# High Court Bar Association, Allahabad v. State of U.P. & Ors

- **Citation:** 2024 INSC 150
- **Court:** Supreme Court of India
- **Decided:** 2024-02-29
- **Case number:** Criminal Appeal No. 3589 of 2023
- **Bench:** Dr Dhananjaya Y. Chandrachud, Abhay S. Oka, J. B. Pardiwala, Manoj Misra, Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/high-court-bar-association-allahabad-v-state-of-u-p-ors-37666
- **Pages:** 43

## Headnote

What is the object behind passing interim orders; Whether the
High Courts are empowered to vacate or modify interim relief;
Whether an interim order can come to an end automatically only
due to the lapse of time; What is the scope of exercise of powers
u/Art. 142 of the Constitution; Position of the High Courts and its
power of superintendence; Whether the Court should deal with
an issue not arising for consideration; Effect of directions issued
by the Constitutional Courts to decide pending cases in a timebound manner; Whether the Supreme Court, in the exercise of
its jurisdiction u/Art. 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; Whether the Supreme Court, in the exercise of
its jurisdiction u/Art. 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; 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.
Headnotes
Interim Orders - Object of:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) 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
[2024] 2 S.C.R.
947
High Court Bar Association, Allahabad v. State of U.P. & Ors.
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. [Para 13]
Interim Orders - Whether the High Courts are empowered to
vacate or modify interim relief:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) 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 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. [Para 15]
Interim Orders - Whether an interim order can come to an
end automatically o

## Text

_Characters 0–39,982 of 96,625. This is a partial read: ask again with offset=39982 for what follows._

* Author
[2024] 2 S.C.R. 946 : 2024 INSC 150
High Court Bar Association, Allahabad
v.
State of U.P. & Ors.
Criminal Appeal No. 3589 of 2023
29 February 2024
[Dr Dhananjaya Y. Chandrachud, CJI, Abhay S. Oka,*
J. B. Pardiwala, Manoj Misra and Pankaj Mithal,* JJ.]
Issue for Consideration
What is the object behind passing interim orders; Whether the
High Courts are empowered to vacate or modify interim relief;
Whether an interim order can come to an end automatically only
due to the lapse of time; What is the scope of exercise of powers
u/Art. 142 of the Constitution; Position of the High Courts and its
power of superintendence; Whether the Court should deal with
an issue not arising for consideration; Effect of directions issued
by the Constitutional Courts to decide pending cases in a timebound manner; Whether the Supreme Court, in the exercise of
its jurisdiction u/Art. 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; Whether the Supreme Court, in the exercise of
its jurisdiction u/Art. 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; 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.
Headnotes
Interim Orders - Object of:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) 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
[2024] 2 S.C.R.
947
High Court Bar Association, Allahabad v. State of U.P. & Ors.
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. [Para 13]
Interim Orders - Whether the High Courts are empowered to
vacate or modify interim relief:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) 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 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. [Para 15]
Interim Orders - Whether an interim order can come to an
end automatically only due to the lapse of time:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.)
Elementary principles of natural justice, which are well recognised
in jurisprudence, mandate that an order of vacating interim relief
or modification of the interim relief is passed only after hearing all
948
[2024] 2 S.C.R.
Digital Supreme Court Reports
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. [Para 16]
Constitution of India - What is the scope of exercise of powers
u/Art. 142 of the Constitution:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.
Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) Important
parameters for the exercise of the jurisdiction u/Art. 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 u/Art. 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 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 u/Art. 142 cannot be exercised to
defeat the principles of natural justice, which are an integral part
of jurisprudence. [Para 37]
Constitution of India - Position of the High Courts and its
power of superintendence:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.
Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) A High
Court is also a constitutional Court - It is well settled that it is
not judicially subordinate to the Supreme Court - A High Court is
constitutionally independent of the Supreme Court of India - The
power of the High Court u/Art. 227 of the Constitution to have
[2024] 2 S.C.R.
949
High Court Bar Association, Allahabad v. State of U.P. & Ors.
