Interlocutory Orders, Stay of Trial Proceedings and Inherent Powers: A discussion on ‘Asian Resurfacing of Road Agency (P)  Ltd. v. CBI’

The Supreme Court in Asian Resurfacing of Road Agency (P)  Ltd. v. CBI[1] pronounced a landmark judgment in a batch of important matters where it resolved a long-drawn controversy pertaining to Section 19(3)(c) of the Prevention of Corruption Act,1988[2] (also referred to as ‘the PC Act’). Although the judgment was rendered in the context of the PC Act, 1988, the Supreme Court issued directions for all civil and criminal matters in an attempt to reduce delay in disposing of the matters. The present article attempts to discuss various issues leading to the aforesaid judgment and additionally discusses few friction areas which are seemingly unresolved in the judgment. The article would broadly focus on the following issues:

  1. Concept of intermediate/interlocutory/final orders;
  2. Power to grant of stay of the trial proceedings in respect of the PC Act;
  3. Exercise of inherent/constitutional powers when there is an express bar in the statute i.e. Section 482 of the Code of Criminal Procedure, 1973 and Articles 226 and 227 of the Constitution. 

Litigations before the Delhi High Court

In order to fully understand why the aforesaid issues were challenged before the Supreme Court, it is important to have an overview of the litigations before the Delhi High Court. Conflicting views in Dharambir Khattar[3] and R.C. Sabharwal[4] constrained the Single Judge in Asian Resurfacing[5] (Delhi High Court) to refer the matter to the  Chief Justice and which culminated in Anur Kumar Jain[6].

In Dharambir Khattar v. CBI[7], criminal revision petitions were filed before the Delhi High Court against an order of charge. The principal question that arose before the Court was whether an order on charge or an order framing charges in terms of Section 19(3)(c) of the Prevention of Corruption Act, 1988 is an interlocutory order. The Court perused Section 11 of the Special Courts Act (SCA), 1979, Section 34 of the Prevention of Terrorism Act, 2002 (POTA) and Section 19(3) of the Prevention of Corruption Act, 1988 and the non-obstante clause therein and did not agree that these are not pari materia. The Court also observed that the expression ‘interlocutory order’ is nowhere defined in these statutes and also in the Code of Criminal Procedure. That after referring to the judgments of the Supreme Court in V.C. Shukla v. State through CBI[8], Satya Narayan Sharma v. State of Rajasthan[9] and State v. Navjot Sandhu[10] concluded that the order framing charges is an interlocutory order and therefore no revision petition would be maintainable against it. The Court also did not agree that the powers of the Court under Articles 226 and 227 of the Constitution and Section 482 of the Code could be invoked in appropriate casses to challenge an order of revision.

That subsequently in R.C. Sabharwal v. CBI[11], similar questions again arose before the Delhi High Court and the Single Judge agreed with the view taken by the Single Judge in Dharambir Khattar[12] as regards to the interpretation of the expression ‘interlocutory order’ used in Section 19(3)(c) of the PCA, 1988 and therefore held the revisional powers to be not maintainable. The Court further agreed with Dharambir Khattar[13] that the inherent powers under Section 482 of the Code cannot be used to interfere with an order framing charge or directing the framing of charge in a case attracting the provisions of Prevention of Corruption Act but in the context of powers under Articles 226 and 227 (and also Article 136) of the Constitution, the Court held that the same could be exercised, but sparingly, cautiously and in exceptional circumstances, to challenge an interlocutory order, including an order on charge irrespective of an embargo in Section 19(3)(c) of the PC Act. The Court emphasised self-restriction and stated that the solution does not lie in denying the constitutional remedy. Therefore R.C. Sabharwal[14] marked a shift in holding the constitutional powers under Articles 226/227/136 to be maintainable against an interlocutory order.

