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The SC states that the High Courts not to pass oral orders against stay of arrest

Approaching the Gujrat High Court, an Accused in the case of SalimbhaiHamidbhai Menon vs. NiteshkumarMaganbhai Patel pleaded for quashing of FIR lodged against him Sections 405, 420, 465, 467, 468 and 471 of the Indian Penal Code 1860. The Accused did so by filing a petition u/s 482. While this petition was pending, the Accused Person was arrested. However, the Gujrat High Court directed to release the Accused when the proceedings of these petitions began. This order was an oral one and was not noted down in the final judgement.

S.482 of IPC states that:

‘Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.’

This means that as per S.482 of IPC, High Court have the power to take steps and give orders that are necessary to take actions under the IPC. The Supreme Court noted that the Gujrat High Court did in fact have complete power and jurisdiction to hear the case. The Supreme Court further stated that the HC also has to power to stay the arrest of Accused Persons u/s 482 however, it has to be done in writing.

The Supreme Court explained that Oral Orders for stopping arrest instead of written ones not only reduce judicial accountability but also set dangerous precedents for other courts to follow. Written Orders are important in case of stay on arrest of Accused because the reasons for such a stay have to be clearly mentioned and explained in writing for purposes of reasoning and fair decision-making.

Accepting the Appeal, the Supreme Court also stated:

‘The Court must reflect an application of mind to relevant facts and circumstances, including:

  • The nature and gravity of the allegations;
  • The seriousness of the alleged offence(s);
  • The position of the accused and the likelihood of their availability for investigation; and
  • The basis on which astay of arrest has been granted till the next date.’

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