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High Court Bar Association Allahabad vs The State Of Uttar Pradesh on 29 February, 2024

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Supreme Court of India

High Court Bar Association Allahabad vs The State Of Uttar Pradesh on 29 February, 2024

Author: Abhay S. Oka

Bench: Pankaj Mithal, Abhay S. Oka

2024 INSC 150

Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.3589 OF 2023

High Court Bar Association, Allahabad … Appellant

versus

State of U.P. Ors. … Respondents

with

Special Leave Petition (Crl.) nos.13284-13289 of 2023

and

Criminal Appeal..Diary no. 49052 of 2023

JUDGMENT

ABHAY S. OKA, J.

Table of Contents
A. FACTUAL BACKGROUND ………………………………………. 2

I. Directions in Asian Resurfacing …………………………… 2

II. Order of reference to Larger Bench ……………………… 7

B. SUBMISSIONS ……………………………………………………. 8
C. ANALYSIS………………………………………………………… 14
Signature Not Verified

Digitally signed by
I. Object of passing interim orders ………………………… 14
CHETAN KUMAR
Date: 2024.02.29
15:24:19 IST
Reason:

II. High Court’s power to vacate or modify interim relief
………………………………………………………………………. 16

Criminal Appeal No.3589 of 2023 etc. Page 1 of 47
III. Whether an interim order can come to an end
automatically only due to the lapse of time ……………. 17

IV. Scope of exercise of powers under Article 142 of the
Constitution ……………………………………………………… 21

V. Position of High Courts and its power of
superintendence ………………………………………………… 29

VI. Whether the Court should deal with an issue not
arising for consideration ……………………………………… 32

VII. Clause (3) of Article 226 of the Constitution ……… 33

VIII. Directions issued by the constitutional Courts to
decide pending cases in a time-bound manner ………… 34

IX. Procedure to be adopted by High Courts while passing
interim order of stay of proceedings and for dealing with
the applications for vacating interim stay ………………. 43

D. CONCLUSIONS ………………………………………………….. 44

A. FACTUAL BACKGROUND

By the order dated 1st December 2023, a Bench of three Hon’ble
Judges of this Court expressed a view that a decision of this
Court in the case of
Asian Resurfacing of Road Agency
Private Limited Anr. v. Central Bureau of Investigation1
requires reconsideration by a larger Bench.

I. Directions in Asian Resurfacing

1. In Asian Resurfacing1, this Court dealt with the scope
of interference by the High Court with an order of framing
charge passed by the Special Judge under the provisions of the
Prevention of Corruption Act, 1988 (for short, ‘the PC Act’). The

1
(2018) 16 SCC 299

Criminal Appeal No.3589 of 2023 etc. Page 2 of 47
issue was whether an order of framing charge was an
interlocutory order. The High Court held that an order of
framing charge under the
PC Act was interlocutory. A Bench
of two Hon’ble Judges of this Court, by the order dated 9th
September 2013, referred the case to a larger Bench to consider
the issue of whether the case of
Mohan Lal Magan Lal
Thacker v. State of Gujarat2 was correctly decided. A Bench
of three Hon’ble Judges held that the order of framing charge
was neither an interlocutory nor a final order. Therefore, it was
held that the High Court has jurisdiction in appropriate cases
to consider a challenge to an order of framing charge.

Furthermore, the High Court has jurisdiction to grant a stay of
the trial proceedings. Thereafter, it proceeded to consider in
which cases a stay of the proceedings ought to be granted. The
Bench considered the question in the context of a criminal trial,
particularly under the
PC Act. In paragraphs 30 and 31, the
Bench observed thus:

“30. It is well accepted that delay in a
criminal trial, particularly in the
PC Act
cases, has deleterious effect on the
administration of justice in which the
society has a vital interest. Delay in trials
affects the faith in Rule of Law and
efficacy of the legal system. It affects
social welfare and development. Even in
civil or tax cases it has been laid down
that power to grant stay has to be
exercised with restraint. Mere prima
facie case is not enough. Party seeking
stay must be put to terms and stay
should not be an incentive to delay. The

2
AIR 1968 SC 733

Criminal Appeal No.3589 of 2023 etc. Page 3 of 47
order granting stay must show
application of mind. The power to grant
stay is coupled with accountability.
[
Siliguri Municipality v. Amalendu Das,
(1984) 2 SCC 436, para 4 : 1984 SCC
(Tax) 133;
CCE v. Dunlop India Ltd.,
(1985) 1 SCC 260, para 5 : 1985 SCC
(Tax) 75;
State (UT of Pondicherry) v. P.V.
Suresh, (1994) 2 SCC 70, para 15
and
State of W.B. v. Calcutta Hardware
Stores, (1986) 2 SCC 203, para 5]

31. Wherever stay is granted, a
speaking order must be passed
showing that the case was of
exceptional nature and delay on
account of stay will not prejudice the
interest of speedy trial in a corruption
case. Once stay is granted,
proceedings should not be adjourned,
and concluded within two-three
months.”
(Emphasis added)

2. We have been called upon to decide the correctness of the
view taken in paragraphs 36 and 37 of
the said decision, which
read thus:

“36. In view of the above, situation of
proceedings remaining pending for long
on account of stay needs to be remedied.
Remedy is required not only for
corruption cases but for all civil and
criminal cases where on account of stay,
civil and criminal proceedings are held
up. At times, proceedings are adjourned
sine die on account of stay. Even after
stay is vacated, intimation is not received
and proceedings are not taken up. In an
attempt to remedy this situation, we
consider it appropriate to direct that

Criminal Appeal No.3589 of 2023 etc. Page 4 of 47
in all pending cases where stay
against proceedings of a civil or
criminal trial is operating, the same
will come to an end on expiry of six
months from today unless in an
exceptional case by a speaking order
such stay is extended. In cases where
stay is granted in future, the same will
end on expiry of six months from the
date of such order unless similar
extension is granted by a speaking
order. The speaking order must show
that the case was of such exceptional
nature that continuing the stay was
more important than having the trial
finalised. The trial court where order of
stay of civil or criminal proceedings is
produced, may fix a date not beyond six
months of the order of stay so that on
expiry of period of stay, proceedings can
commence unless order of extension of
stay is produced.

37. Thus, we declare the law to be that
order framing charge is not purely an
interlocutory order nor a final order.

Jurisdiction of the High Court is not
barred irrespective of the label of a
petition, be it under Sections 397 or 482
CrPC or Article 227 of the Constitution.
However, the said jurisdiction is to be
exercised consistent with the legislative
policy to ensure expeditious disposal of a
trial without the same being in any
manner hampered. Thus considered, the
challenge to an order of charge should be
entertained in a rarest of rare case only
to correct a patent error of jurisdiction
and not to reappreciate the matter. Even
where such challenge is entertained
and stay is granted, the matter must
be decided on day-to-day basis so that

Criminal Appeal No.3589 of 2023 etc. Page 5 of 47
stay does not operate for an unduly
long period. Though no mandatory
time-limit may be fixed, the decision
may not exceed two-three months
normally. If it remains pending longer,
duration of stay should not exceed six
months, unless extension is granted
by a specific speaking order, as
already indicated. Mandate of speedy
justice applies to the
PC Act cases as well
as other cases where at trial stage
proceedings are stayed by the higher
court i.e. the High Court or a court below
the High Court, as the case may be. In
all pending matters before the High
Courts or other courts relating to the
PC
Act or all other civil or criminal cases,
where stay of proceedings in a pending
trial is operating, stay will automatically
lapse after six months from today unless
extended by a speaking order on the
above parameters. Same course may
also be adopted by civil and criminal
appellate/Revisional Courts under the
jurisdiction of the High Courts. The trial
courts may, on expiry of the above
period, resume the proceedings without
waiting for any other intimation unless
express order extending stay is
produced.”
(Emphasis added)

3. A Miscellaneous Application was filed in the decided case,
in light of the order passed on 4th December 2019 by the
Learned Additional Chief Judicial Magistrate, Pune. When the
learned Magistrate was called upon to proceed with the trial on
the ground of automatic vacation of stay after the expiry of a
period of six months, the learned Magistrate expressed a view
that when the jurisdictional High Court had passed an order of

Criminal Appeal No.3589 of 2023 etc. Page 6 of 47
stay, a Court subordinate to the High Court cannot pass any
order contrary to the order of stay. By the order dated 15th
October 2020, this Court held that when the stay granted by
the High Court automatically expires, unless an extension is
granted for good reasons, the Trial Court, on expiry of a period
of six months, must set a date for trial and go ahead with the
same. Later, an attempt was made to seek clarification of the
law
laid down in the case of Asian Resurfacing1. This Court,
by the order dated 25th April 2022, did not apply the direction
issued in Asian Resurfacing1 to the facts of the case before it.
An attempt was made to apply the directions to an order of stay
of the order of the learned Single Judge of the High Court
passed by a Division Bench in a Letters Patent Appeal.