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 u/Art. 142 of the
Constitution of India, the Supreme 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 u/Art. 226 of the Constitution, which is an essential
feature that forms part of the basic structure of the Constitution.
[Paras 23 and 24]
Practice and Procedure - Whether the Court should deal with
an issue not arising for consideration:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) In the
case of Sanjeev Coke Manufacturing Company, a Constitution
Bench of the Supreme Court held that (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 - It is inexpedient for
the Supreme Court to delve into problems which do not arise and
express opinion thereon. [Para 25]
Constitution of India - Art. 226 (3) - Making of an application
for vacating interim relief:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) 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 u/Art. 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
950
[2024] 2 S.C.R.
Digital Supreme Court Reports
orders. [Para 26] Per Pankaj Mithal, J. (concurring) It is noticeable
that u/Art. 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 u/Art. 226(3) if
such an application is not decided within the time prescribed of
two weeks. [Para 6]
Directions by Supreme Court - Effect of directions issued by
the Constitutional Courts to decide pending cases in a timebound manner - The three Judges Bench of the Supreme
Court issued various directions in Asian Resurfacing - The
net effect of the directions issued in paragraphs 36 and 37 of
Asian Resurfacing 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:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) The
Constitution Benches of the Supreme Court have considered the
issue of fixing timelines for the disposal of cases in the cases of
Abdul Rehman Antulay and P. Ramachandra Rao - 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 - 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 - The High Courts cannot be expected to
[2024] 2 S.C.R.
951
High Court Bar Association, Allahabad v. State of U.P. & Ors.
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 - 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. [Paras 28, 29, 30, 32, 33]
Constitution of India - Interim Orders - (i) Whether the
Supreme Court, in the exercise of its jurisdiction u/Art. 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; (ii)
Whether the Supreme Court, in the exercise of its jurisdiction
u/Art. 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:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.
Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) The three
Judges Bench of the Supreme Court decided the case of Asian
Resurfacing and issued directions in paragraphs 36 and 37 - The
direction issued in paragraph 36 was regarding automatic vacation
of stay and direction in paragragh 37 was for conducting day-to-day
hearing within a time frame - The present Bench of the Judges
does not concur with the three judges Bench which decided the
case of Asian Resurfacing and issued directions in paragraphs 36
and 37 - Both directions were issued in the exercise of jurisdiction
u/Art.142 of the Constitution - There cannot be automatic vacation
of stay granted by the High Court - The direction issued (in the
case of Asian Resurfacing) to decide all the cases in which an
interim stay has been granted on a day-to-day basis within a time
frame is also not approved - Blanket directions cannot be issued
in the exercise of the jurisdiction u/Art. 142 of the Constitution
of India - Both the questions framed above are answered in the
negative. [Paras 12, 36]
952
[2024] 2 S.C.R.
Digital Supreme Court Reports
Interim Orders - Stay order cannot be automatically vacated:
Held: Per Pankaj Mithal, J. (concurring): 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 - 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. [Paras 7 and 8]
Practice and Procedure - 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:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.
Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) To avoid
any prejudice to the opposite parties, while granting ex-parte adinterim 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 adinterim 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 - 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. [Paras 34 and 35]
[2024] 2 S.C.R.
953
High Court Bar Association, Allahabad v. State of U.P. & Ors.
Case Law Cited
Asian Resurfacing of Road Agency Private Limited &
Anr. v. Central Bureau of Investigation, [2018] 2 SCR
1045 : (2018) 16 SCC 299 - Reconsidered.
Prem Chand Garg & Anr. v. The Excise Commissioner,
U.P. and Ors., [1963] Suppl. 1 SCR 885 : (1962)
SCC Online SC 37; Supreme Court Bar Association
v. Union of India & Anr., [1998] 2 SCR 795 : (1998) 4
SCC 409; L. Chandra Kumar v. Union of India & Ors.,
[1997] 2 SCR 1186 : (1997) 3 SCC 261; Sanjeev Coke
Manufacturing Company v. M/s. Bharat Coking Coal Ltd.