In a later case of Asian Resurfacing of Road Agency v. CBI[15], petitions were filed before the Delhi High Court against the order framing charge. The Court noticed the conflict between Dharambir Khattar[16] and R.C Sabharwal[17] but was of the opinion that if petitions under Articles 226/227 are allowed against an order of charge, it would amount to doing indirectly the same thing which cannot be done directly. The Court observed that

“25. …once this Court holds that a petition under Article 227 would lie, the result would be as evident from the above petitions that every order on charge which earlier used to be assailed by way of revision would be assailed in a camouflaged manner under Article 227 of the Constitution and the result would be same that proceedings before the trial court shall not proceed…”

The Court considered it fit to refer the controversy to the Chief Justice for referring it to a larger Bench.

When the matter was taken up by the Division Bench of the Delhi High Court[18], the following questions were framed:

  1. Whether an order framing charge under the 1988 Act would be treated as an interlocutory order thereby barring the exercise of revisional power of this Court?
  2. Whether the language employed in Section 19 of the 1988 Act which bars the revision would also bar the exercise of power under Section 482 of the Code of Criminal Procedure for all purposes?
  3. Whether the order framing charge can be assailed under Article 227 of the Constitution of India?

The Court answered[19] the reference in the following manner:

  1. An order framing charge under the Prevention of Corruption Act, 1988 is an interlocutory order.
  2. As Section 19(3)(c) clearly bars revision against an interlocutory order and framing of charge being an interlocutory order, a revision will not be maintainable.
  3. A petition under Section 482 of the Code of Criminal Procedure and a writ petition preferred under Article 227 of the Constitution of India are maintainable.
  4. Even if a petition under Section 482 of the Code of Criminal Procedure or a writ petition under Article 227 of the Constitution of India is entertained by the High Court, under no circumstances an order of stay should be passed regard being had to the prohibition contained in Section 19(3)(c) of the 1988 Act.
  5. The exercise of power either under Section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution of India should be exercised sparingly and in exceptional circumstances.
  6. It is settled law that jurisdiction under Section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution of India cannot be exercised as a “cloak of an appeal in disguise” or to re-appreciate evidence. The aforesaid proceedings should be used sparingly with great care, caution, circumspection and only to prevent grave miscarriage of justice.

The matter and the questions involved were then challenged before the Supreme Court. It is important to highlight that vide order dated 09.09.2013[20] the two- Judges of the Supreme Court noticed difference of opinion among the different Benches of the Supreme Court and the High Courts on the question of law involved and referred the matter to the  Chief Justice of India for constituting a larger Bench.

 Review of cases leading to Asian Resurfacing of Road Agency (P) Ltd v. CBI[21] (Supreme Court)

Before we enter into a discussion into the various issues involved and other important cases, it is important to highlight that in the Criminal Procedure Codes prior to the 1973 Code, the word ‘interlocutory order’ was not used at all. Section 397(2) of the Code of Criminal Procedure, 1973 (also referred to as ‘the Code’), which barred revision against an interlocutory order, was incorporated with a view to expedite trial and cut out the delays.

In Mohan Lal Magan Lal Thacker v. State of Gujarat[22], while discussing interlocutory orders the Court observed that there could be certain orders which are interlocutory in character but are held to be final if they finally disposed of the proceedings though the main controversy between the parties remain undisposed of. The finality of an order it said is not to be judged by correlating that order with the controversy in the complaint. The fact that that the controversy still remained alive is irrelevant.

The  Supreme Court in Amar Nath  v. State of Haryana [23]  further explored the concept of interlocutory orders to introduce ‘orders which are matters of moment’ and which substantially affect the rights of an accused or which affect or adjudicate the rights of an accused or a particular aspect of the trial. The Court identified these orders to be not interlocutory so as to be outside the purview of revisional jurisdiction of the Court. In the said case the summoning order of the Magistrate was held to be not interlocutory. In respect of powers of the Court under Section 482 of the Code, the Court also held that if there is an express provision barring a particular remedy, the Court cannot exercise inherent powers. Therefore powers under Section 482 of the Code were held to be not available to defeat the bar contained in Section 397(2) of the Code. In Amar Nath[24] a subtle position emerged that there are certain orders which are neither final nor interlocutory. These were for now termed as ‘ matters of moment’.

