujarat HC on 9th march passed an oral order directing Patel be released and restrained such an arrest. This oral direction was challenged By Memon before the SC.

Analysis

The honourable SC in its judgement on the 31st of August observed that the textual transcript of the court did not contain any directions restraining the arrest of Patel. It was further observed that following an irregular procedure the single judge of the High court issued an oral  order restraining such an arrest. The SC observed that the high court failed to allude to several critical allegations made in the FIR however the SC judgement brought insight into the importance of written orders and the legitimacy they hold.

In its judgement the SC observed that oral observations in court are part of the course of judicial discourse but the text of a written order is what is enforceable . They emphasised that issuing an oral order restraining an arrest must be restrained from. They further emphasised that in a criminal proceeding the state is also a party in whom interest is vested, the judges are held accountable.

Section 482 of the Cr.P.C gives High Courts the power to release an accused who becomes an approver on the bail in exceptional cases to give effect to any order under this code, or to prevent abuse of court process, or to ensure justice. In Talab Haji Hussain v. Madhukar Purushottam Mondkar ( 1958) it was established that the power under this section must be exercised with due care and caution.

We observe that the council representing the defendant in the case submitted that to ensure quick release of Mr. Patel an oral order was passed. The HC’s inability to establish a clear reason for the restraining order is also considered one of the reasons for following such an unorthodox method of issuing an oral order. The supreme court observed in particular that if this practice is  accepted, then that would set a dangerous precedent and would voluntarily open doors to grave abuse. The court also invalidated the HC’s stay on the arrest as it could not confirm to the various guidelines laid down by the SC. These guidelines were laid down by quoting Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur v. State of Gujarat (2017) , 10 principles were laid down to direct the High court’s powers under Section 482 of the CrPC.

Oral nature of directions can cause serious misgivings as they are subjects to abuse in procedures. Since judicial assessment changes with roster , it would be unreasonable for the parties and investigation officers to be expected to rely on recorder oral observations. Referring to Neeharika Infrastructure pvt ltd. v State of Maharashtra the court observed that each order must reflect the use of mind in the relevant facts, it must show the gravity of allegation, the seriousness of the offence most importantly the grounds on which the stay was awarded , which the HC of Gujarat had alluded to do. The court observed that accountability was the indispensable characteristic of any order and the intangible nature of an oral judgement decreases the accountability and enforceability qualities of a judgement

Conclusion

The nature of a bail order and any criminal order lays an overbearing duty on the judge to ensure it is issued in the recommended manner , ensuring it adheres to all the procedures mandated by the court of law. An oral judgement may decrease the accountable nature of any order when it may be subjectable to procedural abide. Oral judgements were not explicitly declared invalid but the apex court strongly urged that the issue of oral directions be avoided to ensure a more uniform and accountable system of justice.

REFERENCES

1. https://www.lawyersclubindia.com/judiciary/salimbhai-hamidbhai-menon-vs-niteshkumar-maganbhai-patel-anr-2021-issuing-oral-directions-restraining-arrest-does-not-form-a-part-of-the-judicial-record-and-must-be-eschewed-5462.asp

2. https://www.livelaw.in/pdf_upload/salimbhai-hamidbhai-menon-vs-niteshkumar-maganbhai-patel-ll-2021-sc-406-399651.pdf

Written by: Shreya Shetty GR (2nd Year)

College: Christ University(Deemed University).



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