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Introduction: In a groundbreaking judgment (High Court Bar Association, Allahabad vs State of UP & Ors, Criminal Appeal No. 3589 of 2023), the Supreme Court, led by Chief Justice Dr DY Chandrachud, challenges the precedent set in Asian Resurfacing of Road Agency Private Limited Vs CBI (2018) 16 SCC 299. The ruling, pronounced on February 29, 2024, signals a significant shift in the treatment of interim stay orders by High Courts.

In a most progressive, pragmatic, pertinent, persuasive and so also a path breaking judgment titled High Court Bar Association, Allahabad vs State of UP & Ors in Criminal Appeal No. 3589 of 2023 and cited in Neutral Citation No.: 2024 INSC 150 that was pronounced by the five-Judge Constitution Bench of the Apex Court headed by Chief Justice of India Dr DY Chandrachud on February 29. 2024 in the exercise of its criminal appellate jurisdiction has very rightly overturned its three-Judge Constitution Bench of Apex Court in Asian Resurfacing of Road Agency Private Limited Vs CBI (2018) 16 SCC 299 judgment which mandated the interim stay orders passed by High Courts staying trials in civil and criminal cases will automatically expire after six months from the date of the order unless they get expressly extended by the High Courts. It must be noted that the CJI-led five Judge Constitution Bench made it absolutely clear that it cannot unnecessarily fiddle with well-thought-out interim orders of High Courts staying criminal and civil proceedings. It must be noted that Justice Abhay S Oka wrote the majority judgment for CJI Dr DY Chandrachud, JB Pardiwala and Manoj Misra while Justice Pankaj Mithal wrote a separate concurring judgment. We need to note here that Ateev Mathur who is partner-head dispute resolution, SNG & Partners (Advocates & Solicitors) was most unequivocal in asserting most forcefully that, “In a country like India where dockets of the courts are always overflowing, it is not always a litigant’s fault for prolonged litigation. It is a welcome judgment by the Supreme Court which is in line with the cardinal principle of law that no one should be condemned unheard.”

As it turned out, the Bench in the majority judgment stipulates in para 5 that, “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?”

Briefly stated, we need to note that in the majority judgment, it is rightly pointed out in para 28 that, “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.”

Do note, the Bench notes in para 29 of the majority judgment that, “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.”

Simply put, the Bench acknowledges in para 30 that, “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 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.”

Be it noted, the Bench notes in para 31 that, “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. (2002) 4 SCC 247, 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. (2017) 3 SCC 658 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 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.”

Quite significantly, the Bench observes in para 32 that, “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 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.”

Most laudably, the Bench expounds in para 33 mandating that, “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.”

Honestly speaking, the Bench concedes in para 34 envisaging that, “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.”

It is worth noting that the Bench notes in para 35 that, “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 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.”

Most significantly, the Bench enunciates in para 36 that, “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 of Road Agency Private Limited Vs CBI (2018) 16 SCC 299. 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.”

All told, we thus see that the Apex Court has very rightly held that there would be no automatic vacation of stay orders of Trial Courts and High Courts.  In his separate and concurring judgment, Justice Mithal said, “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.” He said the court has to adopt a practical and a more pragmatic approach rather than a technical one which may create more problems. No denying it!

Conclusion: The Supreme Court’s ruling signifies a departure from the previous precedent, asserting that there will be no automatic vacation of stay orders by Trial Courts and High Courts. The judgment encourages a nuanced, case-specific approach, recognizing the complexities and challenges faced by the judiciary in addressing the extensive backlog and diverse nature of cases. Justice Mithal’s concurrence underlines the need for a pragmatic approach, ensuring justice prevails without unintentionally causing further issues. The decision is a testament to the Court’s commitment to fairness and a balanced legal system.

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