To Stay or Not to Stay (Trial), that is the Question – Revisiting Asian Resurfacing of Road Agency (P) Ltd. v. CBI

Background

The Supreme Court while referring to a study¹ as to the fate of a case when an investigation/trial has been stayed by the High Court, observed:

(i) As high as 9% of the cases have completed more than twenty years since the date of the stay order.

(ii) Roughly 21% of the cases have completed more than ten years since the date of the stay order.

(iii) Average pendency per case (counted from the date of stay order till 26-7-2010) is around 7.4 years.

The data above showed that once an investigation/trial was stayed by a higher court, the case remained pending for years in the lower court. Interestingly, the data was only till 2010 and referred to only 4 kinds of offences i.e. murder, rape, kidnapping, and dacoity.

One would wonder about the rise in the percentage of pendency if data is compiled till the year 2023 and covers offences across statutes.

Another interesting observation was that most of the cases were stayed at the stage of filing charge-sheet (almost 32%) and other prominent stages of stay were “appearance” (19%) and summons (19%).

Criminal trials in India take years to complete. There may be several reasons for that. Infrastructural inadequacies are one such reason, but the criminal procedure itself is so cumbersome that it would take years for its disposal. Every stage of a case, once the charge-sheet is filed, brings within it the possibility of delaying it for a considerable time.

For example, when a charge-sheet is filed in a court, the accused person can approach the High Court under Section 482 CrPC² to quash the charge-sheet. Suppose his petition in the High Court is dismissed and the trial court issues summons, the accused can again question the summons on various grounds. The accused is also given the opportunity under Section 227 CrPC³ to fight for his discharge. Suppose his discharge application is rejected by the trial court, he can again challenge the order rejecting his discharge application before the High Court. In the meantime, if charges are framed against him, the accused would again rush to the High Court in its revisional jurisdiction to quash the charges framed against him. The intention behind Section 227 CrPC was that an innocent person should not be subjected to judicial process when the case against him does not have any foundation.

The Supreme Court had clarified in A.R. Antulay case⁴ that proceedings taken at the instance of either party which according to their perception is in the advancement of enforcing their rights cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay:

86. (4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, “delay is a known defence tactic”. Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is — who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay.

But then experience also shows us the other side of the coin. In some States, where the charge-sheet is filed against several accused persons, the practice is such that each accused would file his discharge application at different points of time (more particularly when the court has disposed of the previous pending application) and considerable time is lost in disposing of each discharge application one by one when the better alternative could have been that all accused persons file their discharge applications simultaneously or within short span so that the court could decide it together since each application arises from the same case.

In one case involving several accused persons, charges were framed against them all and witnesses were being examined by the prosecution, when one of the accused approached the revisional court against order framing charges. The revision was admitted and the entire trial before the lower court was stayed by the revisional court for “all of the accused persons” until the revision of that one accused was disposed of.

This has more serious consequences when the case which is stayed is related to a corruption matter. The delay erodes public confidence, star witnesses may become incapable of giving evidence, the possibility of tampering is also open, witnesses may die, or the accused may die, and the proceedings would abate.

In Prem Chand Meena case⁵, the Delhi High Court observed:

25. It is a well-known fact that trials of corruption cases are not permitted to proceed further easily, and a trial of corruption case takes anything up to 20 years in completion. One major reason for this state of affairs is that the moment a charge is framed, every trial lands into High Court and order on charge is invariably assailed by the litigants and the High Court having flooded itself with such revision petitions, would take any number of years in deciding the revision petitions on charge and the trials would remain stayed.

Prevention of Corruption Act, 1988

It was in this background that Parliament enacted the Prevention of Corruption Act, 1988 (PC Act, 1988)⁶ and in Sections 19(3)(b) and (c)⁷ ensured:

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission, or irregularity has resulted in a failure of justice; and

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal, or other proceedings.

Order on framing of charge: Whether an interlocutory order

For a long time, the debate has been whether the order framing charges is an interlocutory order or not.

Section 397(2) CrPC⁸ states that the power of revision cannot be exercised in relation to an interlocutory order. The order on charge (not being a final order) was held to be an interlocutory order. Hence revision would not lie. To circumvent this, accused persons instead of filing revision applications, started challenging the order framing charges under Section 482 CrPC.

Section 482 starts with a non obstante clause saying that:

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

The words “Nothing in this Code” included Section 397 CrPC (revisional jurisdiction) and hence an order framing charges, though could not be challenged under revision, now could be challenged under Section 482 CrPC.

But then, it was held⁹ that Section 482 CrPC cannot be used when the exercise of such powers would be in derogation of an express bar contained in any other statutory enactment.