In Madhu Limaye v.  State of Maharashtra[25] the Supreme court modified the view of the Court in Amar Nath[26] in respect of exercise of inherent powers to hold that powers under Section 482 of the Code could be used in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice. But it also cautioned such a use or exercise to be rare and sparing. The Court further built on Amar Nath[27] and highlighted that there could be certain orders which are neither final nor interlocutory – pure and simple and therefore would fall between the two. Bar under Section 397(2) of the Code it said is not meant to be attracted to such ‘intermediate orders’. It will be interesting to see that Madhu Limaye[28] although agreeing with Amar Nath[29] on orders which are ‘matters of moment’, termed them as ‘intermediate’. The charges framing order in the said case was held to be neither final nor interlocutory.

In V.C. Shukla v. State through CBI[30] the Supreme Court had to interpret the concept of interlocutory order in reference to Section 11(1)[31] of the Special Courts Act, 1979. The appeal in this case was directed against a charge framing order passed by a Special Judge under the SCA. The Court referred to Amar Nath[32] and Madhu Limaye[33] and the non-obstante clause in Section 11 of SCA and held that the judgments in the said cases were given in the context of the Code, particularly Section 397(2) and were correctly decided and would have no application to the interpretation of Section 11(1) of SCA which expressly excludes the Code. The Court considered the scheme of SCA as a special case which had the objective of expeditious trial and quick dispatch of cases. Moreover, the Court also held that the expression interlocutory order appearing in Section 11(1) of SCA has been used in its natural sense and not in a special or wider sense as used by the Code in Section 397(2). Based on the said reasoning the charges framing order passed by the Special Judge was held to be interlocutory. Therefore, even though conclusions in Madhu Limaye[34] and V.C. Shukla[35] were exactly opposite, V.C. Shukla[36] was held to be a special case of the Special Courts Act and the term interlocutory in SCA used differently from the one used in Section 397(2) of the Code.

In Satya Narayan Sharma v. State of Rajasthan[37] the Supreme Court was considering the issue of bar on stay of the trial proceedings under Section 19(3)(c) of the PC Act, 1988. The Court observed and held that if an enactment contains a specific bar, the inherent jurisdiction cannot be exercised to get over that bar and that there could be no stay of the trial proceedings.

That further in State v. Navjot Sandhu[38], the Supreme Court considered Section 34[39] of the Prevention of Terrorism Act, 2002 (POTA) which bars appeal from an interlocutory order. Considering the special nature of POTA, the Court observed that even if the powers under Article 227 or Section 482 could have been exercised, the interlocutory order by virtue of Section 34 of POTA should have been challenged only in the appeal filed against the final judgment. Therefore, the Supreme Court again held that the challenge to any order passed in proceedings under POTA could be allowed only in an appeal filed against a final judgment by virtue of Section 34 of POTA.

In Girish Kumar Suneja v. Central Bureau of Investigation[40], the Supreme Court had earlier passed an order dated 25.07.2014[41] where in para 10[42] of the order it had made clear that any prayer for stay, etc shall be entertained only before the Supreme Court. The accused had approached the Delhi High Court against the charges framing order but the said petition was dismissed in view of para 10 above. Girish Kumar Suneja[43]  revisited the judgments in Amar Nath[44] and Madhu Limaye[45] and the concept of interlocutory orders and talked about three kinds of orders: final, intermediate and interlocutory orders.

An intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. For example,  an order taking cognizance and summoning an accused and order framing charges. That further an intermediate order is one “…which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue. …The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code…”  Girish Kumar Suneja[46] clarified and further developed on the three types of orders and it became clear that there could be orders which are neither final not interlocutory. It preferred the expression ‘intermediate’.

It appears from paras 25, 29 and 38 of the judgment in Girish Kumar Suneja[47] that  seemingly contradictory observations were made by the Supreme Court but after careful perusal of para 38 it is clear that the Court has allowed the exercise of Section 482 of the Code in respect of interlocutory orders to prevent abuse of process of court or to serve the ends of justice in the rarest of rare cases. The same being in conformity with Madhu Limaye[48].The Court further held that  Articles 226/227 of the Constitution can be resorted to in the rarest of rare cases but defended (in para 41) that in certain category of cases the High Court ought not to interfere in larger public interest. The appellants argued that legal and constitutional remedies have been denied by para 10 in the order dated 25.07.2014[49]. The Court stated that the remedies continue to be available except that the forum has been shifted from the High Court to the Supreme Court in larger public interest. The Court further held that there could be no stay of the trial proceedings under the PC Act as intended by Parliament under Section 19(3)(c).