II. Order of reference to Larger Bench

4. In the order of reference dated 1st December 2023, in
paragraph 10, this Court observed thus:

“10. We have reservations in regard to
the correctness of the broad
formulations of principle in the above
terms. There can be no gainsaying the
fact that a stay of an indefinite nature
results in prolonging civil or criminal
proceedings, as the case may be, unduly.
At the same time, it needs to be factored
in that the delay is not always on
account of conduct of the parties
involved. The delay may also be
occasioned by the inability of the Court
to take up proceedings expeditiously.

The principle which has been laid
down in
the above decision to the
effect that the stay shall
automatically stand vacated (which

Criminal Appeal No.3589 of 2023 etc. Page 7 of 47
would mean an automatic vacation of
stay without application of judicial
mind to whether the stay should or
should not be extended further) is
liable to result in a serious
miscarriage of justice.”
(Emphasis added)

5. We are called upon to decide the following questions: –

(a) Whether this Court, in the exercise of its jurisdiction
under
Article 142 of the Constitution of India, can
order automatic vacation of all interim orders of the
High Courts of staying proceedings of Civil and
Criminal cases on the expiry of a certain period?

(b) Whether this Court, in the exercise of its jurisdiction
under
Article 142 of the Constitution of India, can
direct the High Courts to decide pending cases in
which interim orders of stay of proceedings has been
granted on a day-to-day basis and within a fixed
period?

B. SUBMISSIONS

6. The main submissions were canvassed by Shri Rakesh
Dwivedi, the learned senior counsel appearing on behalf of the
appellant in Criminal Appeal no.3589 of 2023. We are
summarising the submissions of Shri Rakesh Dwivedi as
follows:

a. Automatic Vacation of the interim order is in the
nature of judicial legislation. This Court cannot
engage in judicial legislation;

Criminal Appeal No.3589 of 2023 etc. Page 8 of 47

b. Article 226 is a part of the basic structure of the
Constitution of India, and it can neither be shut out
nor whittled down by the exercise of powers under
Articles 141 and 142;

c. The High Court is also a constitutional Court which
is not judicially subordinate to this Court;

d. An order granting interim relief cannot be passed
without an application of judicial mind. Application
of mind is a pre-requisite of judicial decision
making. The absence of application of mind would
render a decision arbitrary. Similarly, an order
vacating interim relief cannot be passed without the
application of judicial mind;

e. If an interim order is to be passed, it should be
initially for a short period so that there is an
effective opportunity for the respondent to contest
the same;

f. Two Constitution Benches in the cases of Abdul
Rehman Antulay Ors. v. R.S. Nayak Anr.3
and
P. Ramachandra Rao v. State of
Karnataka4 held that it is not permissible for this
Court to fix the time limit for completion of a trial;

3

(1992) 1 SCC 225
4
(2002) 4 SCC 578

Criminal Appeal No.3589 of 2023 etc. Page 9 of 47
g. No such directions could have been issued in the
exercise of the jurisdiction of this Court under
Article 142 of the Constitution of India;

h. Even under Article 226 (3) of the Constitution, an
interim order cannot be automatically vacated
unless a specific application is made for vacating
the interim order;

i. A provision of automatic vacation of the Appellate
Tribunal’s stay order was incorporated in
Section
254 (2A) of the Income Tax Act, 1961 (for short, ‘the
IT Act’). It provided that if an appeal preferred
before the Appellate Tribunal was not disposed of
within 365 days, the stay shall stand vacated even
if the delay in disposing of the appeal is not
attributable to the assessee. This court struck
down the provision in the case of
Deputy
Commissioner of Income Tax Anr. v. Pepsi
Foods Limited5 on the ground that it was
manifestly arbitrary; and

j. The automatic vacation of interim relief is unjust,
unfair and unreasonable.

7. Shri Tushar Mehta, the learned Solicitor General
appearing for the State of Uttar Pradesh, supported the
submissions of Shri Dwivedi. In addition, he submitted that:

5

(2021) 7 SCC 413

Criminal Appeal No.3589 of 2023 etc. Page 10 of 47
a. As held by the Constitution Bench in the case of
Raza Buland Sugar Co. Ltd. v. Municipal Board,
Rampur6, laws of procedure are grounded in
principles of natural justice, which require that no
decision can be reached behind the back of a person
and in his absence;

b. If the condition imposed by a provision of law to do
a certain thing within a time frame is upon the
institution and the consequences of that institution
failing to comply with the condition are to fall upon
someone who has no control over the institution,
the provision of law will have to be construed as
directory;

c. An interim relief order is always granted after
considering the three factors: prima facie case, the
balance of convenience and irreparable injury to the
aggrieved party. Once a finding is recorded
regarding the entitlement of the
appellant/applicant to get the order of stay, the
order does not become automatically bad on the
ground that it has lived for six months; and

d. In the decision of this Court in Kailash v. Nanhku
Ors7, it has been held that the process of justice
may be speeded up and hurried, but fairness, which

6
AIR 1965 SC 895
7
(2005) 4 SCC 480

Criminal Appeal No.3589 of 2023 etc. Page 11 of 47
is the basic element of justice, cannot be permitted
to be buried. The discretion conferred upon the
High Court cannot be taken away by exercising
power under
Article 142 of the Constitution of
India.

8. Shri Gaurav Mehrotra, the learned counsel appearing for
the applicant in I.A. no.252872 of 2023 in Criminal Appeal
no.3589 of 2023, in addition to the aforesaid submissions,
relied upon a decision of the Constitution Bench in the case of
Sanjeev Coke Manufacturing Company v. M/s. Bharat
Coking Coal Ltd. Anr8, to contend that the Court should
not decide any important question without there being a proper
lis.

9. Shri Vijay Hansaria, the learned senior counsel
appearing for the Gauhati High Court Bar Association, made
the following submissions:

a. As regards the interpretation of clause (3) of Article
226 of the Constitution of India, various High
Courts have taken different views on the issue of
whether the provision for automatic vacation of stay
is mandatory or directory. He urged that the
provision will have to be held as a directory;

b. In Asian Resurfacing1, the Court was dealing with
a petition filed in the High Court arising from a
prosecution under the
PC Act. The cases of other

8
(1983) 1 SCC 147

Criminal Appeal No.3589 of 2023 etc. Page 12 of 47
categories were not the subject matter of challenge
before this Court;

c. The power under Article 142 of the Constitution of
India can be exercised for doing complete justice in
any case or matter pending before it. The issue of
the duration of the order of stay did not arise in the
case of Asian Resurfacing1; and

d. A successful litigant whose application for stay is
allowed by the High Court cannot be prejudiced
only on the ground that the High Court does not
hear the main case within six months for reasons
beyond the control of the said litigant.

10. Shri Amit Pai, the learned counsel appearing for the
appellant in one of the appeals, while adopting the
submissions, relied upon a decision of this Court in the case of
Deoraj v. State of Maharashtra Ors.9 and contended that
recourse is taken to the order of grant of interim relief as the
conclusion of hearing on merits is likely to take some time. He
submitted that the said object has not been considered in
Asian Resurfacing1. He urged that passing an interim order
of stay is a judicial act. Therefore, such an order must be
vacated only by a judicial act.

