Indian Law Research

SUPREME COURT OF INDIA

High Court Bar Association Allahabad v. State of Uttar Pradesh

Decision date:

29 February 2024 · 2024 INSC 150

Whether interim orders passed by High Courts automatically expire after six months.

Read summaryRead court textOriginal PDF · 53 pages
Source and extraction notes

Official source

Draft summary

AI-assisted historical explanation. Independently checked against the source by an AI reviewer. Not reviewed by a lawyer. This historical summary does not certify the current legal position.

In one sentence

A High Court stay does not automatically expire merely because six months have elapsed.

Question decided

Could Asian Resurfacing’s blanket automatic-vacation rule continue?

Key holdings

Outcome

The reference was answered and the contrary automatic-expiry directions were overruled.

Source PDF pages: 45, 46, 47.

Plain-English explanation

An interim stay may remain important even when a court cannot hear the main case promptly. Automatically ending it can harm a litigant who did not cause the delay and has had no opportunity to be heard. The Court therefore rejected the general six-month expiry rule and emphasised reasoned, case-specific decisions. This does not make stays permanent or unchangeable. A court can impose a time limit, reconsider relief, or decide an application to vary or vacate it. Separate constitutional or statutory rules also require their own examination. The judgment concerns the blanket rule imposed in Asian Resurfacing, not every possible form of interim-order expiry. Readers should inspect the wording of their own stay order and the governing procedure before drawing conclusions about its duration. The Court expressly preserved the validity of automatic-vacation orders where the trials had already concluded.

Relevant law

Opinions

Justice Abhay S. Oka authored the principal opinion; Justice Pankaj Mithal concurred separately.

Research notes and limits

Preserve express time limits and special rules such as Article 226(3); do not say that every stay continues indefinitely.

Judgment - source material

All pages of the downloaded court document follow, including separate opinions, annexures and any final joint order. This is machine-extracted original text, not an AI rewrite. Use the PDF to check exact wording.

Jump to a source page

1 · 2 · 3 · 4 · 5 · 6 · 7 · 8 · 9 · 10 · 11 · 12 · 13 · 14 · 15 · 16 · 17 · 18 · 19 · 20 · 21 · 22 · 23 · 24 · 25 · 26 · 27 · 28 · 29 · 30 · 31 · 32 · 33 · 34 · 35 · 36 · 37 · 38 · 39 · 40 · 41 · 42 · 43 · 44 · 45 · 46 · 47 · 48 · 49 · 50 · 51 · 52 · 53

Source PDF page 1

Open this page in the original PDF
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

Source PDF page 2

Open this page in the original PDF
Criminal Appeal No.3589 of 2023 etc.     Page 2 of 47 
 
III. W hether 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. P osition 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. D irections 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 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 
 
1  (2018) 16 SCC 299

Source PDF page 3

Open this page in the original PDF
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 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 case s 
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 l egal 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

Source PDF page 4

Open this page in the original PDF
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 adj ourned, 
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 proceedin gs 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

Source PDF page 5

Open this page in the original PDF
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 t he 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

Source PDF page 6

Open this page in the original PDF
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 paramete rs. 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

Source PDF page 7

Open this page in the original PDF
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 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 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 al ways 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

Source PDF page 8

Open this page in the original PDF
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;

Source PDF page 9

Open this page in the original PDF
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 Bench es 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; 
 
3  (1992) 1 SCC 225 
4  (2002) 4 SCC 578

Source PDF page 10

Open this page in the original PDF
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 appe al 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

Source PDF page 11

Open this page in the original PDF
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, 
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; 
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 
 
6  AIR 1965 SC 895 
7  (2005) 4 SCC 480

Source PDF page 12

Open this page in the original PDF
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 14 2 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 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 
 
8  (1983) 1 SCC 147

Source PDF page 13

Open this page in the original PDF
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 Resurfacing1; and 
d. A successful litigant whose application for stay is 
allowed by the High Court canno t 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 
 
9  (2004) 4 SCC 697

Source PDF page 14

Open this page in the original PDF
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

Source PDF page 15

Open this page in the original PDF
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 Court s, 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.

Source PDF page 16

Open this page in the original PDF
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 requir ing interference with the interim 
order passed earlier . In a given case, a long passage of

Source PDF page 17

Open this page in the original PDF
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.

Source PDF page 18

Open this page in the original PDF
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 o f 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 comp letely 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 
Resurfacing1, 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

Source PDF page 19

Open this page in the original PDF
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 
Limited5, this Court held th at a  provision automatic ally 
vacating a stay was manifestly arbitrary and, therefore, 
violative of Article 14 of the C onstitution 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

Source PDF page 20

Open this page in the original PDF
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

Source PDF page 21

Open this page in the original PDF
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 Resurfa cing1 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 Resurfacing1, 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

Source PDF page 22

Open this page in the original PDF
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 n aught 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, the re 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

Source PDF page 23

Open this page in the original PDF
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 d ifferent 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 i n mind, there would

Source PDF page 24

Open this page in the original PDF
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)

Source PDF page 25

Open this page in the original PDF
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

Source PDF page 26

Open this page in the original PDF
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

Source PDF page 27

Open this page in the original PDF
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.

Source PDF page 28

Open this page in the original PDF
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.

Source PDF page 29

Open this page in the original PDF
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 paragrap h 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

Source PDF page 30

Open this page in the original PDF
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 Court s 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

Source PDF page 31

Open this page in the original PDF
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 legi slations 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.

Source PDF page 32

Open this page in the original PDF
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 impor tant 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, t here 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.

Source PDF page 33

Open this page in the original PDF
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

Source PDF page 34

Open this page in the original PDF
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 paragraph s 36 
and 37 of Asian Resurfacing1 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

Source PDF page 35

Open this page in the original PDF
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 
Rao4. 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

Source PDF page 36

Open this page in the original PDF
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 ver y 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 tho se 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

Source PDF page 37

Open this page in the original PDF
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 
Rao4, 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

Source PDF page 38

Open this page in the original PDF
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 tim e-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.

Source PDF page 39

Open this page in the original PDF
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 categor ies 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

Source PDF page 40

Open this page in the original PDF
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

Source PDF page 41

Open this page in the original PDF
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

Source PDF page 42

Open this page in the original PDF
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.

Source PDF page 43

Open this page in the original PDF
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 reason s 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

Source PDF page 44

Open this page in the original PDF
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. CONCLUSIONS 
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 
Resurfacing1.  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 14 2 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

Source PDF page 45

Open this page in the original PDF
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

Source PDF page 46

Open this page in the original PDF
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 C ourts, 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.

Source PDF page 47

Open this page in the original PDF
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.

Source PDF page 48

Open this page in the original PDF
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

Source PDF page 49

Open this page in the original PDF
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 trial s, 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

Source PDF page 50

Open this page in the original PDF
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

Source PDF page 51

Open this page in the original PDF
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 Art icle 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

Source PDF page 52

Open this page in the original PDF
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,

Source PDF page 53

Open this page in the original PDF
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.