& Anr, [1983] 1 SCR 1000 : (1983) 1 SCC 147; Abdul
Rehman Antulay & Ors. v. R.S. Nayak & Anr, [1991]
Suppl. 3 SCR 325 : (1992) 1 SCC 225; P. Ramachandra
Rao v. State of Karnataka, [2002] 3 SCR 60 : (2002) 4
SCC 578 - followed.
Deputy Commissioner of Income Tax & Anr. v. Pepsi
Foods Limited, [2021] 4 SCR 1 : (2021) 7 SCC 413;
Tirupati Balaji Developers (P) Ltd. & Ors. v. State of
Bihar & Ors., [2004] Suppl. 1 SCR 494 : (2004) 5 SCC
1 - relied on.
Mohan Lal Magan Lal Thacker v. State of Gujarat,
[1968] 2 SCR 685 : AIR 1968 SC 733; Raza Buland
Sugar Co. Ltd. v. Municipal Board, Rampur, [1965] 1
SCR 970 : AIR 1965 SC 895; Kailash v. Nanhku & Ors,
[2005] 3 SCR 289 : (2005) 4 SCC 480; Deoraj v. State
of Maharashtra & Ors., [2004] 3 SCR 920 : (2004) 4
SCC 697; All India Judges' Association & Ors. v. Union
of India & Ors., [2002] 2 SCR 712 : (2002) 4 SCC 247;
Imtiyaz Ahmed v. State of Uttar Pradesh & Ors., [2017]
1 SCR 305 : (2017) 3 SCC 658 - referred to.
List of Acts
Constitution of India; Constitution (Forty-fourth Amendment) Act,
1978; Prevention of Corruption Act, 1988; Income Tax Act, 1961.
List of Keywords
Interim orders; Vacation or modification of interim relief;
Automatic end of interim relief; Lapse of time; Enforcement
of decrees and orders of Supreme Court and orders as to
954
[2024] 2 S.C.R.
Digital Supreme Court Reports
discovery, etc; Interim orders of the High Courts; Interim orders
of stay of proceedings; Day-to-day basis hearing; Position of
the High Courts; High Court's power of superintendence; Issue
not arising for consideration; Deciding pending cases in a timebound manner; Effect of directions issued by the Constitutional
Courts; Procedure to be adopted by High Courts while passing
interim order; Applications for vacating interim stay.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.3589
of 2023
With
Special Leave Petition (Crl.) Nos. 13284-13289 of 2023 and Criminal
Appeal... Diary No. 49052 of 2023
From the Judgment and Order dated 03.11.2023 of the High Court of
Judicature at Allahabad in A482 No. 28574 of 2019
Appearances for Parties
Rakesh Dwivedi, VK Shukla, Kavin Gulati, S.G. Hasnain, Ravindra
Singh, Dinesh Goswami, Sr. Advs., Shantanu Krishna, Nitin Sharma,
Nikhil Sharma, Eklavya Dwivedi, Shantanu Sagar, Anukul Raj, Ankit
Mishra, Harmeet Singh Ruprah, Abhinav Shrivastava, Manu Yadav,
Himanshu Tyagi, Kumar Ayush, Ronak Chaturavedi, Ram Kaushik,
Syed Mohd Fazal, Archit Mandhyan, Raman Yadav, Prabhat Ranjan Raj,
Sidharth Sarthi, Anil Kumar, Gunjesh Ranjan, Animesh Tripathi, Anant
Prakash, Mrs. Kanupriya Mishra, Amit Kumar Singh, Salil Srivastava,
Shaurya Vardhan Singh, Ankit Dwivedi, Mrs. Mukti Chowdhary,
Gyanendra Kumar, Mrs. Vijaya Singh, Shashwat Anand, Apoorv Mishra,
Shashank Shukla, Ashutosh Thakur, Vaibhav Jain, Rituvendra Singh,
Aniruddh Kumar, Rajrshi Gupta, Imran Ullah, Tarun Agarwal, Ankit
Saran, Namit Srivastava, Rakesh Dubey, Swetashwa Agarwal, Javed
H Khan, Praval Tripathi, Shariq Ahmed, Satwik Misra, Ishit Saharia,
Ashish Singh, Amit Singh, Sanjay Kumar Singh, Piyush Kumar, Paritosh
Kumar Singh, Pai Amit, N. Ashwani Kumar, Ms. Pankhuri Bhardwaj, Ms.