Asian Resurfacing of Road Agency (P) Ltd. v. CBI (Supreme Court)

The judgment in Asian Resurfacing of Road Agency (P) Ltd.[50] was delivered on 28-3-2018 by Adarsh Kumar Goel, J. on behalf of himself and  Navin Sinha, J.   Rohinton Fali Nariman, J.  gave a separate concurring  opinion. The Court held that the principles laid down in Madhu Limaye[51] still hold the field and have not been diluted in any manner either in V.C. Shukla[52] or in Girish Kumar Suneja[53]. The Court held and observed:

  1. Order framing charge is neither a purely interlocutory order nor a final order and therefore can be interfered under Sections 397 or 482 of the Code or Article 227 of the Constitution;
  2. Jurisdiction of the High Court is not barred irrespective of the label of the petition;
  • High Court must interfere only in exceptional circumstances and could grant stay in appropriate cases;
  1. There must be a speaking order while granting stay of the proceedings;
  2. Once stay is granted, the challenge should be decided in 2-3 months and matter should be taken on a day-to-day basis;
  3. Stay should not be unconditional or indefinite. Conditions may be imposed;
  • Stay will stand vacated on the expiry of 6 months;
  • Extension of stay can be granted only by a speaking order showing extraordinary situation;
  1. Directions were extended to all civil and criminal cases;
  2. Proceedings before trial court shall commence automatically after 6 months if no extension is granted;
  3. Where stay is operating as on the date of the judgment, it will automatically lapse after 6 months from the date of the judgment;
  • Same course to be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts;
  • Although the Court interpreted the words “on any other ground” mentioned in Section 19(3)(c) of the PC Act as referring to all the grounds that are available in proceedings under the Act other than the grounds which relate to sanction and therefore holding that the legislative mandate is that the proceedings under the PC Act could be stayed only when it relates to sanction, it held that the trials could be stayed expressly overruling Satya Narayan Sharma[54].
  • The Supreme court noticed some conflict in different paras of Girish Kumar Suneja[55] but resolved it by holding that the correct ratio is found in para 38 and which is in consonance with Madhu Limaye[56].

The judgment thus set aside conclusions in paras 36(a), (b) and (d) of the impugned judgment in Anur Kumar Jain[57] passed by the Division Bench of the Delhi High Court.

Asian Resurfacing of Road Agency[58] (Supreme Court) has attempted to balance the objectives of the PC Act with the rights of an accused and allows challenge to an order framing charge only in exceptional circumstances. It not only resolved the controversy around the stay of the trial proceedings under Section 19(3)(c) of the PC Act but also issued directions for all civil and criminal cases and ensured that proceedings are not stayed indefinitely.

It is also pertinent to highlight that the judgment in Asian Resurfacing[59] (Supreme Court) did not appreciate that V.C. Shukla[60] had upheld Madhu Limaye[61] and Amar Nath[62] stating that these were rendered in the context of the Code of Criminal Procedure and therefore would have no application to the interpretation of Section 11(1) of SCA which expressly excludes the Code through the non-obstante clause. A similar non-obstante clause is found in Section 19(3) of PC Act as well but the judgment did not enter into a discussion on the same. Although the judgment relied on para 38 of Girish Kumar Suneja[63] to resolve the apparent conflict, it did not discuss Girish Kumar Suneja’s position on Section 19(3)(c) PC Act i.e. bar on stay of the trial proceedings. The judgment also did not go into the issue of stay granted by the Supreme Court itself and as to whether the same shall also stand vacated after six months. In a recent order of the Supreme Court, this has been clarified that stay granted by the Supreme Court shall continue unless vacated by the Supreme Court. Moreover, it is also not very clear whether directions pertaining to stay are applicable only to trial proceedings and not proceedings in other fora. The High Court of Allahabad in a recent case[64] has held that the judgment of the Supreme Court in Asian Resurfacing[65] is not applicable to tax matters.

