# Smt. Nisha & Ors v. State of U.P. & Anr

- **Citation:** (2022) 2 ILRA 237
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-06
- **Case number:** Application U/S 482 No. 43568 of 2012
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nisha-ors-v-state-of-u-p-anr-47514
- **Pages:** 5

## Headnote

A.G.A., Sri Jitendra Kumar Shishodia

A. Extension of Stay Orders - In Asian
Resurfacing of Road Agency Private Limited &
ors. v CBI (2018)16 SCC 299 it has been held
that 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 6 months from the date of decision
unless in an exceptional case by speaking order
such stay is extended and in cases where stay
is granted in future the same will end on expiry
of 6 months from the date of such order unless
similar extension is granted by a speaking
order. Pursuant to the direction given by Apex
Court Hon'ble High Court, Allahabad has issued
directions to all the judicial officers subordinate
to the High Court vide CL No. 12/Admin 'G'-2
dated 26.04.2018 for compliance of the
directions given by Apex Court in the case of
Asian Resurfacing.

B. In Fazalullah Khan v M/s M. Akbar
Contractor(D) by LR's 2019(8) ADJ 615 it has
been held that interim orders granted by the
Apex Court are not vacated and continued
beyond a period of 6 months by reason of
pendency of appeal, it cannot be said that the
interim would automatically stand vacated.
Thus, the applicants cannot derive any benefit
of the said judgment.

Application dismissed. (E-12)

List of Cases cited:-

## Text

2 All. Smt. Nisha & Ors. Vs. State of U.P. & Anr.
237
summoned the accused. The Court has to
record reasons while summoning the
accused in complaint case. The Court
cannot
passed
cryptic
order
without
discussing
the
evidences
and
other
circumstances. I am setting aside the order
dated 02.07.2008 and remanding the matter
to the concerned Court for passing afresh
order.

13. It is open for learned counsel for
the applicant to raise all the pleas available
to him.

14. Learned counsel for the applicant
will file certified copy of this order within a
period
of
twenty
days'
from
today
thereafter, the concerned Court will take
decision within a period of two months
after affording opportunity of hearing to the
parties concerned.

15. Needless to say that Court
concerned shall pass afresh order in
accordance with law.

16. The application is accordingly,
disposed of.
----------

(2022)02ILR A237
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.12.2021

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Application U/S 482 No. 43568 of 2012

Smt. Nisha & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Anurag Pathak, Sri Harshit Pathak
Counsel for the Opposite Parties:
A.G.A., Sri Jitendra Kumar Shishodia

A. Extension of Stay Orders - In Asian
Resurfacing of Road Agency Private Limited &
ors. v CBI (2018)16 SCC 299 it has been held
that 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 6 months from the date of decision
unless in an exceptional case by speaking order
such stay is extended and in cases where stay
is granted in future the same will end on expiry
of 6 months from the date of such order unless
similar extension is granted by a speaking
order. Pursuant to the direction given by Apex
Court Hon'ble High Court, Allahabad has issued
directions to all the judicial officers subordinate
to the High Court vide CL No. 12/Admin 'G'-2
dated 26.04.2018 for compliance of the
directions given by Apex Court in the case of
Asian Resurfacing.

B. In Fazalullah Khan v M/s M. Akbar
Contractor(D) by LR's 2019(8) ADJ 615 it has
been held that interim orders granted by the
Apex Court are not vacated and continued
beyond a period of 6 months by reason of
pendency of appeal, it cannot be said that the
interim would automatically stand vacated.
Thus, the applicants cannot derive any benefit
of the said judgment.

Application dismissed. (E-12)

List of Cases cited:-
1. Asian Resurfacing of Road Agency Pvt. Ltd. &
ors. Vs CBI (2018)16 SCC 299

2.
Fazalullah
Khan
Vs
M/s
M.
Akbar
Contractor(D) by LR's 2019(8) ADJ 615

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1- Heard learned counsel for the
parties and perused the record.

2- The instant application dated
27.11.2021 has been moved seeking
238 INDIAN LAW REPORTS ALLAHABAD SERIES
extension of interim stay order dated
18.12.2012, which was not extended
further after 12.4.2019.

