2024 INSC 150 Criminal Appeal No.3589 of 2023 etc. Page 1 of 47

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

J U D G M E N T

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

I. Object of passing interim orders .............................. 14

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

.................................................................................. 16

Criminal Appeal No.3589 of 2023 etc. Page 2 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 1

st 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 Investigation

1

requires reconsideration by a larger Bench.

I. Directions in Asian Resurfacing

1. In Asian Resurfacing

1, 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 3 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 Gujarat

2 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 4 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 5 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 6 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 4

th 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 7 of 47

stay, a Court subordinate to the High Court cannot pass any

order contrary to the order of stay. By the order dated 15

th

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 Resurfacing

1. This Court,

by the order dated 25th April 2022, did not apply the direction

issued in Asian Resurfacing

1 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 1

st 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 8 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 9 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

Karnataka

4 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 10 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 Limited

5 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 11 of 47

a. As held by the Constitution Bench in the case of

Raza Buland Sugar Co. Ltd. v. Municipal Board,

Rampur

6, 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

& Ors

7, 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 12 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. & Anr

8, 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 Resurfacing

1, 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 13 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 Resurfacing

1; 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 Resurfacing

1. 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 14 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 Resurfacing

1 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 Resurfacing

1. 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 15 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 16 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 17 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 18 of 47

Moreover, the directions issued in Asian Resurfacing

1

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

Resurfacing

1, 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 19 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

Limited

5, 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 20 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 21 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 Resurfacing

1 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 Resurfacing

1, 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 22 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 Resurfacing

1. 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 23 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 24 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 su bstantive

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 25 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 26 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 27 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 canno t, 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 28 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 29 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 30 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 & Ors

13.

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 31 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 32 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 Resurfacing

1, 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 33 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 34 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 Resurfacing

1 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 35 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 Antulay

3 and P. Ramachandra

Rao

4. In the case of Abdul Rehman Antulay

3, 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 36 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 37 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

Rao

4, 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 38 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 39 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 40 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 41 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 42 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 43 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 44 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. CONCLUSION S

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

Resurfacing

1. 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 45 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 46 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 Resurfacing

1, the

orders of automatic vacation of stay shall remain valid.

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

1

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

J U D G M E N T

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 Investigation

1, 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

2

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

3

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

4

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

5

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,

6

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.