11. Prof (Dr) Pankaj K Phadnis, representing the intervenor –
Abhinav Bharat Congress, has filed written submissions. He

9
(2004) 4 SCC 697

Criminal Appeal No.3589 of 2023 etc. Page 13 of 47
has contended that he was not permitted to join the hearing
through video conferencing. He has come out with the draft of
Supreme Court Rules, 2024. His submissions, based on the
draft, are entirely irrelevant.

C. ANALYSIS

12. We have no manner of doubt that the direction issued in
paragraph 36 of Asian Resurfacing1 regarding automatic
vacation of stay has been issued in the exercise of the
jurisdiction of this Court under
Article 142 of the Constitution
of India. Even the direction in paragraph 37 of conducting day-
to-day hearing has been issued in exercise of the same
jurisdiction. The effect of the direction issued in paragraph 36
is that the interim order of stay granted in favour of a litigant
stands vacated without even giving him an opportunity of being
heard, though there may not be any default on his part.

I. Object of passing interim orders

13. Before we examine the questions, we need to advert to the
object of passing orders of interim relief pending the final
disposal of the main case. The reason is that the object of
passing interim order has not been considered while deciding
Asian Resurfacing1. An order of interim relief is usually
granted in the aid of the final relief sought in the case. An
occasion for passing an order of stay of the proceedings
normally arises when the High Court is dealing with a challenge
to an interim or interlocutory order passed during the
pendency of the main case before a trial or appellate Court. The
High Court can grant relief of the stay of hearing of the main

Criminal Appeal No.3589 of 2023 etc. Page 14 of 47
proceedings on being satisfied that a prima facie case is made
out and that the failure to stay the proceedings before the
concerned Court in all probability may render the remedy
adopted infructuous. When the High Court passes an interim
order of stay, though the interim order may not expressly say
so, the three factors, viz; prima facie case, irreparable loss, and
balance of convenience, are always in the back of the judges’
minds. Though interim orders of stay of proceedings cannot be
routinely passed as a matter of course, it cannot be said that
such orders can be passed only in exceptional cases.
Nevertheless, the High Courts, while passing orders of stay in
serious cases like the offences under the
PC Act or serious
offences against women and children, must be more cautious
and circumspect. An occasion for passing an order of stay of
proceeding arises as it is not possible for the High Court to take
up the case for final hearing immediately. While entertaining a
challenge to an order passed in a pending case, if the pending
case is not stayed, the trial or the appellate Court may decide
the pending case, rendering the remedy before the High Court
ineffective. Such a situation often leads to the passing of an
order of remand. In our legal system, which is facing a docket
explosion, an order of remand should be made only as a last
resort. The orders of remand not only result in more delays but
also increase the cost of litigation. Therefore, to avoid the
possibility of passing an order of remand, the grant of stay of
proceedings is called for in many cases.

Criminal Appeal No.3589 of 2023 etc. Page 15 of 47

II. High Court’s power to vacate or modify interim relief

14. When a High Court grants a stay of the proceedings while
issuing notice without giving an opportunity of being heard to
the contesting parties, it is not an interim order, but it is an
ad-interim order of stay. It can be converted into an interim
order of stay only after an opportunity of being heard is granted
on the prayer for interim relief to all the parties to the
proceedings. Ad-interim orders, by their very nature, should be
of a limited duration. Therefore, such orders do not pose any
problem.

15. The High Courts are always empowered to vacate or
modify an order of interim relief passed after hearing the
parties on the following, amongst other grounds: –

(a) If a litigant, after getting an order of stay, deliberately
prolongs the proceedings either by seeking adjournments
on unwarranted grounds or by remaining absent when
the main case in which interim relief is granted is called
out for hearing before the High Court with the object of
taking undue advantage of the order of stay;

(b) The High Court finds that the order of interim relief is
granted as a result of either suppression or
misrepresentation of material facts by the party in whose
favour the interim order of stay has been made; and

(c) The High Court finds that there is a material change in
circumstances requiring interference with the interim
order passed earlier. In a given case, a long passage of

Criminal Appeal No.3589 of 2023 etc. Page 16 of 47
time may bring about a material change in
circumstances.

These grounds are not exhaustive. There can be other valid
grounds for vacating an order of stay.

III. Whether an Interim Order can come to an end
automatically only due to the lapse of time

16. Interim order of stay can come to an end: –

(a) By disposal of the main case by the High Court, in
which the interim order has been passed. The disposal
can be either on merits or for default or other reasons
such as the abatement of the case; or

(b) by a judicial order vacating interim relief, passed after
hearing the contesting parties on the available
grounds, some of which we have already referred to by
way of illustration.

Elementary principles of natural justice, which are well
recognised in our jurisprudence, mandate that an order of
vacating interim relief or modification of the interim relief is
passed only after hearing all the affected parties. An order of
vacating interim relief passed without hearing the beneficiary
of the order is against the basic tenets of justice. Application
of mind is an essential part of any decision-making process.
Therefore, without application of mind, an order of interim stay
cannot be vacated only on the ground of lapse of time when the
litigant is not responsible for the delay. An interim order
lawfully passed by a Court after hearing all contesting parties
is not rendered illegal only due to the long passage of time.

Criminal Appeal No.3589 of 2023 etc. Page 17 of 47

Moreover, the directions issued in Asian Resurfacing1
regarding automatic vacation of interim orders of stay passed
by all High Courts are applicable, irrespective of the merits of
individual cases. If a High Court concludes after hearing all
the concerned parties that a case was made out for the grant
of stay of proceedings of a civil or criminal case, the order of
stay cannot stand automatically set aside on expiry of the
period of six months only on the ground that the High Court
could not hear the main case. If such an approach is adopted,
it will be completely contrary to the concept of fairness. If an
interim order is automatically vacated without any fault on the
part of the litigant only because the High Court cannot hear
the main case, the maxim “actus curiae neminem gravabit” will
apply. No litigant should be allowed to suffer due to the fault
of the Court. If that happens, it is the bounden duty of the
Court to rectify its mistake.

17. In the subsequent clarification in the case of Asian
Resurfacing1, a direction has been issued to the Trial Courts
to immediately fix a date for hearing after the expiry of the
period of six months without waiting for any formal order of
vacating stay passed by the High Court. This gives an unfair
advantage to the respondent in the case before the High Court.
Moreover, it adversely affects a litigant’s right to the remedies
under
Articles 226 and 227 of the Constitution of India. Such
orders virtually defeat the right of a litigant to seek and avail of
statutory remedies such as revisions, appeals, and applications
under
Section 482 of the Code of Criminal Procedure, 1973 (for

Criminal Appeal No.3589 of 2023 etc. Page 18 of 47
short, ‘Cr. PC’) as well as the remedies under
the Code of Civil
Procedure, 1908 (for short, ‘
CPC’). All interim orders of stay
passed by all High Courts cannot be set at naught by a stroke
of pen only on the ground of lapse of time.

18. The legislature attempted to provide for an automatic
vacation of stay granted by the Income Tax Appellate Tribunal
by introducing the third proviso to
Section 254 (2A) of the IT
Act. It provided that if an appeal in which the stay was granted
was not heard within a period of 365 days, it would amount to
the automatic vacation of stay. In the case of Pepsi Foods
Limited5, this Court held that a provision automatically
vacating a stay was manifestly arbitrary and, therefore,
violative of
Article 14 of the Constitution of India. Paragraphs
20 and 22 of
the said decision read thus:

“20. Judged by both these
parameters, there can be no doubt
that the third proviso to Section
254(2-
A) of the Income Tax Act,
introduced by the
Finance Act, 2008,
would be both arbitrary and
discriminatory and, therefore, liable
to be struck down as offending
Article
14 of the Constitution of India. First
and foremost, as has correctly been
held in the impugned judgment,
unequals are treated equally in that
no differentiation is made by the third
proviso between the assessees who are
responsible for delaying the
proceedings and assessees who are
not so responsible. This is a little
peculiar in that the legislature itself has
made the aforesaid differentiation in the
second proviso to Section 254(2-A) of the

Criminal Appeal No.3589 of 2023 etc. Page 19 of 47
Income Tax Act, making it clear that a
stay order may be extended up to a
period of 365 days upon satisfaction that
the delay in disposing of the appeal is not
attributable to the assessee. We have
already seen as to how, as correctly held
by
Narang Overseas [Narang Overseas
(P) Ltd. v. Income Tax Appellate Tribunal,
2007 SCC OnLine Bom 671 : (2007) 295
ITR 22] , the second proviso was
introduced by the
Finance Act, 2007 to
mitigate the rigour of the first proviso to
Section 254(2-
A) of the Income Tax Act
in its previous avatar. Ordinarily, the
Appellate Tribunal, where possible, is to
hear and decide appeals within a period
of four years from the end of the financial
year in which such appeal is filed. It is
only when a stay of the impugned order
before the Appellate Tribunal is granted,
that the appeal is required to be disposed
of within 365 days. So far as the disposal
of an appeal by the Appellate Tribunal is
concerned, this is a directory provision.
However, so far as vacation of stay on
expiry of the said period is concerned,
this condition becomes mandatory so far
as the assessee is concerned.”

