{"id":253589,"date":"2021-09-03T09:00:35","date_gmt":"2021-09-03T03:30:35","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=253589"},"modified":"2021-09-03T10:12:38","modified_gmt":"2021-09-03T04:42:38","slug":"judges-speak-through-their-judgments-and-orders","status":"publish","type":"post","link":"https:\/\/blog.scconline.gen.in\/post\/2021\/09\/03\/judges-speak-through-their-judgments-and-orders\/","title":{"rendered":"Judges speak through their judgments and orders: Supreme Court pens down it\u2019s opinion on oral regimes"},"content":{"rendered":"\n
Tweet<\/a><\/div>\n

Supreme Court: <\/strong>The Division Bench of Dr Dhananjaya Y Chandrachud and MR Shah, JJ., while addressing a matter expressed that,<\/p>\n

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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.<\/span><\/p>\n

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.<\/span><\/p>\n<\/blockquote>\n

Background<\/strong><\/span><\/h3>\n

\u00a0<\/strong>Instant appeal arose from Gujarat High Court\u2019s Judgment.<\/p>\n

Appellant and the first respondent had entered into a partnership deed under which a firm was constituted. Share of the first respondent in the profit\/loss was alleged to be 55% while the share of the appellant \u2013 45%.<\/p>\n

Further, in the year 2017, a document styled as \u201csammati-lekh\u201d 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. The appellant also agreed to relinquish a certain parcel of land belonging to the firm.<\/p>\n

Anshin H Desai, Senior Counsel on behalf of the appellant submitted that:<\/p>\n

(i) An FIR was lodged on 6 December 2020 containing serious allegations involving:<\/p>\n

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  1. Interpolation of the deed of relinquishment executed by the appellant with the consequence that whereas the interest in only one property at Akota was relinquished, several additional properties have been included and the nature of the interpolation would be obvious on a bare perusal of the documents which have been annexed to the paper book;<\/li>\n
  2. The deed of dissolution of partnership is purported to have been executed on a day when the appellant was not present in India but was traveling to Dubai;<\/li>\n<\/ol>\n

    (ii) \u00a0The FIR has been registered on the basis of the above allegations implicating the commission of offences punishable under Sections 405, 420, 465, 467, 468 and 471 of the Penal Code;<\/p>\n

    (iii) \u00a0On the representation made by the first respondent, successive Memorandum of Understandings (\u201cMoU<\/strong>\u201d or \u201cMoUs<\/strong>\u201d) were entered into between the appellant and the first respondent; and<\/p>\n

    (iv) \u00a0Pursuant to the settlement, the cheques which were issued by the first respondent have been dishonoured and the title to the lands which were purported to be transferred to the appellant is under a cloud and is not marketable.<\/p>\n

    Bench in view of the consistent position of the Supreme Court, opined that the High Court was not justified in issuing a direction restraining the arrest of the first respondent till the next date of listing without reasons.<\/p>\n

    Court stated that the procedure followed by the High Court of issuing an oral direction restraining the arrest of the first respondent was irregular.<\/p>\n

    Oral observations in court are in the course of 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.<\/p>\n

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    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.<\/span><\/p>\n<\/blockquote>\n

    Further, the Bench noted that the Single Judge by an impugned order had issued an ad interim protection against arrest till the next date of listing. The reasons recorded were as follows:<\/p>\n