3- It is submitted by the learned
counsel for the applicants that vide order
dated 18.12.2012 further proceedings of
Complaint Case No. 77 of 2012, under
Sections 323, 504, 506, 403 I.P.C., pending
before
the
Civil
Judge
(J.D.)/J.M.,
Deoband, Saharanpur was stayed till the
next date of listing with a direction to list
the case after eight weeks before the
appropriate Bench, but the trial court under
the garb of judgment of the Apex Court in
the case of Asian Resurfacing of Road
Agency Private Ltd. and another Vs.
Central Bureau of Investigation, (2018)
16 SCC 299 has proceeded in the matter.
Much emphasis has been given by
contending that the aforesaid judgment of
the Apex Court in the case of Asian
Resurfacing of Road Agency Pvt. Ltd. &
another (supra) has been over ruled by the
subsequent judgment of the Apex Court in
the case of Fazalullah Khan Vs. M.
Akbar Contractor (D) By LRS. and
Others, 2019 (8) ADJ 615 (SC), therefore,
the interim stay order dated 18.12.2012 is
liable to be extended.

4- Per contra, learned A.G.A. opposed
the prayer of the applicants by contending
that judgment of the Apex Court in the case
of Asian Resurfacing of Road Agency Pvt.
Ltd. & another (supra) has not been over
ruled till date. He further submits that the
submission advanced on behalf of the
applicants is not liable to be accepted as the
same is wholly misconceived, therefore, the
relief as sought by the applicants is liable to
the rejected.

5- Having heard the arguments of the
learned counsel for the parties, I find that
the case of Asian Resurfacing of Road
Agency Pvt. Ltd. & another (supra) has
been decided by three Judges Bench of the
Apex Court. The relevant paragraph nos.
35, 36 and 37 of the said judgment are
reproduced herein below:

"35. In view of 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 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
finalized. 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.

36. 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 Section 397 or 482 Cr.P.C. or Article
2 All. Smt. Nisha & Ors. Vs. State of U.P. & Anr.
239
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 re-appreciate the
matter. Even where such challenge is
entertained and stay is granted, the matter
must be decided on day-to-day basis so
that 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 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 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 above period,
resume the proceedings without waiting
for any other intimation unless express
order extending stay is produced.

37. The High Courts may also
issue instructions to this effect and monitor
the same so that civil or criminal
proceedings do not remain pending for
unduly period at the trial stage."

6- Pursuant to directions given by the
Apex
Court
in
the
case
of
Asian
Resurfacing of Road Agency Pvt. Ltd. &
another (supra), the Registrar General of
the High Court of Judicature at Allahabad
has issued directions to all the judicial
officer subordinate to High Court of
Judicature at Allahabad vide C.L. No.
12/Admin. 'G-II' dated 26.04.2018 for
compliance of the directions given by the
Apex
Court
in
the
case
of
Asian
Resurfacing of Road Agency Pvt. Ltd. &
another (supra).

7- Thereafter on 22.07.2019, the two
Judges Bench of the Apex Court in the case
of Fazalullah Khan (supra) considering the
judgment of three Judges Bench of the
Apex
Court
in
the
case
of
Asian
Resurfacing of Road Agency Pvt. Ltd. &
another
(supra)
has
made
following
observation :

"We are constrained to pen down
a more detailed order as the judgment of
this Court in Asian Resurfacing of Road
Agency's case (supra) is sought to be relied
upon by difference courts even in respect of
interim orders granted by this Court where
the period of 6 months has expired. Such a
course of action is not permissible and if
the interim order granted by this Court is
not vacated and continues beyond a period
of 6 months by reason of pendency of the
appeal, it cannot be said that the interim
order would automatically stand vacated."

8- From the perusal of the aforesaid
observation, it is apparent that the judgment
of Asian Resurfacing of Road Agency Pvt.
Ltd. & another (supra) has not been over
ruled by the Apex Court, but it has been
clarified that in case interim orders granted
by the Apex Court where the period of six
months has expired and the interim order
240 INDIAN LAW REPORTS ALLAHABAD SERIES
granted by the Apex Court is not vacated
and continues beyond the period of six
months by reason of pendency of appeal, it
cannot be said that interim order would
automatically stand vacated. As such,
interim orders granted by the Apex Court
have been excluded and have been placed
in a separate category other than High
Court and trial court.

9- Here it is also relevant to mention
that the Apex Court while deciding the
Miscellaneous Application No. 1577 of
2020 filed in the case of Asian Resurfacing
of Road Agency Pvt. Ltd. & another (supra)
has passed an order dated 15.10.2020,
which is quoted herein below :

"Having
heard
Mr.
Dilip
Annasaheb Taur, learned counsel for the
applicant and Mr. S.V. Raju, learned ASG
for the respondent, we are constrained to
point out that in our directions contained
in the judgment delivered in Criminal
Appeal Nos. 1375-1376 of 2013 [Asian
Resurfacing of Road Agency Pvt. Ltd. &
Anr. vs. Central Bureau of Investigation]
and, in particular, para 35, it is stated
thus:

"35. ... .... 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 finalized.
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."

