A three judge bench of the Supreme Court today while expressing reservation, has referred its 2018 judgment in Asian Resurfacing of Road Agency Pvt. Ltd. and Anr v. CBI to a larger bench (5-judge-bench), as the judgment was pronounced by a coordinate bench of three judges. The bench was of the opinion that the principle enunciated in the judgment requiring automatic vacation of stay without the application of judicial mind was a ‘serious miscarriage of justice’.

The appeal was filed by the High Court Bar Association Allahabad on Certificate For Appeal granted by the Allahabad High Court.

As per the judgment, in all pending matters before the High Courts or other courts relating to The Prevention of Corruption Act, 1988 (PC Act) or civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse within 6 months from that day, unless it is extended by a speaking order.

A bench of Chief Justice of India D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra thus observed, “We have reservations with regard to the correctness of the broad formulations or principles in the above terms. While there can be no gainsaying the fact that stays of an indefinite nature result in prolonging the civil or criminal proceedings as the case may be, unduly, the same time it needs to be factored in that the delay is not always on account of the conduct of one of the parties involved. The delay may also be occasioned by the inability of the court to take up the proceedings expeditiously. Hence, we are of the view that the dictum or the principle which has been laid down in the above decision with the effect that the stay shall automatically stand vacated (which would mean an automatic vacation of stay without the application of judicial mind to whether the stay should or should not extended further) is liable to result in a serious miscarriage of justice…”.

While issuing notice to the State of Uttar Pradesh, the bench also directed the Attorney General for India R. Venkataramini or Solicitor General Tushar Mehta to assist the court in the matter.

“In Asian Resurfacing of Road Agency Pvt. Ltd. and Anr v. CBI In the course of the judgment, the bench observed that though the question referred to the issue whether an order framing charge is interlocutory order, this court was further considering the approach to be adopted by the High Court in dealing with a challenge to an order framing charge. While answering the question, this court had the High Court has jurisdiction in an appropriate case to consider a a challenge against an order framing a charge and to grant a stay. However, the court then proceeded to analyse the manner in which an order of stay should be granted…This Court observed that if a stay is granted it should not normally be unconditional or of an indefinite duration and an appropriate condition may be imposed so that the party in whose favour stay is granted is accountable if the court finally finds no merit in the matter…”, the bench further noted in the order.

In the arguments today, Senior Advocate Rakesh Dwivedi appearing for the Association contended that the impugned judgment was creating difficulties, and that the judgment was in fact on another issue while its observations on automatic stay vacation was an obiter.

“…It is an obiter actually. Because that did not involve this issue. But the court thought that in the interest of speedy trial under Article 21 (Constitution of India), Article 226 jurisdiction could be curtailed…”, Dwivedi said.

A bench of Chief Justice Pritinker Diwaker and Justices Ashwani Kumar Mishra and Ajay Bhanot had formulated 10 substantial questions of law as to the interpretation of the Constitution arise for consideration.

“The framers of the Constitution by inserting Article 132 clearly envisioned free exchange and frank speech in the discourse between Constitutional Courts. It is a core value of the Constitution which ensures that evolution of law is responsive to the needs of justice and in conformity with Basic Structure of the 217 Constitution. If the Basic Structure of the Constitution is to remain inviolable, the Core Values of the Constitution have to be indestructible”, it had noted in the 221 page judgment.

Cause Title: High Court Bar Association Allahabad v. The State Of Uttar Pradesh And Ors.