Judges should speak through judgements and orders, not issue oral directions: Supreme Court

Judges should speak through their judgements and orders and should not issue oral directions as it does not form a part of the judicial record and must be avoided, the Supreme Court said on Tuesday.

The apex court said the element of judicial accountability is lost where oral regimes prevail and this would set a dangerous precedent and is unacceptable.

A bench comprising Justices D. Y. Chandrachud and M. R. Shah made the observations in a judgement on an appeal against a verdict passed by the Gujarat High Court which issued oral direction not to arrest an accused in a case of cheating and criminal breach of trust.

“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 public prosecutor) restraining arrest, does not form a part of the judicial record and must be eschewed,” said the bench.

The top court said the procedure followed by the High Court of issuing an oral direction restraining the arrest of the first respondent was irregular. The bench said that if the High Court was of the view that an opportunity should be granted to counsel for the parties to explore the 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.

The apex court said that in absence of 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 top court said 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.

The bench said that judges speak through their judgments and orders and the written text is capable of being assailed.

Judges, as much as public officials over whose conduct they preside, are accountable for their actions, it said. The top court was hearing an appeal filed by Salimbhai Hamidbhai Menon who had approached the High Court under Section 482 of the Criminal Procedure Code seeking quashing of FIR lodged against him under sections 405 (criminal breach of trust), 420 (cheating), 465 (forgery), 467 (forgery of valuable security, will etc.), 468 (forgery for the purpose of cheating) and 471 (using as genuine a forged document or electronic record) of the Indian Penal Code.

During the pendency of the matter in the high court, Menon was arrested.

When the proceedings were taken up after the arrest, the High Court was of the view that an opportunity should be granted to counsel for the parties to explore the possibility of a settlement and, on that ground, an interim protection against arrest was granted.