Lawwatch

A Stay Order will expire within Six months

Supreme Court reiterates its decision

A three judge bench of the Supreme Court (SC), in an order passed on 15th October 2020 in Asian Resurfacing Of Road Agency & another v Central Bureau Of Investigation, reiterated that any stay order granted by any court sub ordinate to the SC, including the High Court, in civil or criminal proceedings will automatically expire within a period of six months unless it is granted extension for good reasons within the six month period. The speaking order for extension should show that the case was of such exceptional nature than having the trial finalized.

The SC issued this order when an Additional Chief Judicial Magistrate, Pune, stated in an order that the Complainant should move an application before the High Court to resume the trial and the lower court could not pass any order which had been stayed by the High Court, Bombay.

Earlier decision of the two judge bench

Earlier a two judge bench of the Supreme Court in the judgment in Asian Resurfacing Of Road Agency & another v Central Bureau Of Investigation delivered on 28 March, 2018 held that the proceedings remaining pending for long on account of stay needs to be remedied not only in corruption cases but also in all civil and criminal cases.

The court pointed out in paragraph 35 of the judgment that 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 and therefore the SC held, “In an attempt to remedy this, situation, we consider it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same 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 finalized. 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”.

Stay of SC will continue beyond six months

In Fazalullah v M Akbar Contractor (D) the SC held that the judgment of the SC in Asian Resurfacing of Road Agency’s case is not applicable to interim orders granted by the SC where the period of six months has expired. The interim order granted by the SC would not get automatically vacated, if it is not specifically vacated by any order. If so it would continue beyond a period of six months by reason of pendency of the appeal.

The SC added that the aforesaid observation made by the SC should be kept in mind by both the trial Court and the High Court while dealing with such cases.

The declaration of SC violates some principles

It seems the declaration of the law in Asian Resurfacing of Road Agency case challenges some judicial principles.

In this case the SC declared a binding law applicable to both civil and criminal cases. It seems it is improper for a court hearing a criminal case to declare a matter in a civil case as well.

This declaration came out from the court when no party raised such an issue or agued such a matter seeking a direction. It is a matter of judicial discipline that no such direction should be issued when the matter is not raised before the court and the issues were not argued before the court. It is an improper for the SC to declare something as a law when the matter is not placed before it seeking its indulgence.

Similarly, the SC is not expected to fix a time limit for conclusion of a criminal trial. It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Such a fixation is tantamount to an impermissible legislative act by the SC as is stated in the constitutional bench judgment in P Ramachandra Rao v State of Karnataka (AIR 2002 SC 1856).

Additional Reading

  1. The 2020 judgment of the three judge bench in Asian Resurfacing of Road Agency & another v Central Bureau of Investigation is available at https://images.assettype.com/barandbench/2020-10/d88d2633-84eb-495c-b858-7a988119308a/Asian_Resurfacing_Road_Agency_vs_CBI.pdf

  2. The 2018 judgment in Asian Resurfacing of Road Agency & another v Central Bureau of Investigation, available at https://indiankanoon.org/doc/172610348/

  3. Fazalullah v M Akbar Contractor (D), available at https://indiankanoon.org/doc/145323146/

  4. P Ramachandra Rao v State of Karnataka, available at https://indiankanoon.org/doc/516669/