Section 19(3)(c) of the PC Act, 1988 expressly barred revision of interlocutory orders in corruption cases, and hence by corollary Section 482 CrPC also ought not to permit indirectly which was not allowed directly. Thus, Section 482 CrPC may have an overriding effect on provisions contained in CrPC, but it was held that it will not have an overriding effect on provisions in other statutes e.g. the PC Act.

Thus, both the revisional jurisdiction of the High Court as well as inherent jurisdiction under Section 482 CrPC were barred when it came to challenging order framing of charges. In order to circumvent this hindrance, accused persons now started approaching the High Court under Article 227¹⁰ challenging the order framing charges, thus essentially doing that which was not permitted either by Section 397 CrPC or Section 482 CrPC.

The Delhi High Court in Prem Chand Meena¹¹ observed:

26. The decisions on a petition assailing charge requires going through the voluminous evidence collected by the CBI, analysing the evidence against each accused and then coming to conclusion whether the accused was liable to be charged or not. This exercise is done by Special Judge invariably vide a detailed speaking order. Each order on charge of the Special Judge, under prevention of corruption cases, normally runs into 40 to 50 pages where evidence is discussed in detail and thereafter the order for framing of charge is made. If this Court entertains petitions under Article 227 of the Constitution to reappreciate the evidence collected by CBI to see if charge was liable to be framed or, in fact, the Court would be doing so contrary to the legislative intent. No court can appreciate arguments advanced in a case on charge without going through the entire record. The issues of jurisdiction and perversity are raised in such petitions only to get the petition admitted. The issue of jurisdiction is rarely involved. The perversity of an order can be argued in respect of any well-written judgment because perversity is such a term which has a vast meaning and an order which is not considered by a litigant in its favour is always considered perverse by him and his counsel. Therefore, entertaining a petition under Article 227 of the Constitution against an order on charge would amount to doing indirectly the same thing which cannot be done directly, I consider that no petition under Article 227 can be entertained.

It was in this background that reference was made to the larger Bench of the Delhi High Court. The crux of which is tabled below:

Delhi High Court	Revision		Section 482	Article 227	Remarks
Prem Chand Meena v. CBI		Not maintainable	Not maintainable	Not maintainable	Referred to the larger Bench of Delhi High Court
Larger Bench		Not maintainable	Maintainable	Maintainable	But a stay cannot be granted due to Section 19(3)(c)

The larger Bench of the Delhi High Court¹² ruled:

(1) Order framing charges being an interlocutory order cannot be challenged in revision.

(2) Order framing charges can be challenged under Section 482 CrPC and/or Article 227.

(3) When order framing charges is being challenged before the High Court, the High Court cannot grant a stay of proceedings due to the mandate of Section 19(3)(c) of the PC Act, 1988.

When the case finally reached the Supreme Court (Asian Resurfacing¹³), the judgment of the larger Bench of the High Court was assailed mainly on 2 grounds:

(1) Order framing of charges is not an interlocutory order — revision is maintainable.

(2) In spite of Section 19(3)(c) of the PC Act, 1988, which says that no stay can be granted, this does not limit the power of the High Court to grant stay under Section 482 CrPC or Article 227 of the Constitution of India.

The crux of the judgment of the Supreme Court¹⁴ was that:

(1) Order framing charges is neither final nor interlocutory in nature. It would fall under another category of “intermediate orders”, hence revision against such orders is not barred.

(2) The High Courts being courts of record, are not limited by Section 19(3)(c) of the PC Act, 1988 and can order stay of trial in an appropriate case.

(3) The power of the High Court to interfere with an order framing charge and to grant stay is to be exercised only in an exceptional situation.

In order to put a halt to the menace of huge pendency of cases due to stay granted by High Courts, the Supreme Court observed that the entire scheme of the PC Act, 1988 is such as to render expeditious disposal of cases. Hence, the Supreme Court in Asian Resurfacing¹⁵ also ordered:

30. … The order granting stay must show application of mind.

31. Wherever stay is granted, a speaking order must be passed showing that the case was of exceptional nature and delay on account of stay will not prejudice the interest of speedy trial in a corruption case. Once stay is granted, proceedings should not be adjourned, and concluded within two-three months (by the court ordering stay).

*         *         *

34. … Appropriate conditions may be imposed so that the party in whose favour stay is granted is accountable if court finally finds no merit in the matter and the other side suffers loss and injustice.…Where the matter remains pending for longer period, the order of stay will stand vacated on expiry of six months, unless extension is granted by a speaking order showing extraordinary situation where continuing stay was to be preferred to the final disposal of trial by the trial court.

*         *         *

36. … Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up.

