HM Journal

Without alluding the allegations made in FIR It can constitute serious deficiency on part of the High Court

Facts:

Two parties entered on partnership agreement. Out of Appellant before Supreme Court alleges that an FIR was lodged containing serious allegations of section 405, 420, 465, 467, 468 and 471 against respondent and in that way single judge through an oral direction held not to arrest the respondent until next date of hearing. Hence this SLP.

 

Judgement:

Justice DY Chandrachud after going through a lot of facts has finally again saved the reality of Justice. Appeal was allowed. Justice DY Chandrachud has observed certain facts which will be more fascinating by reading prima facie but we have dissected some principles and observations below. However, full judgment is attached at the end of this report.

 

Principles and Observations:

·      Difference of Litigation – 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.

·       The interim order of a stay of arrest is in aid of the final relief which is sought in the petition. Hence, Considerations germane to the exercise of the jurisdiction to quash an FIR must be present to the mind of judges while deciding whether an interim stay of arrest is warranted.

·       The Petition for quashing FIR was pending but at the same time high court grant 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.

 

Dissected by Hemdeep Moran, Advocate at Blue Sapphire Lex Chambers, Advocates & Solicitors. Get in touch at [email protected]

 

Link to full Judgment –  

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