Legal Talks by Desikanoon

Supreme Court on Oral Orders Granting Interim Protection from Arrest to Accused Persons

Episode Summary

On today’s show, we will discuss the case of Salimbhai Hamidbhai Menon v. Niteshkumar Maganbhai Patel & Another, 2021 SCC OnLine SC 647, wherein the Hon’ble Supreme Court discussed a matter in which through an Oral Order, a High Court had granted interim protection against arrest of Respondent No. 1 in Section 482 proceedings. To know more about Section 482 of CrPC, you may visit my earlier post for which the link is provided in the description.

Episode Notes

On today’s show, we will discuss the case of Ashwini Kumar Upadhyay v. Union of India & Another, 2021 SCC OnLine SC 629, wherein the Hon’ble Supreme Court inter alia discussed about the misuse of Section 321 of the Code of Criminal Procedure, 1973 (in short, “CrPC”) by Prosecutors. Section 321 of CrPC deals with the power of the Prosecutors to withdraw from the Prosecutions.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/interim-oral-482-order-arrest-protection.html

To know more about Section 482, kindly visit https://www.desikanoon.co.in/2021/07/neeharika-principles-interim-protection-section-482-crpc-code-criminal.html

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Credits:

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Episode Transcription

Hi everyone.

Welcome to Legal Talks by Desi Kanoon.

I am Suyash and I am excited to have started this show.

The brief background of the case is that an Application under Section 482 of the Code of Criminal Procedure, 1973 (in short, “CrPC”) for quashing of FIR was lodged against the Respondent No. 1. On 23.12.2020, the High Court while hearing the 482 Application had orally ordered that the Respondent No. 1 may not be arrested till the next date of hearing. Subsequently, on 08.03.2021, the Respondent No. 1 was arrested, and the matter came up for hearing before the High Court on 09.03.2021. On 09.03.2021, the High Court vide a written order directed to release the Respondent No. 1 and not to arrest him till the next of hearing. Such interim protection was continued by the Court in the subsequent hearings as well. The question before the Supreme Court was whether the High Court was justified in issuing an oral order restraining the arrest of Respondent No. 1.

Now, let us understand the pertinent observations by the Supreme Court.

Firstly, the Hon’ble Supreme Court noted that “the procedure followed by the High Court of issuing an oral direction restraining the arrest of the first respondent was irregular.” According to the Court, a specific judicial order was necessary to grant interim protection against arrest.

Secondly, the Court observed that it is the text of a written order that is binding and enforceable and “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.”

Thirdly, the Court cited the case of Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158, wherein it was observed 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 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.”

Fourthly, the Court noted that oral directions of interim protection against arrest are susceptible to gross abuse and such practice would set a dangerous precedent if parties were expected to rely only on the oral observations.

Fifthly, the Court further observed that “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.”

And lastly, the Court cited the recent case of Neeharika Infrastructure Pvt Ltd. v. State of Maharashtra, 2021 SCC OnLine SC 315, wherein it was held that blanket orders granting interim protection against arrest without assigning reasons must be deprecated and may lead to gross miscarriage of justice.

Therefore, in light of the afore-stated reasons, the Hon’ble Supreme Court set aside the impugned Order of the High Court that had continued the interim protection against arrest of Respondent No. 1.

That was all about the case. So, what are my concluding remarks?

Despite issuing amply clear directions, time and again, it is being observed that the High Courts are indulging in the irregular practice of granting interim protection against arrest without assigning reasons. As has been rightly observed by the Supreme Court, a crime is not only against the victim but also against the society in general and hence, due caution must be exercised whenever an interim protection against arrest is granted since it has the propensity to stifle the process of criminal investigation. I hope that such disastrous consequences of passing Oral Interim Orders do not arise in the future.