37. … the challenge to an order of charge should be entertained in the rarest of rare case only to correct a patent error of jurisdiction and not to reappreciate the matter.

Critique of the judgment

Legal scholars have argued that automatic vacation of stay is creating many problems. It can even lead to unforeseen legal issues such as, courts may issue NBWs after the expiry of six months, or the court may proceed with the examination of witnesses in a case which was earlier stayed by the High Court or the civil courts may proceed with the execution of decrees to the prejudice of the party who secured a stay.

It is suggested by the author that the Magistrates throughout the country should instead of automatically proceeding with the trial once six months have elapsed should give an opportunity to the party who had secured a stay to get an extension of the stay by the higher court. A short date may be fixed for that purpose and the relevant file may be taken up on record. This would be in conformity with the natural justice principles, allowing the affected party to get an opportunity to seek an extension and prevent surprise at the hearing. This would also avoid unnecessary incarcerations.

Another issue that has cropped up, particularly in the State of Uttar Pradesh is that U.P. practically being the largest State in India in terms of population and possibly also in terms of litigation, it is realistically not possible for the courts to strictly adhere to the timeline of 6 months due to the huge docket size of Benches in High Court. Due to the paucity of time and the sheer number of cases (fresh and listed both) each day, it is practically impossible for the High Court to dispose of those cases in which stay has been granted or even extend the stay by way of speaking order. On many occasions, the listed matters are not taken up due to paucity of time leading to automatic vacation of stay despite no fault of the litigant who has been diligently pursuing his petition. The Full Bench of the Allahabad High Court has remarked in Chandrapal Singh¹⁶:

35. … Interim protection granted by the High Court is thus being withdrawn on a large scale without any fault of the parties which are adversely affected. Thus, devoid of protection of the interim orders vast numbers of litigants suffer arrest and imprisonment or face vexatious litigation or are visited by civil consequences.

It is a settled principle of law that the act of court should prejudice no one (actus curiae neminem gravabit). The Full Bench of the Allahabad High Court vide order dated 3-11-2023, while rejecting the reference made to it regarding Asian Resurfacing judgment¹⁷, granted leave to appeal to the Supreme Court under Article 132 of the Constitution of India¹⁸. The Court has framed 10 substantial questions of law as to interpretation of the Constitution. Until that is decided, the law laid down by the Supreme Court in Asian Resurfacing¹⁹ holds the field.

Parting remarks

The Asian Resurfacing judgment²⁰ has been in the limelight therefore it is essential to clear few frequently asked doubts regarding the correct import of the judgment.

Q 1. Does the operation of Asian Resurfacing also apply when an investigation by police/any other investigating agency has been stayed by the High Court?

Answer: No, it is only for trial of civil and criminal cases.

Q 2. Does the operation of Asian Resurfacing also apply to stay on proceedings of a tribunal?

Answer: No.

Q 3. Suppose the operation of the order of a writ court presided by a Single Judge Bench is stayed by the order of the Division Judge Bench of that High Court in a letters patent appeal. Will the operation of Asian Resurfacing apply in this case?

Answer: No.²¹

Q 4. Does the ruling in Asian Resurfacing also apply to an order of stay made by the Supreme Court?

Answer: No.²²

Q 5. Is it mandatory for Magistrates to fix the date of hearing after the expiry of 6 months from the date of stay?

Answer: Yes, as per Asian Resurfacing of Road Agency (P) Ltd. v. CBI.²³

Q 6. Does the operation of Asian Resurfacing judgment also apply to execution proceedings?

Answer: No, the automatic vacation of stay applies only to the trial of civil and criminal proceedings. Once a decree is passed in a civil case, the trial ends, and execution proceedings initiated at the instance of decree-holder but later stayed by High Courts would not automatically vacate after the expiry of 6 months. Refer, Raosaheb Yesba Sartape v. Balveer Shankar Sartape.²⁴ Also read, Dharam Vir Sood.²⁵

Q 7. Does the operation of Asian Resurfacing judgment also apply to stay order granted by 2nd appellate court (High Court) against the decision of 1st appellate court (Court of Additional District Judge)?

Answer: No.²⁶

Q 8. Can the High Court refuse to hear a challenge in revision to an order framing charges, if there is no patent error of jurisdiction?

Answer: Even though the Supreme Court in Asian Resurfacing²⁷ has held that, “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.” However, in Sanjay Kumar Rai v. State of U.P.²⁸, the Court has observed that the approach of the High Court in dismissing the criminal revision on the ground of lack of jurisdiction under Section 397 CrPC is not correct as the High Court is duty-bound to examine the issue in detail and find out whether the continuation of proceedings will amount to abuse of process of law.