Bhavana Duhoon, Ms. Ranu Purohit, Abhiyudaya Vats, Ms. Vanshika
Dubey, Kushal Dube, Tathagata Dutta, P. Ashok, Advs. for the Appellant.
Tushar Mehta, SG, Ajay Kumar Misra, Adv. Gen/Sr. Adv., Vijay
Hansaria, Sr. Adv., Tanmaya Agarwal, Wrick Chatterjee, Mrs. Aditi
[2024] 2 S.C.R.
955
High Court Bar Association, Allahabad v. State of U.P. & Ors.
Agarwal, Vinayak Mohan, Mahfooz Ahsan Nazki, Polanki Gowtham,
Ms. Rajeswari Mukherjee, K.V. Girish Chowdary, T. Vijaya Bhaskar
Reddy, Ms. Archita Nigam, Meeran Maqbool, Ms. Ruchi Guasain,
Fuzail Ahmad Ayyubi, Ibad Mushtaq, Ms. Akanksha Rai, Ms. Anasuya
Choudhury, Ms. Kavya Jhawar, Gaurav Mehrotra, Talha Abdul
Rahman, Nadeem Murtaza, Akber Ahmed, Abhinit Jaiswal, Harsh
Vardhan Mehrotra, Ms. Maria Fatima, Ms. Alina Masoodi, M. Shaz
Khan, Adnan Yousuf Bhat, Ms. Anasuya Chaudhoury, Advs. for the
Respondents.
Judgment / Order of the Supreme Court
Judgment
Abhay S. Oka, J.
Table of Contents*
A.
FACTUAL BACKGROUND
 ..............................................2
I.
Directions in Asian Resurfacing ................................2
II.
Order of reference to Larger Bench ..........................7
B.
SUBMISSIONS ......................................................................8
C.
ANALYSIS ............................................................................14
I.
Object of passing interim orders .............................14
II.
High Court's power to vacate or modify interim
relief..............................................................................16
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
* Ed Note : Pagination as per original judgment.
956
[2024] 2 S.C.R.
Digital Supreme Court Reports
IX. Procedure to be adopted by High Courts while passing
interim order of stay of proceedings and for dealing
with the applications for vacating interim stay ......43
D.
CONCLUSIONS ...................................................................44
A.
FACTUAL BACKGROUND
By the order dated 1st December 2023, a Bench of three Hon'ble
Judges of this Court expressed a view that a decision of this Court
in the case of Asian Resurfacing of Road Agency Private Limited
& Anr. v. Central Bureau of Investigation1 requires reconsideration
by a larger Bench.
I. Directions in Asian Resurfacing
1.
In Asian Resurfacing1, this Court dealt with the scope of interference
by the High Court with an order of framing charge passed by the
Special Judge under the provisions of the Prevention of Corruption
Act, 1988 (for short, 'the PC Act'). The issue was whether an order
of framing charge was an interlocutory order. The High Court held
that an order of framing charge under the PC Act was interlocutory.
A Bench of two Hon'ble Judges of this Court, by the order dated 9th
September 2013, referred the case to a larger Bench to consider the
issue of whether the case of Mohan Lal Magan Lal Thacker v. State
of Gujarat2 was correctly decided. A Bench of three Hon'ble Judges
held that the order of framing charge was neither an interlocutory nor
a final order. Therefore, it was held that the High Court has jurisdiction
in appropriate cases to consider a challenge to an order of framing
charge. Furthermore, the High Court has jurisdiction to grant a stay
of the trial proceedings. Thereafter, it proceeded to consider in which
cases a stay of the proceedings ought to be granted. The Bench
considered the question in the context of a criminal trial, particularly
under the PC Act. In paragraphs 30 and 31, the Bench observed thus:
"30. It is well accepted that delay in a criminal trial,
particularly in the PC Act cases, has deleterious effect
on the administration of justice in which the society has a
1
[2018] 2 SCR 1045 : (2018) 16 SCC 299
2
[1968] 2 SCR 685 : AIR 1968 SC 733
[2024] 2 S.C.R.