Learned
Additional
Chief
Judicial Magistrate, Pune, by his order
dated 04.12.2019, has instead of following
our judgment in letter as well as spirit,
stated that the Complainant should move
an application before the High Court to
resume the trial. The Magistrate goes on to
say: "The lower Court cannot pass any
order which has been stayed by the
Hon'ble High Court, Bombay with due
respect of ratio of the judgment in Asian
Resurfacing of Road Agency Pvt. Ltd. &
Anr. (supra)." We must remind the
Magistrates all over the country that in
our pyramidical structure under the
Constitution of India, the Supreme Court
is at the Apex, and the High Courts,
though not subordinate administratively,
are certainly subordinate judicially. This
kind of orders fly in the face of para 35 of
our
judgment.
We
expect
that
the
Magistrates all over the country will
follow our order in letter and spirit.
Whatever stay has been granted by any
court
including
the
High
Court
automatically expires within a period of
six months, and unless extension is
granted for good reason, as per our
judgment, within the next six months, the
trial Court is, on the expiry of the first
period of six months, to set a date for the
trial and go ahead with the same.

With this observation, the order
dated 04.12.2019 is set aside with a
direction to the learned Additional Chief
Judicial Magistrate, Pune to set down the
case for hearing immediately.

Miscellaneous
Application
is
disposed of accordingly."

10- In view of the aforesaid
discussion, it is apparently clear that there
is strict direction of the Apex Court that the
subordinate courts all over the country shall
follow the directions given in the case of
Asian Resurfacing of Road Agency Pvt. Ltd.
& another (supra) in letter and spirit.
2 All. Dheer Singh(Home Guard) Vs. State of U.P. & Ors.
241

11- As such, the submission of
learned counsel for the applicants, as
mentioned above, is not liable to be
accepted.

12- The instant application lacks
merit and is accordingly rejected.

13- Office is directed to send a copy
of this order to the concerned court below.
----------
(2022)02ILR A241
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2021

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ A No. 8869 of 2021
with
Writ A No. 8512 of 2021
with
Writ A No. 8867 of 2021
with
Writ A No. 8870 of 2021

Dheer Singh(Home Guard) ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Niraj Kumar Tripathi, Sri Shailesh Verma

Counsel for the Respondents:
C.S.C.

A. U.P. Home Guards Act, 1963- Section 7
- Power of appointment and selection of Home
Guards vests with the St. which is exercised
through it's officers. The person selected and
enrolled is subordinate to a public servant and
he receives the salary/wages on a monthly
basis, there exists the relationship of master
and servant and he performs duties in
connection with the affairs of the St..

B. Any personnel enrolled u/S 7 of the Home
Guards Act will not be a holder of civil post and
will not enjoy any protection available u/A 311
of Constitution of India but as soon as he is
called to perform any duty u/S 8 of the Act he
will become holder of a civil post and enjoy the
protection of Article 311 of Constitution of
India.

C. The termination order on the ground that
the petitioners formed an association is not
sustainable as Article 19(1)© confers a
Fundamental right on every citizen to form a
Union/Association or Cooperative Society which
right can only be circumscribed by framing a
law under article 19(2) of Constitution of India
which would have to be a law as provided
under Article 13(3) of Constitution of India.

Held: Petition allowed. (E-12)

List of Cases cited: -

1. St. of U.P. & ors. Vs Dashrath Singh Parihar &
anr. 2007 All.C.J. 1165

2. Chhaya Tripathi Vs St. of U.P. & ors. Writ A
No. 15793/2018

3. Omvir Singh & anr. Vs St. of U.P. & ors. Writ
A No. 16195 of 2005

4. Rajvir Singh Vs St. of U.P. & ors.
LAW(ALL)2018-10-61

5. Harveer Singh Vs St. of U.P. & anr. Writ A
No. 60671 of 2016

6. Ram Avadh Yadav Vs St. of U.P. & ors. Writ
A No. 145 of 2020

7. Riasat Ali Vs St. of U.P. & ors. 2003(4) AWC
3046

8. Roop Chand Vs St. of U.P. & ors. Special
Appeal(Defective) No. 904 of 2010

9. Arun Kumar Shukla Vs St. of U.P. & ors.
2018(2) ADJ 353

10. Vibhuti Narayan Singh Vs St. & ors. 1986
UPLBEC 1130

11. Abdul Hamid & anr. Vs St. of U.P. & anr.
Writ Petition No. 9028 of 1990