21. .. .. .. .. .. .. .. .. .. ..

22. Since the object of the third
proviso to Section 254(2-
A) of the
Income Tax Act is the automatic
vacation of a stay that has been
granted on the completion of 365
days, whether or not the assessee is
responsible for the delay caused in
hearing the appeal, such object being
itself discriminatory, in the sense
pointed out above, is liable to be
struck down as violating
Article 14 of

Criminal Appeal No.3589 of 2023 etc. Page 20 of 47
the Constitution of India. Also, the
said proviso would result in the
automatic vacation of a stay upon the
expiry of 365 days even if the
Appellate Tribunal could not take up
the appeal in time for no fault of the
assessee. Further, the vacation of stay
in favour of the Revenue would ensue
even if the Revenue is itself
responsible for the delay in hearing
the appeal. In this sense, the said
proviso is also manifestly arbitrary
being a provision which is capricious,
irrational and disproportionate so far
as the assessee is concerned.”
(Emphasis added)

Therefore, even if the legislature were to come out with such a
provision for automatic vacation of stay, the same may not
stand judicial scrutiny as it may suffer from manifest
arbitrariness.

IV. Scope of exercise of powers under Article 142 of the
Constitution

19. The directions issued in Asian Resurfacing1 are
obviously issued in the exercise of jurisdiction of this Court
under
Article 142 of the Constitution, which confers
jurisdiction on this Court to pass such a decree or make such
order necessary for doing complete justice in any case or matter
pending before it. In Asian Resurfacing1, the first issue was,
whether an order framing of charge in a case under the
PC Act
was in the nature of an interlocutory order. The second
question was of the scope of powers of the High Court to stay
proceedings of the trial under the
PC Act while entertaining a

Criminal Appeal No.3589 of 2023 etc. Page 21 of 47
challenge to an order of framing charge. The question
regarding the duration of the interim orders passed by the High
Courts in various other proceedings did not specifically arise
for consideration in the case of Asian Resurfacing1. The
provisions of
Article 142 of the Constitution of India are meant
to further the cause of justice and to secure complete justice.
The directions in the exercise of power under
Article 142 cannot
be issued to defeat justice. The jurisdiction under
Article 142
cannot be invoked to pass blanket orders setting at naught a
very large number of interim orders lawfully passed by all the
High Courts, and that too, without hearing the contesting
parties. The jurisdiction under
Article 142 can be invoked only
to deal with extraordinary situations for doing complete justice
between the parties before the Court.

20. While dealing with the scope of power under Article 142,
a Constitution Bench of this Court in the case of
Prem Chand
Garg Anr. v. The Excise Commissioner, U.P. and Ors.10,
in paragraphs 12 and 13 held thus:

“12. Basing himself on this decision, the
Solicitor-General argues that the power
conferred on this Court under
Article
142(1) is comparable to the privileges
claimed by the members of the State
Legislatures under the latter part of
Article 194(3), and so, there can be no
question of striking down an order passed
by this Court under
Article 142(1) on the
ground that it is inconsistent with Article

32. It would be noticed that this argument
proceeds on the basis that the

10
1962 SCC Online SC 37

Criminal Appeal No.3589 of 2023 etc. Page 22 of 47
order for security infringes the
fundamental right guaranteed by
Article
32 and it suggests that under
Article
142(1) this Court has jurisdiction to pass
such an order. In our opinion, the
argument thus presented is
misconceived. In this connection, it is
necessary to appreciate the actual
decision in the case of Sharma [(1959) 1
SCR 806 at 859-860] and its effect. The
actual decision was that the rights
claimable under the latter part of
Article
194(3) were not subject to
Article 19(1)(a),
because the said rights had been
expressly provided for by a constitutional
provision viz.
Article 194(3), and it would
be impossible to hold that one part of the
Constitution is inconsistent with another
part. The position would, however, be
entirely different if the State Legislature
was to pass a law in regard to the
privileges of its members. Such a law
would obviously have to be consistent
with
Article 19(1)(a). If any of the
provisions of such a law were to
contravene any of the fundamental rights
guaranteed by Part III, they would be
struck down as being unconstitutional.

Similarly, there can be no doubt that if in
respect of petitions under
Article 32 a law
is made by Parliament as contemplated by
Article 145(1), and such a law, in
substance, corresponds to the provisions
of Order 25 Rule 1 or Order 41 Rule 10, it
would be struck down on the ground that
it purports to restrict the fundamental
right guaranteed by
Article 32. The
position of an order made either under the
rules framed by this Court or under the
jurisdiction of this Court under
Article
142(1) can be no different. If this aspect of
the matter is borne in mind, there would

Criminal Appeal No.3589 of 2023 etc. Page 23 of 47
be no difficulty in rejecting the Solicitor-

General’s argument based on Article
142(1). The powers of this Court are no
doubt very wide and they are intended
to be and will always be exercised in the
interest of justice. But that is not to
say that an order can be made by this
Court which is inconsistent with the
fundamental rights guaranteed by Part
III of the Constitution. An order which
this Court can make in order to do
complete justice between the parties,
must not only be consistent with the
fundamental rights guaranteed by the
Constitution, but it cannot even be
inconsistent with the substantive
provisions of the relevant statutory
laws. Therefore, we do not think it would
be possible to hold that
Article 142(1)
confers upon this Court powers which can
contravene the provisions of
Article 32.

13. In this connection, it may be pertinent
to point out that the wide powers which
are given to this Court for doing complete
justice between the parties, can be used
by this Court, for instance, in adding
parties to the proceedings pending before
it, or in admitting additional evidence, or
in remanding the case, or in allowing a
new point to be taken for the first time. It
is plain that in exercising these and
similar other powers, this Court would
not be bound by the relevant provisions
of procedure if it is satisfied that a
departure from the said procedure is
necessary to do complete justice
between the parties.”

(Emphasis added)

Criminal Appeal No.3589 of 2023 etc. Page 24 of 47

21. Another Constitution Bench in the case of Supreme
Court
Bar Association v. Union of India Anr.11, in
paragraphs 47 and 48, held thus:

“47. The plenary powers of this Court
under
Article 142 of the Constitution are
inherent in the Court and
are complementary to those powers
which are specifically conferred on the
Court by various statutes though are not
limited by those statutes. These powers
also exist independent of the statutes
with a view to do complete justice
between the parties. These powers are of
very wide amplitude and are in the
nature of supplementary powers. This
power exists as a separate and
independent basis of jurisdiction apart
from the statutes. It stands upon the
foundation and the basis for its exercise
may be put on a different and perhaps
even wider footing, to prevent injustice in
the process of litigation and to do
complete justice between the parties.
This plenary jurisdiction is, thus, the
residual source of power which this
Court may draw upon as
necessary whenever it is just and
equitable to do so and in particular to
ensure the observance of the due
process of law, to do complete justice
between the parties, while
administering justice according to
law. There is no doubt that it is an
indispensable adjunct to all other
powers and is free from the restraint of
jurisdiction and operates as a valuable
weapon in the hands of the Court to
11
(1998) 4 SCC 409

Criminal Appeal No.3589 of 2023 etc. Page 25 of 47
prevent “clogging or obstruction of the
stream of justice”. It, however, needs to
be remembered that the powers
conferred on the Court by
Article 142
being curative in nature cannot be
construed as powers which authorise
the Court to ignore the substantive
rights of a litigant while dealing with
a cause pending before it. This power
cannot be used to “supplant”
substantive law applicable to the case or
cause under consideration of the Court.

