TMI Blog2024 (3) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... ns cannot be issued in the exercise of the jurisdiction under Article 142 of the Constitution of India - both the questions framed is answered in the negative. Following conclusions have been arrived: a. A direction that all the interim orders of stay of proceedings passed by every High Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mr. Rituvendra Singh, Adv. Mr. Aniruddh Kumar, Adv. Mr. Rajrshi Gupta, Adv. Mr. Imran Ullah, Adv. Mr. Tarun Agarwal, Adv. Mr. Ankit Saran, Adv. Mr. Namit Srivastava, Adv. Mr. Rakesh Dubey, Adv. Mr. Swetashwa Agarwal, Adv. Mr. Javed H Khan, Adv. Mr. Praval Tripathi, Adv. Mr. Shariq Ahmed, Adv. Mr. Satwik Misra, Adv. Mr. Ishit Saharia,, Adv. Mr. Ashish Singh, Adv. Mr. Amit Singh, Adv. Mr. Sanjay Kumar Singh, Adv. Mr. Piyush Kumar,, Adv. Mr. Paritosh Kumar Singh,, Adv. Ms. Babita Kushwaha, Adv. Mr. Pai Amit, AOR Mr. N. Ashwani Kumar, Adv. Ms. Pankhuri Bhardwaj, Adv. Mr. Abhiyudaya Vats, Adv. Mr. Tathagata Dutta, Adv. Ms. Vanshika Dubey, Adv. Mr. Kushal Dube, Adv. Mr. Nikhil Pahwa, Adv. Mr. P. Ashok, Adv. For the Respondent : Mr. Tushar Mehta, SG Mr. Ajay Kumar Misra, Sr. Adv. Mr. Tanmaya Agarwal, AOR Mr. Shwetank Sailakwal, Adv. Mr. Wrick Chatterjee, Adv. Mrs. Aditi Agarwal, Adv. Mr. Vinayak Mohan, Adv. Mr. Mahfooz Ahsan Nazki, AOR Mr. Polanki Gowtham, Adv. Ms. Rajeswari Mukherjee, Adv. Mr. K.V. Girish Chowdary, Adv. Mr. T. Vijaya Bhaskar Reddy, Adv. Ms. Archita Nigam, Adv. Mr. Meeran Maqbool, Adv. Mr. Fuzail Ahmad Ayyubi, AOR Mr. Vijay Hansaria, Sr. Adv. Ms. Kavya Jhawar, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g1, 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 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 Gujarat AIR 1968 SC 733 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 cases 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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 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 stay does not operate for an unduly long period. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce dated 1st 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 always 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 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 Crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tand vacated even if the delay in disposing of the appeal 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 (2021) 7 SCC 413 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: a. As held by the Constitution Bench in the case of Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur AIR 1965 SC 895 , 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 afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile adopting the submissions, relied upon a decision of this Court in the case of Deoraj v. State of Maharashtra Ors. (2004) 4 SCC 697 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 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 Resurfacing1 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 dayto- day hearing has been issued in exercise of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the main case. If such an approach is adopted, it will be completely 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 short, Cr. PC ) as well as the remedies under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e noticed that this argument proceeds on the basis that the 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 different 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 pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. 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 Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 Courts in the case of L. Chandra Kumar v. Union of India Ors (1997) 3 SCC 261 . 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 Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic struc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Resurfacing1, there 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y3, 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded) 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 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 time-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. (2002) 4 SCC 247 , 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. (2017) 3 SCC 658 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 142 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (2018) 16 SCC 299 , this Court while deciding the issues arising therein went ahead in observing and directing that where a challenge to an order framing 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 trials, 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... 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