Allahabad High Court
Smt. Nisha And Others vs State Of U.P. And Another on 6 December, 2021
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 73 Case :- APPLICATION U/S 482 No. - 43568 of 2012 Applicant :- Smt. Nisha And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anurag Pathak Counsel for Opposite Party :- Govt.Advocate,Jitendra Kumar Shishodia Hon'ble Sanjay Kumar Singh,J.
(Order on Time Extension Application No. 4 of 2021) 1-Heard learned counsel for the parties and perused the record.
2-The instant application dated 27.11.2021 has been moved seeking extension of interim stay order dated 18.12.2012, which was not extended further after 12.4.2019.
3-It is submitted by the learned counsel for the applicants that vide order dated 18.12.2012 further proceedings of Complaint Case No. 77 of 2012, under Sections 323, 504, 506, 403 I.P.C., pending before the Civil Judge (J.D.)/J.M., Deoband, Saharanpur was stayed till the next date of listing with a direction to list the case after eight weeks before the appropriate Bench, but the trial court under the garb of judgment of the Apex Court in the case of Asian Resurfacing of Road Agency Private Ltd. and another Vs. Central Bureau of Investigation, (2018) 16 SCC 299 has proceeded in the matter. Much emphasis has been given by contending that the aforesaid judgment of the Apex Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd. & another (supra) has been over ruled by the subsequent judgment of the Apex Court in the case of Fazalullah Khan Vs. M. Akbar Contractor (D) By LRS. and Others, 2019 (8) ADJ 615 (SC), therefore, the interim stay order dated 18.12.2012 is liable to be extended.
4-Per contra, learned A.G.A. opposed the prayer of the applicants by contending that judgment of the Apex Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd. & another (supra) has not been over ruled till date. He further submits that the submission advanced on behalf of the applicants is not liable to be accepted as the same is wholly misconceived, therefore, the relief as sought by the applicants is liable to the rejected.
5-Having heard the arguments of the learned counsel for the parties, I find that the case of Asian Resurfacing of Road Agency Pvt. Ltd. & another (supra) has been decided by three Judges Bench of the Apex Court. The relevant paragraph nos. 35, 36 and 37 of the said judgment are reproduced herein below:
"35. In view of 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 proceedings 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 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.
36. 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 Section 397 or 482 Cr.P.C. or Article 227 of the 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 re-appreciate the matter. Even where such challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that 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 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 above parameters. 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 above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced.
37. The High Courts may also issue instructions to this effect and monitor the same so that civil or criminal proceedings do not remain pending for unduly period at the trial stage."
6-Pursuant to directions given by the Apex Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd. & another (supra), the Registrar General of the High Court of Judicature at Allahabad has issued directions to all the judicial officer subordinate to High Court of Judicature at Allahabad vide C.L. No. 12/Admin. 'G-II' dated 26.04.2018 for compliance of the directions given by the Apex Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd. & another (supra).
7-Thereafter on 22.07.2019, the two Judges Bench of the Apex Court in the case of Fazalullah Khan (supra) considering the judgment of three Judges Bench of the Apex Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd. & another (supra) has made following observation :
"We are constrained to pen down a more detailed order as the judgment of this Court in Asian Resurfacing of Road Agency's case (supra) is sought to be relied upon by difference courts even in respect of interim orders granted by this Court where the period of 6 months has expired. Such a course of action is not permissible and if the interim order granted by this Court is not vacated and continues beyond a period of 6 months by reason of pendency of the appeal, it cannot be said that the interim order would automatically stand vacated."
8-From the perusal of the aforesaid observation, it is apparent that the judgment of Asian Resurfacing of Road Agency Pvt. Ltd. & another (supra) has not been over ruled by the Apex Court, but it has been clarified that in case interim orders granted by the Apex Court where the period of six months has expired and the interim order granted by the Apex Court is not vacated and continues beyond the period of six months by reason of pendency of appeal, it cannot be said that interim order would automatically stand vacated. As such, interim orders granted by the Apex Court have been excluded and have been placed in a separate category other than High Court and trial court.
9-Here it is also relevant to mention that the Apex Court while deciding the Miscellaneous Application No. 1577 of 2020 filed in the case of Asian Resurfacing of Road Agency Pvt. Ltd. & another (supra) has passed an order dated 15.10.2020, which is quoted herein below :
"Having heard Mr. Dilip Annasaheb Taur, learned counsel for the applicant and Mr. S.V. Raju, learned ASG for the respondent, we are constrained to point out that in our directions contained in the judgment delivered in Criminal Appeal Nos. 1375-1376 of 2013 [Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. vs. Central Bureau of Investigation] and, in particular, para 35, it is stated thus:
"35. ... .... 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."
Learned Additional Chief Judicial Magistrate, Pune, by his order dated 04.12.2019, has instead of following our judgment in letter as well as spirit, stated that the Complainant should move an application before the High Court to resume the trial. The Magistrate goes on to say: "The lower Court cannot pass any order which has been stayed by the Hon'ble High Court, Bombay with due respect of ratio of the judgment in Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. (supra)." We must remind the Magistrates all over the country that in our pyramidical structure under the Constitution of India, the Supreme Court is at the Apex, and the High Courts, though not subordinate administratively, are certainly subordinate judicially. This kind of orders fly in the face of para 35 of our judgment. We expect that the Magistrates all over the country will follow our order in letter and spirit. Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, as per our judgment, within the next six months, the trial Court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same.
With this observation, the order dated 04.12.2019 is set aside with a direction to the learned Additional Chief Judicial Magistrate, Pune to set down the case for hearing immediately.
Miscellaneous Application is disposed of accordingly."
10-In view of the aforesaid discussion, it is apparently clear that there is strict direction of the Apex Court that the subordinate courts all over the country shall follow the directions given in the case of Asian Resurfacing of Road Agency Pvt. Ltd. & another (supra) in letter and spirit.
11-As such, the submission of learned counsel for the applicants, as mentioned above, is not liable to be accepted.
12-The instant application lacks merit and is accordingly rejected.
13-Office is directed to send a copy of this order to the concerned court below.
Order Date :- 6.12.2021 Sunil Kr. Gupta