Article 142, even with the width of its
amplitude, cannot be used to build a
new edifice where none existed
earlier, by ignoring express statutory
provisions dealing with a subject and
thereby to achieve something
indirectly which cannot be achieved
directly. Punishing a contemner
advocate, while dealing with a contempt
of court case by suspending his licence
to practice, a power otherwise statutorily
available only to the Bar Council of
India, on the ground that the contemner
is also an advocate, is, therefore, not
permissible in exercise of the jurisdiction
under
Article 142. The construction of
Article 142 must be functionally
informed by the salutary purposes of the
article, viz., to do complete justice
between the parties. It cannot be
otherwise. As already noticed in a case of
contempt of court, the contemner and
the court cannot be said to be litigating
parties.

48. The Supreme Court in exercise of
its jurisdiction under
Article 142 has
the power to make such order as
is necessary for doing complete
justice “between the parties in any

Criminal Appeal No.3589 of 2023 etc. Page 26 of 47
cause or matter pending before it”.

The very nature of the power must
lead the Court to set limits for itself
within which to exercise those powers
and ordinarily it cannot disregard a
statutory provision governing a
subject, except perhaps to balance the
equities between the conflicting
claims of the litigating parties by
“ironing out the creases” in a cause
or matter before it. Indeed this Court is
not a court of restricted jurisdiction of
only dispute-settling. It is well
recognised and established that this
Court has always been a law-maker and
its role travels beyond merely dispute-
settling. It is a “problem-solver in the
nebulous areas” (see
K.
Veeraswami v. Union of India [(1991) 3
SCC 655 : 1991 SCC (Cri) 734] but the
substantive statutory provisions dealing
with the subject-matter of a given case
cannot be altogether ignored by this
Court, while making an order under
Article 142. Indeed, these constitutional
powers cannot, in any way,
be controlled by any statutory provisions
but at the same time these powers are
not meant to be exercised when their
exercise may come directly in
conflict with what has been expressly
provided for in a statute dealing
expressly with the subject.”
(Emphasis added)

22. It is very difficult to exhaustively lay down the
parameters for the exercise of powers under
Article 142 of the
Constitution of India due to the very nature of such powers.

Criminal Appeal No.3589 of 2023 etc. Page 27 of 47

However, a few important parameters which are relevant to the
issues involved in the reference are as follows:-

(i) The jurisdiction can be exercised to do complete
justice between the parties before the Court. It cannot
be exercised to nullify the benefits derived by a large
number of litigants based on judicial orders validly
passed in their favour who are not parties to the
proceedings before this Court;

(ii) Article 142 does not empower this Court to ignore the
substantive rights of the litigants; and

(iii) While exercising the jurisdiction under Article 142 of
the Constitution of India, this Court can always issue
procedural directions to the Courts for streamlining
procedural aspects and ironing out the creases in the
procedural laws to ensure expeditious and timely
disposal of cases. This is because, while exercising
the jurisdiction under
Article 142, this Court may not
be bound by procedural requirements of law.

However, while doing so, this Court cannot affect the
substantive rights of those litigants who are not
parties to the case before it. The right to be heard
before an adverse order is passed is not a matter of
procedure but a substantive right.

(iv) The power of this Court under Article 142 cannot be
exercised to defeat the principles of natural justice,
which are an integral part of our jurisprudence.

Criminal Appeal No.3589 of 2023 etc. Page 28 of 47

V. Position of the High Courts and its power of
superintendence

23. A High Court is also a constitutional Court. It is well
settled that it is not judicially subordinate to this Court. In the
case of
Tirupati Balaji Developers (P) Ltd. Ors. v. State
of Bihar Ors.12, this Court has explained the position of the
High Courts vis-à-vis this Court. In paragraph 8, this Court
observed thus:

“8. Under the constitutional scheme
as framed for the judiciary, the
Supreme Court and the High Courts,
both are courts of record. The High
Court is not a court “subordinate” to
the Supreme Court. In a way the canvas
of judicial powers vesting in the High
Court is wider inasmuch as it has
jurisdiction to issue all prerogative writs
conferred by
Article 226 of the
Constitution for the enforcement of any
of the rights conferred by Part III of the
Constitution and for any other purpose
while the original jurisdiction of the
Supreme Court to issue prerogative writs
remains confined to the enforcement of
fundamental rights and to deal with
some such matters, such as Presidential
elections or inter-State disputes which
the Constitution does not envisage being
heard and determined by High Courts.
The High Court exercises power of
superintendence under
Article 227 of
the Constitution over all subordinate
courts and tribunals; the Supreme
Court has not been conferred with any
power of superintendence. If the
Supreme Court and the High Courts

12
(2004) 5 SCC 1

Criminal Appeal No.3589 of 2023 etc. Page 29 of 47
both were to be thought of as brothers
in the administration of justice, the
High Court has larger jurisdiction but
the Supreme Court still remains the
elder brother. There are a few provisions
which give an edge, and assign a
superior place in the hierarchy, to the
Supreme Court over High Courts. So far
as the appellate jurisdiction is
concerned, in all civil and criminal
matters, the Supreme Court is the
highest and the ultimate court of appeal.

It is the final interpreter of the law.

Under Article 139-A, the Supreme Court
may transfer any case pending before
one High Court to another High Court or
may withdraw the case to itself. Under
Article 141 the law declared by the
Supreme Court shall be binding on all
courts, including High Courts, within the
territory of India. Under
Article 144 all
authorities, civil and judicial, in the
territory of India — and that would
include High Courts as well — shall act
in aid of the Supreme Court.”
(Emphasis added)

A High Court is constitutionally independent of the Supreme
Court of India and is not subordinate to this Court. This Court
has dealt with the issue of jurisdiction of the High Courts in
the case of
L. Chandra Kumar v. Union of India Ors13.
The relevant part of paragraph 78 and paragraph 79 read thus:

“78. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..

.. .. .. We, therefore, hold that the
power of judicial review over
legislative action vested in the High
Courts under
Article 226 and in this

13
(1997) 3 SCC 261

Criminal Appeal No.3589 of 2023 etc. Page 30 of 47
Court under
Article 32 of the
Constitution is an integral and
essential feature of the Constitution,
constituting part of its basic
structure. Ordinarily, therefore, the
power of High Courts and the Supreme
Court to test the constitutional
validity of legislations can never be
ousted or excluded.

79. We also hold that the power vested
in the High Courts to exercise judicial
superintendence over the decisions of
all courts and tribunals within their
respective jurisdictions is also part of
the basic structure of the
Constitution. This is because a
situation where the High Courts are
divested of all other judicial functions
apart from that of constitutional
interpretation, is equally to be avoided.”
(Emphasis added)

24. The power of the High Court under Article 227 of the
Constitution to have judicial superintendence over all the
Courts within its jurisdiction will include the power to stay the
proceedings before such Courts. By a blanket direction in the
exercise of power under
Article 142 of the Constitution of India,
this Court cannot interfere with the jurisdiction conferred on
the High Court of granting interim relief by limiting its
jurisdiction to pass interim orders valid only for six months at
a time. Putting such constraints on the power of the High Court
will also amount to making a dent on the jurisdiction of the
High Courts under
Article 226 of the Constitution, which is an
essential feature that forms part of the basic structure of the
Constitution.