957
High Court Bar Association, Allahabad v. State of U.P. & Ors.
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 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 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
958
[2024] 2 S.C.R.
Digital Supreme Court Reports
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 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
[2024] 2 S.C.R.
959
High Court Bar Association, Allahabad v. State of U.P. & Ors.
appellate/Revisional Courts under the jurisdiction of the
High Courts. The trial courts may, on expiry of the above
period, resume the proceedings without waiting for any
other intimation unless express order extending stay is
produced."
(Emphasis added)
3.
A Miscellaneous Application was filed in the decided case, in light of
the order passed on 4th December 2019 by the Learned Additional
Chief Judicial Magistrate, Pune. When the learned Magistrate was
called upon to proceed with the trial on the ground of automatic
vacation of stay after the expiry of a period of six months, the
learned Magistrate expressed a view that when the jurisdictional
High Court had passed an order of stay, a Court subordinate to the
High Court cannot pass any order contrary to the order of stay. By
the order dated 15th October 2020, this Court held that when the
stay granted by the High Court automatically expires, unless an
extension is granted for good reasons, the Trial Court, on expiry of
a period of six months, must set a date for trial and go ahead with
the same. Later, an attempt was made to seek clarification of the
law laid down in the case of Asian Resurfacing1. This Court, by
the order dated 25th April 2022, did not apply the direction issued
in Asian Resurfacing1 to the facts of the case before it. An attempt
was made to apply the directions to an order of stay of the order
of the learned Single Judge of the High Court passed by a Division
Bench in a Letters Patent Appeal.
II. Order of reference to Larger Bench
4.
In the order of reference dated 1st December 2023, in paragraph 10,
this Court observed thus:
"10. We have reservations in regard to the correctness
of the broad formulations of principle in the above terms.
There can be no gainsaying the fact that a stay of an
indefinite nature results in prolonging civil or criminal
proceedings, as the case may be, unduly. At the same
time, it needs to be factored in that the delay is not always
on account of conduct of the parties involved. The delay
may also be occasioned by the inability of the Court to
take up proceedings expeditiously. The principle which
960
[2024] 2 S.C.R.
Digital Supreme Court Reports
has been laid down in the above decision to the effect
that the stay shall automatically stand vacated (which
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;
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;
[2024] 2 S.C.R.
961
High Court Bar Association, Allahabad v. State of U.P. & Ors.
e.
If an interim order is to be passed, it should be initially for a
short period so that there is an effective opportunity for the
respondent to contest the same;
f.
Two Constitution Benches in the cases of Abdul Rehman
Antulay & Ors. v. R.S. Nayak & Anr.3 and P. Ramachandra
Rao v. State of Karnataka4 held that it is not permissible for
this Court to fix the time limit for completion of a trial;
g.
No such directions could have been issued in the exercise of
the jurisdiction of this Court under Article 142 of the Constitution
of India;
h.
Even under Article 226 (3) of the Constitution, an interim order
cannot be automatically vacated unless a specific application
is made for vacating the interim order;
i.
A provision of automatic vacation of the Appellate Tribunal's stay
order was incorporated in Section 254 (2A) of the Income Tax
Act, 1961 (for short, 'the IT Act'). It provided that if an appeal
preferred before the Appellate Tribunal was not disposed of
within 365 days, the stay shall stand vacated even if the delay
in disposing of the appeal is not attributable to the assessee.
This court struck down the provision in the case of Deputy
Commissioner of Income Tax & Anr. v. Pepsi Foods Limited5
on the ground that it was manifestly arbitrary; and
j.