Although the judgment has attempted to cut down on delay in disposal of pending cases especially in matters which have been stayed for longer periods, it may be achievable only if it is accompanied by a persistent effort in improving judicial infrastructure.


*Abhinav Sharma is a law graduate from Campus Law Centre, Faculty of Law, University of Delhi and a graduate Engineer from National Institute of Technology. He currently practices in Delhi and Chandigarh. He was assisted by Prajwal Shukla who is a law student.

[1] (2018) 16 SCC 299

[2] Prevention of Corruption Act,1988

[3] Dharambir Khattar v. Central Bureau of Investigation, 2009 SCC OnLine Del 1292

[4] R.C. Sabharwal v. Central Bureau of Investigation, 2010 SCC OnLine Del 3

[5] Asian Resurfacing of Road Agency  (P) Ltd. v. CBI, 2010 SCC OnLine Del 3203

[6] Anur Kumar Jain v. Central Bureau of Investigation,  2011 SCC OnLine Del 1574 

[7] 2009 SCC OnLine Del 1292

[8] 1980 Supp SCC 92

[9] (2001) 8 SCC 607

[10] (2003) 6 SCC 641

[11]  2010 SCC OnLine Del 3 

[12] 2009 SCC OnLine Del 1292

[13] Ibid

[14] 2010 SCC OnLine Del 3

[15] 2010 SCC OnLine Del 3203

[16] 2009 SCC OnLine Del 1292

[17] 2010 SCC OnLine Del 3

[18]Anur Kumar Jain v. CBI, 2011 SCC OnLine Del 1574

[19] Ibid

[20] Asian Resurfacing of Road Agency v. CBI, Criminal Appeal No. 1375 of 2013, order dated 9-9-2013 (SC)

[21] (2018) 16 SCC 299

[22] AIR 1968 SC 733 

[23] (1977) 4 SCC 137

[24] Ibid.

[25] (1977) 4 SCC 551

[26] (1977) 4 SCC 137

[27] Ibid

[28] (1977) 4 SCC 551

[29] (1977) 4 SCC 137

[30]  1980 Supp SCC 92

[31](1) Notwithstanding anything in the Code, an appeal shall lie as of right from any judgment, sentence or order, not being interlocutory order, of a Special Court to the Supreme Court both on facts and on law. (Read Code as the 1973 Code.)

[32] (1977) 4 SCC 137

[33] (1977) 4 SCC 551

[34] Ibid

[35] 1980 Supp SCC 92

[36] Ibid

[37] (2001) 8 SCC 607

[38] (2003) 6 SCC 641

[39]Section 34(1).– Notwithstanding anything in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.

[40] (2017)  14 SCC 809

[41] Manohar Lal Sharma v. Union of India, (2015) 13 SCC 35 : (2015) 13 SCC 37

[42]10. We also make it clear that any prayer for stay or impeding the progress in the investigation/trial can be made only before this Court and no other Court shall entertain the same.”

[43] (2017)  14 SCC 809

[44] (1977) 4 SCC 137

[45] (1977) 4 SCC 551

[46] (2017)  14 SCC 809

[47] Ibid

[48] (1977) 4 SCC 551

[49] Manohar Lal Sharma v. Union of India, (2015) 13 SCC 35 : (2015) 13 SCC 37

[50] (2018) 16 SCC 299

[51] (1977) 4 SCC 551

[52] 1980 Supp SCC 92

[53] (2017)  14 SCC 809

[54] (2001) 8 SCC 607

[55] (2017) 14 SCC 809

[56] (1977) 4 SCC 551

[57] 2011 SCC OnLine Del 1574

[58] (2018) 16 SCC 299

[59] Ibid.

[60] 1980 Supp SCC 92

[61] (1977) 4 SCC 551

[62] (1977) 4 SCC 137

[63] (2017) 14 SCC 809

[64] Mahesh Singh Patel v. CCE , Contempt No. 894/2019, order dated 30-7-2019 (All)

[65] (2018) 16 SCC 299

One comment

  • The details are very well captured summarising a very deep issue with ease.

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