Criminal Appeal No.3589 of 2023 etc. Page 31 of 47

VI. Whether the Court should deal with an issue not arising
for consideration

25. In the case of Sanjeev Coke Manufacturing Company,8
a Constitution Bench of this Court in paragraph 11 held thus:

“11. ………………………………………………
……..We have serious reservations on the
question whether it is open to a court to
answer academic or hypothetical
questions on such considerations,
particularly so when serious
constitutional issues are involved. We
(Judges) are not authorised to make
disembodied pronouncements on
serious and cloudy issues of
constitutional policy without battle
lines being properly drawn. Judicial
pronouncements cannot be
immaculate legal conceptions. It is
but right that no important point of
law should be decided without a
proper lis between parties properly
ranged on either side and a crossing of
the swords. We think it is inexpedient
for the Supreme Court to delve into
problems which do not arise and
express opinion thereon.”
(Emphasis added)

In Asian Resurfacing1, there was no lis before this Court
arising out of the orders of stay granted in different categories
of cases pending before the various High Courts. This Court
was dealing with a case under the
PC Act. Thus, an attempt
was made to delve into an issue which did not arise for
consideration.

Criminal Appeal No.3589 of 2023 etc. Page 32 of 47

VII. Clause (3) Of Article 226 of the Constitution

26. In this case, it is unnecessary for this Court to decide
whether clause (3) of
Article 226 of the Constitution of India is
mandatory or directory. Clause (3) of
Article 226 reads thus:

“226. Power of High Courts to issue
certain writs:

(1) .. .. .. .. .. .. .. .. .. .. .. .. .. ..

(2) .. .. .. .. .. .. .. .. .. .. .. .. .. ..

(3) Where any party against whom an
interim order, whether by way of
injunction or stay or in any other
manner, is made on, or in any
proceedings relating to, a petition under
clause (1), without—

(a) furnishing to such party copies of
such petition and all documents in
support of the plea for such interim
order; and

(b) giving such party an opportunity
of being heard,

makes an application to the High Court
for the vacation of such order and
furnishes a copy of such application to
the party in whose favour such order has
been made or the counsel of such party,
the High Court shall dispose of the
application within a period of two weeks
from the date on which it is received or
from the date on which the copy of such
application is so furnished, whichever is
later, or where the High Court is closed
on the last day of that period, before the
expiry of the next day afterwards on
which the High Court is open; and if the
application is not so disposed of, the

Criminal Appeal No.3589 of 2023 etc. Page 33 of 47
interim order shall, on the expiry of that
period, or, as the case may be, the expiry
of the said next day, stand vacated.”

On its plain reading, clause (3) is applicable only when an
interim relief is granted without furnishing a copy of the writ
petition along with supporting documents to the opposite party
and without hearing the opposite party. Even assuming that
clause (3) is not directory, it provides for an automatic vacation
of interim relief only if the aggrieved party makes an application
for vacating the interim relief and when the application for
vacating stay is not heard within the time specified. Clause (3)
will not apply when an interim order in a writ petition under
Article 226 is passed after the service of a copy of the writ
petition on all concerned parties and after giving them an
opportunity of being heard. It applies only to ex-parte ad
interim orders.

VIII. Directions issued by the constitutional Courts to
decide pending cases in a time-bound manner

27. The net effect of the directions issued in paragraphs 36
and 37 of Asian Resurfacing1 is that the petition in which the
High Court has granted a stay of the proceedings of the trial,
must be decided within a maximum period of six months. If it
is not decided within six months, the interim stay will be
vacated automatically, virtually making the pending case
infructuous. In fact, in paragraph 37, this Court directed that
the challenge to the order of framing charge should be
entertained in a rare case, and when the stay is granted, the

Criminal Appeal No.3589 of 2023 etc. Page 34 of 47
case should be decided by the High Court on a day-to-day basis
so that the stay does not operate for an unduly long period.

28. The Constitution Benches of this Court have considered
the issue of fixing timelines for the disposal of cases in the
cases of Abdul Rehman Antulay3 and P. Ramachandra
Rao4. In the case of Abdul Rehman Antulay3, in paragraph
83, this Court held thus:

“83. But then speedy trial or other
expressions conveying the said concept
— are necessarily relative in nature. One
may ask — speedy means, how speedy?
How long a delay is too long? We do not
think it is possible to lay down any time
schedules for conclusion of criminal
proceedings. The nature of offence, the
number of accused, the number of
witnesses, the workload in the particular
court, means of communication and
several other circumstances have to be
kept in mind. For example, take the very
case in which Ranjan Dwivedi (petitioner
in Writ Petition No. 268 of 1987) is the
accused. 151 witnesses have been
examined by the prosecution over a
period of five years. Examination of some
of the witnesses runs into more than 100
typed pages each. The oral evidence
adduced by the prosecution so far runs
into, we are told, 4000 pages. Even
though, it was proposed to go on with the
case five days of a week and week after
week, it was not possible for various
reasons viz., non-availability of the
counsel, non-availability of accused,
interlocutory proceedings and other
systemic delays. A murder case may be a
simple one involving say a dozen

Criminal Appeal No.3589 of 2023 etc. Page 35 of 47
witnesses which can be concluded in a
week while another case may involve a
large number of witnesses, and may take
several weeks. Some offences by their
very nature e.g., conspiracy cases, cases
of misappropriation, embezzlement,
fraud, forgery, sedition, acquisition of
disproportionate assets by public
servants, cases of corruption against
high public servants and high public
officials take longer time for investigation
and trial. Then again, the workload in
each court, district, region and State
varies. This fact is too well known to
merit illustration at our hands. In many
places, requisite number of courts are
not available. In some places, frequent
strikes by members of the bar interferes
with the work schedules. In short, it is
not possible in the very nature of things
and present-day circumstances to draw
a time-limit beyond which a criminal
proceeding will not be allowed to go.
Even in the USA, the Supreme Court has
refused to draw such a line. Except for
the Patna Full Bench decision under
appeal, no other decision of any High
Court in this country taking such a view
has been brought to our notice. Nor, to
our knowledge, in United Kingdom.
Wherever a complaint of infringement of
right to speedy trial is made the court
has to consider all the circumstances of
the case including those mentioned
above and arrive at a decision whether in
fact the proceedings have been pending
for an unjustifiably long period. In many
cases, the accused may himself have
been responsible for the delay. In such
cases, he cannot be allowed to take
advantage of his own wrong. In some
cases, delays may occur for which

Criminal Appeal No.3589 of 2023 etc. Page 36 of 47
neither the prosecution nor the accused
can be blamed but the system itself.
Such delays too cannot be treated as
unjustifiable — broadly speaking. Of
course, if it is a minor offence — not
being an economic offence — and the
delay is too long, not caused by the
accused, different considerations may
arise. Each case must be left to be
decided on its own facts having regard to
the principles enunciated hereinafter.
For all the above reasons, we are of the
opinion that it is neither advisable nor
feasible to draw or prescribe an outer
time-limit for conclusion of all
criminal proceedings. It is not
necessary to do so for effectuating the
right to speedy trial. We are also not
satisfied that without such an outer
limit, the right becomes illusory.”
(Emphasis added)

In paragraph 27 of the decision in the case of P. Ramachandra
Rao4, this Court observed thus:

“27. Prescribing periods of limitation
at the end of which the trial court
would be obliged to terminate the
proceedings and necessarily acquit or
discharge the accused, and further,
making such directions applicable to
all the cases in the present and for the
future amounts to legislation, which,
in our opinion, cannot be done by
judicial directives and within the
arena of the judicial law-making power
available to constitutional courts,
howsoever liberally we may interpret
Articles 32, 21, 141 and 142 of the
Constitution. The dividing line is fine
but perceptible. Courts can declare the
law, they can interpret the law, they can

Criminal Appeal No.3589 of 2023 etc. Page 37 of 47
remove obvious lacunae and fill the gaps
but they cannot entrench upon in the
field of legislation properly meant for the
legislature. Binding directions can be
issued for enforcing the law and
appropriate directions may issue,
including laying down of time-limits or
chalking out a calendar for proceedings
to follow, to redeem the injustice done or
for taking care of rights violated, in a
given case or set of cases, depending on
facts brought to the notice of the court.
This is permissible for the judiciary to
do. But it may not, like the
legislature, enact a provision akin to
or on the lines of Chapter XXXVI of
the
Code of Criminal Procedure,
1973.”
(Emphasis added)

The principles laid down in the decision will apply even to civil
cases before the trial courts. The same principles will also
apply to a direction issued to the High Courts to decide cases
on a day-to-day basis or within a specific time. Thus, the
directions of the Court that provide for automatic vacation of
the order of stay and the disposal of all cases in which a stay
has been granted on a day-to-day basis virtually amount to
judicial legislation. The jurisdiction of this Court cannot be
exercised to make such a judicial legislation. Only the
legislature can provide that cases of a particular category
should be decided within a specific time. There are many
statutes which incorporate such provisions. However, all such
provisions are usually held to be directory.