The automatic vacation of interim relief is unjust, unfair and
unreasonable.
7.
Shri Tushar Mehta, the learned Solicitor General appearing for the
State of Uttar Pradesh, supported the submissions of Shri Dwivedi.
In addition, he submitted that:
a.
As held by the Constitution Bench in the case of Raza Buland
Sugar Co. Ltd. v. Municipal Board, Rampur6, laws of procedure
are grounded in principles of natural justice, which require that
no decision can be reached behind the back of a person and
in his absence;
3
[1991] Suppl. 3 SCR 325 : (1992) 1 SCC 225
4
[2002] 3 SCR 60 : (2002) 4 SCC 578
5
[2021] 4 SCR 1 : (2021) 7 SCC 413
6
[1965] 1 SCR 970 : AIR 1965 SC 895
962
[2024] 2 S.C.R.
Digital Supreme Court Reports
b.
If the condition imposed by a provision of law to do a certain
thing within a time frame is upon the institution and the
consequences of that institution failing to comply with the
condition are to fall upon someone who has no control over
the institution, the provision of law will have to be construed
as directory;
c.
An interim relief order is always granted after considering the
three factors: prima facie case, the balance of convenience
and irreparable injury to the aggrieved party. Once a finding
is recorded regarding the entitlement of the appellant/
applicant to get the order of stay, the order does not become
automatically bad on the ground that it has lived for six
months; and
d.
In the decision of this Court in Kailash v. Nanhku & Ors7, it
has been held that the process of justice may be speeded up
and hurried, but fairness, which is the basic element of justice,
cannot be permitted to be buried. The discretion conferred upon
the High Court cannot be taken away by exercising power under
Article 142 of the Constitution of India.
8.
Shri Gaurav Mehrotra, the learned counsel appearing for the applicant
in I.A. no.252872 of 2023 in Criminal Appeal no.3589 of 2023, in
addition to the aforesaid submissions, relied upon a decision of the
Constitution Bench in the case of Sanjeev Coke Manufacturing
Company v. M/s. Bharat Coking Coal Ltd. & Anr8, to contend that
the Court should not decide any important question without there
being a proper lis.
9.
Shri Vijay Hansaria, the learned senior counsel appearing for the
Gauhati High Court Bar Association, made the following submissions:
a.
As regards the interpretation of clause (3) of Article 226 of the
Constitution of India, various High Courts have taken different
views on the issue of whether the provision for automatic
vacation of stay is mandatory or directory. He urged that the
provision will have to be held as a directory;
7
[2005] 3 SCR 289 : (2005) 4 SCC 480
8
[1983] 1 SCR 1000 : (1983) 1 SCC 147
[2024] 2 S.C.R.
963
High Court Bar Association, Allahabad v. State of U.P. & Ors.
b.
In Asian Resurfacing1, the Court was dealing with a petition
filed in the High Court arising from a prosecution under the PC
Act. The cases of other categories were not the subject matter
of challenge before this Court;
c.
The power under Article 142 of the Constitution of India can
be exercised for doing complete justice in any case or matter
pending before it. The issue of the duration of the order of stay
did not arise in the case of Asian Resurfacing1; and
d.
A successful litigant whose application for stay is allowed by
the High Court cannot be prejudiced only on the ground that
the High Court does not hear the main case within six months
for reasons beyond the control of the said litigant.
10. Shri Amit Pai, the learned counsel appearing for the appellant in one
of the appeals, while adopting the submissions, relied upon a decision
of this Court in the case of Deoraj v. State of Maharashtra & Ors.9
and contended that recourse is taken to the order of grant of interim
relief as the conclusion of hearing on merits is likely to take some
time. He submitted that the said object has not been considered in
Asian Resurfacing1. He urged that passing an interim order of stay
is a judicial act. Therefore, such an order must be vacated only by
a judicial act.
11. Prof (Dr) Pankaj K Phadnis, representing the intervenor - Abhinav
Bharat Congress, has filed written submissions. He 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.