Criminal Appeal No.3589 of 2023 etc. Page 38 of 47

29. Ideally, the cases in which the stay of proceedings of the
civil/criminal trials is granted should be disposed of
expeditiously by the High Courts. However, we do not live in
an ideal world. A judicial notice will have to be taken of the
fact that except High Courts of smaller strength having
jurisdiction over smaller States, each High Court is flooded
with petitions under
Article 227 of the Constitution of India for
challenging the interim orders passed in civil and criminal
proceedings, the petitions under
Section 482 of the Cr.PC for
challenging the orders passed in the criminal proceedings and
petitions filed in the exercise of revisional jurisdiction under
the CPC and the Cr. PC. A judicial notice will have to be taken
of the fact that in all the High Courts of larger strength having
jurisdiction over larger States, the daily cause lists of individual
Benches of the cases of the aforesaid categories are of more
than a hundred matters. Therefore, once a case is entertained
by the High Court and the stay is granted, the case has a long
life.

30. There is a huge filing of regular appeals, both civil and
criminal in High Courts. After all, the High Courts deal with
many other important matters, such as criminal appeals
against acquittal and conviction, bail petitions, writ petitions,
and other proceedings that involve the issues of liberty under
Article 21 of the Constitution of India. The High Courts deal
with matrimonial disputes, old appeals against decrees of civil
courts, and appeals against appellate decrees. There are cases
where senior citizens or second or third-generation litigants are

Criminal Appeal No.3589 of 2023 etc. Page 39 of 47
parties. The High Courts cannot be expected to decide, on a
priority basis or a day-to-day basis, only those cases in which
a stay of proceedings has been granted while ignoring several
other categories of cases that may require more priority to be
given.

31. The situation in Trial and district Courts is even worse.
In 2002, in the case of
All India Judges’ Association Ors.
v. Union of India Ors.14, this Court passed an order
directing that the judge-to-population ratio within twenty years
should be 50 per million. Even as of today, we are not able to
reach the ratio of even 25 per million. The directions issued in
the case of
Imtiyaz Ahmed v. State of Uttar Pradesh
Ors.15 have not been complied with by the States by increasing
the Judge strength of the Trial and District Courts. The figures
of pendency of cases in our trial Courts are staggering. There
are different categories of cases which, by their very nature, are
required to be given utmost priority, such as the cases of the
accused in jail and the cases of senior citizens. For example,
there are many legislations like the
Hindu Marriage Act, 1955,
the
Protection of Women from Domestic Violence Act, 2005, the
Negotiable Instruments Act, 1881 etc which prescribe specific
time limits for the disposal of cases. However, due to the huge
filing and pendency, our Courts cannot conclude the trials
within the time provided by the statutes. There is a provision
in the
Code of Criminal Procedure, 1973, in the form of Section

14
(2002)
4 SCC 247
15
(2017) 3 SCC 658

Criminal Appeal No.3589 of 2023 etc. Page 40 of 47
309, which requires criminal cases to be heard on a day-to-day
basis once the recording of evidence commences. The same
Section provides that in case of certain serious offences against
women, the cases must be decided within two months of filing
the charge sheet. Unfortunately, our Criminal Courts are not
in a position to implement the said provision. Apart from
dealing with huge arrears, our Trial Courts face the challenge
of dealing with a large number of cases made time-bound by
our constitutional Courts. Therefore, in the ordinary course,
the constitutional Courts should not exercise the power to
direct the disposal of a case before any District or Trial Court
within a time span. In many cases, while rejecting a bail
petition, a time limit is fixed for disposal of trial on the ground
that the petitioner has undergone incarceration for a long time
without realising that the concerned trial Court may have many
pending cases where the accused are in jail for a longer period.
The same logic will apply to the cases pending before the High
Courts. When we exercise such power of directing High Courts
to decide cases in a time-bound manner, we are not aware of
the exact position of pendency of old cases in the said Courts,
which require priority to be given. Bail petitions remain
pending for a long time. There are appeals against conviction
pending where the appellants have been denied bail.

32. Therefore, constitutional Courts should not normally fix
a time-bound schedule for disposal of cases pending in any
Court. The pattern of pendency of various categories of cases
pending in every Court, including High Courts, is different. The

Criminal Appeal No.3589 of 2023 etc. Page 41 of 47
situation at the grassroots level is better known to the judges
of the concerned Courts. Therefore, the issue of giving out-of-
turn priority to certain cases should be best left to the
concerned Courts. The orders fixing the outer limit for the
disposal of cases should be passed only in exceptional
circumstances to meet extraordinary situations.

33. There is another important reason for adopting the said
approach. Not every litigant can easily afford to file proceedings
in the constitutional Courts. Those litigants who can afford to
approach the constitutional Courts cannot be allowed to take
undue advantage by getting an order directing out-of-turn
disposal of their cases while all other litigants patiently wait in
the queue for their turn to come. The Courts, superior in the
judicial hierarchy, cannot interfere with the day-to-day
functioning of the other Courts by directing that only certain
cases should be decided out of turn within a time frame. In a
sense, no Court of law is inferior to the other. This Court is not
superior to the High Courts in the judicial hierarchy.
Therefore, the Judges of the High Courts should be allowed to
set their priorities on a rational basis. Thus, as far as setting
the outer limit is concerned, it should be best left to the
concerned Courts unless there are very extraordinary
circumstances.

Criminal Appeal No.3589 of 2023 etc. Page 42 of 47

IX. Procedure to be adopted by High Courts while passing
interim order of stay of proceedings and for dealing with
the applications for vacating interim stay

34. At the same time, we cannot ignore that once the High
Court stays a trial, it takes a very long time for the High Court
to decide the main case. To avoid any prejudice to the opposite
parties, while granting ex-parte ad-interim relief without
hearing the affected parties, the High Courts should normally
grant ad-interim relief for a limited duration. After hearing the
contesting parties, the Court may or may not confirm the
earlier ad-interim order. Ad-interim relief, once granted, can be
vacated or affirmed only after application of mind by the
concerned Court. Hence, the Courts must give necessary
priority to the hearing of the prayer for interim relief where ad-
interim relief has been granted. Though the High Court is not
expected to record detailed reasons while dealing with the
prayer for the grant of stay or interim relief, the order must give
sufficient indication of the application of mind to the relevant
factors.

35. An interim order passed after hearing the contesting
parties cannot be vacated by the High Court without giving
sufficient opportunity of being heard to the party whose prayer
for interim relief has been granted. Even if interim relief is
granted after hearing both sides, as observed earlier, the
aggrieved party is not precluded from applying for vacating the
same on the available grounds. In such a case, the High Court
must give necessary priority to the hearing of applications for
vacating the stay, if the main case cannot be immediately taken

Criminal Appeal No.3589 of 2023 etc. Page 43 of 47
up for hearing. Applications for vacating interim reliefs cannot
be kept pending for an inordinately long time. The High Courts
cannot take recourse to the easy option of directing that the
same should be heard along with the main case. The same
principles will apply where ad-interim relief is granted. If an
ad-interim order continues for a long time, the affected party
can always apply for vacating ad-interim relief. The High Court
is expected to take up even such applications on a priority
basis. If an application for vacating ex-parte ad interim relief is
filed on the ground of suppression of facts, the same must be
taken up at the earliest.

D. CONCLUSIONS

36. Hence, with greatest respect to the Bench which decided
the case, we are unable to concur with the directions issued in
paragraphs 36 and 37 of the decision in the case of Asian
Resurfacing1. We hold that there cannot be automatic
vacation of stay granted by the High Court. We do not approve
the direction issued to decide all the cases in which an interim
stay has been granted on a day-to-day basis within a time
frame. We hold that such blanket directions cannot be issued
in the exercise of the jurisdiction under
Article 142 of the
Constitution of India. We answer both the questions framed in
paragraph 5 above in the negative.

37. Subject to what we have held earlier, we summarise our
main conclusions as follows:

a. A direction that all the interim orders of stay of
proceedings passed by every High Court

Criminal Appeal No.3589 of 2023 etc. Page 44 of 47
automatically expire only by reason of lapse of time
cannot be issued in the exercise of the jurisdiction
of this Court under
Article 142 of the Constitution
of India;

b. Important parameters for the exercise of the
jurisdiction under
Article 142 of the Constitution of
India which are relevant for deciding the reference
are as follows:

(i) The jurisdiction can be exercised to do
complete justice between the parties before the
Court. It cannot be exercised to nullify the
benefits derived by a large number of litigants
based on judicial orders validly passed in their
favour who are not parties to the proceedings
before this Court;

(ii) Article 142 does not empower this Court to
ignore the substantive rights of the litigants;

(iii) While exercising the jurisdiction under Article
142 of the Constitution of India, this Court can
always issue procedural directions to the
Courts for streamlining procedural aspects
and ironing out the creases in the procedural
laws to ensure expeditious and timely disposal
of cases. However, while doing so, this Court
cannot affect the substantive rights of those
litigants who are not parties to the case before

Criminal Appeal No.3589 of 2023 etc. Page 45 of 47
it. The right to be heard before an adverse
order is passed is not a matter of procedure
but a substantive right; and

(iv) The power of this Court under Article 142
cannot be exercised to defeat the principles of
natural justice, which are an integral part of
our jurisprudence.

c. Constitutional Courts, in the ordinary course,
should refrain from fixing a time-bound schedule
for the disposal of cases pending before any other
Courts. Constitutional Courts may issue directions
for the time-bound disposal of cases only in
exceptional circumstances. The issue of prioritising
the disposal of cases should be best left to the
decision of the concerned Courts where the cases
are pending; and

d. While dealing with the prayers for the grant of
interim relief, the High Courts should take into
consideration the guidelines incorporated in
paragraphs 34 and 35 above.

38. We clarify that in the cases in which trials have been
concluded as a result of the automatic vacation of stay based
only on the decision in the case of Asian Resurfacing1, the
orders of automatic vacation of stay shall remain valid.

Criminal Appeal No.3589 of 2023 etc. Page 46 of 47

39. The reference is answered accordingly. We direct the
Registry to place the pending petitions before the appropriate
Benches for expeditious disposal.

….…………………………………….CJI.

[Dr Dhananjaya Y. Chandrachud]

.………………..…..……………………J.
[Abhay S. Oka]

.………………..…..……………………J.
[J. B. Pardiwala]

………………..…..……………………J.
[Manoj Misra]

New Delhi;

February 29, 2024.

Criminal Appeal No.3589 of 2023 etc. Page 47 of 47

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 3589 OF 2023

HIGH COURT BAR ASSOCIATION,
ALLAHABAD …APPELLANT(S)

VERSUS

STATE OF U.P. ORS. …RESPONDENT(S)
WITH
S.L.P. (Crl.) Nos. 13284-13289 of 2023
and
Criminal Appeal Diary No. 49052 of 2023

JUDGMENT

PANKAJ MITHAL, J.

1. Concurring with the opinion expressed by my brother

Justice Oka for himself and other puisne Judges, including

the Hon’ble Chief Justice, I would like to add that in Asian

Resurfacing of Road Agency Private Limited Anr. vs.

Central Bureau of Investigation1, this Court while

deciding the issues arising therein went ahead in observing

and directing that where a challenge to an order framing

1
(2018) 16 SCC 299

1
charge is entertained and stay is granted, the matter must

be decided on day to day basis so that the stay may not

continue for an unduly long time. It was further observed

that though no mandatory time limit may be fixed for

deciding such a challenge, the stay order may not normally

exceed two to three months or a maximum of six months

unless it is extended by specific speaking order. Further

directions were issued that in all pending matters before the

High Court or other Courts relating to Prevention of

Corruption Act or all other civil or criminal cases where stay

is operating in pending trials, it will automatically lapse

after six months unless a speaking order is passed

extending the same. The Trial Court may, on expiry of the

above period resume the proceedings without waiting for

any intimation unless express order extending the stay is

produced before the Court.

2. The above directions in Asian Resurfacing issued in

exercise of power of doing complete justice under Article

142 of the Constitution of India are analogous to the

constitutional provision as contained in clause (3) of Article

2
226 of the Constitution of India which has been inserted

with effect from 1.8.1979 vide the Constitution (Forty-fourth

Amendment) Act, 1978. It reads as under:

“(3) Where any party against whom an interim
order, whether by way of injunction or stay or
in any other manner, is made on, or in any
proceedings relating to, a petition under clause
(1), without—

(a) furnishing to such party copies of such
petition and all documents in support of the
plea for such interim order; and

(b) giving such party an opportunity of being
heard,

makes an application to the High Court for the
vacation of such order and furnishes a copy of
such application to the party in whose favour
such order has been made or the counsel of
such party, the High Court shall dispose of the
application within a period of two weeks from
the date on which it is received or from the
date on which the copy of such application is
so furnished, whichever is later, or where the
High Court is closed on the last day of that
period, before the expiry of the next day
afterwards on which the High Court is open;

and if the application is not so disposed of, the
interim order shall, on the expiry of that
period, or, as the case may be, the expiry of
the said next day, stand vacated.”

3. No doubt, the above provision is in respect to petitions filed

before the High Court invoking the extraordinary

3
jurisdiction of the Court and is not meant to be applied

specifically to other proceedings, nonetheless the principles

behind the said provision can always be extended to other

proceedings as has been done in Asian Resurfacing. It is

worth noting that wherever under a statute any such time

limit has been prescribed or is fixed for deciding a

particular nature of proceeding, it has been held to be

directory in nature rather than mandatory. So appears to be

the position with regard to the applicability of Article 226(3)

of the Constitution of India.

4. It is well recognised that no one can be made to suffer on

account of any mistake or fault of the Court which means

that even delay on part of the Court in deciding the

proceedings or any application therein would not be

detrimental to any of the parties to the litigation much less

to the party in whose favour an interim stay order is

passed.

5. It is settled in law that grant of interim stay order ought to

be ordinarily by a speaking order and therefore as a

necessary corollary, a stay order once granted cannot be

4
vacated otherwise than by a speaking order, more so, when

its extension also requires reasons to be recorded.

6. It is noticeable that under Article 226(3) of the Constitution

of India, the automatic vacation of the stay order envisages

making of an application to the High Court for the vacation

of the interim stay order. Therefore, filing of an application

for vacating the stay order is a sine qua non for triggering

the automatic vacation of the stay order under Article

226(3) if such an application is not decided within the time

prescribed of two weeks.

7. In other words, applying the above analogy or principle, the

stay order granted in any proceedings would not

automatically stand vacated on the expiry of a particular

period until and unless an application to that effect has

been filed by the other side and is decided following the

principles of natural justice by a speaking order.

8. Sometimes, in quest of justice we end up doing injustice.

Asian Resurfacing is a clear example of the same. Such a

situation created ought to be avoided in the normal course

or if at all it arises be remedied at the earliest. In doing so,

5
we have to adopt a practical and a more pragmatic

approach rather than a technical one which may create

more problems burdening the courts with superfluous or

useless work. It is well said that useless work drives out the

useful work. Accordingly, it is expedient in the interest of

justice to provide that a reasoned stay order once granted in

any civil or criminal proceedings, if not specified to be time

bound, would remain in operation till the decision of the

main matter or until and unless an application is moved for

its vacation and a speaking order is passed adhering to the

principles of natural justice either extending, modifying,

varying or vacating the same.

9. The reference made to this Court is answered and disposed

of accordingly.

……………………….. J.

(PANKAJ MITHAL)
NEW DELHI;

FEBRUARY 29, 2024.

6

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