Limiting The Operation Of Stay Up To Six Months By Judicial Fiat, An Impermissible Legislative Act

Asim Pandya, Senior Advocate

22 Oct 2020 8:43 AM GMT

  • Limiting The Operation Of Stay Up To Six Months By Judicial Fiat, An Impermissible Legislative Act

    In the last week, the Supreme Court has in Asian Resurfacing of Road Agency v. CBI (Second case), by order dated 15 October 2020 reiterated that whatever stay granted by any court, including the High Court, automatically expires within a period of six months, unless extension is granted for good reason, as per the judgment. This gives an impression that the aforesaid directions apply to...

    In the last week, the Supreme Court has in Asian Resurfacing of Road Agency v. CBI (Second case), by order dated 15 October 2020 reiterated that whatever stay granted by any court, including the High Court, automatically expires within a period of six months, unless extension is granted for good reason, as per the judgment. This gives an impression that the aforesaid directions apply to all kinds of stay or injunctions. According to me, the directions issued in Asian Resurfacing of Road Agency v. CBI (First) decided on 28 March 2018 and restated in the order dated 15 October 2020 by the Supreme Court, do not affect other types of injunction or stay where a civil or criminal proceeding is not stayed and applicable only to stay of proceedings granted in a pending civil or criminal case. This understanding clearly emerges from the language used in the judgment and the background in which such general directions were given. Asian Resurfacing of Road Agency v. CBI (Second) order dated 15 October 2020 does not expand the scope of the original directions but only reiterates.

    The Asian Resurfacing (first case )

    The Asian Resurfacing of Road Agency v. CBI order dated 28 March 2018 ['Asian Resurfacing case (First)'] arose out of a controversy regarding the stay of the criminal proceeding under the Prevention of Corruption Act, 1988, ('PC Act') against the order of framing of a charge by the Special Court. The main issue which was examined by the Delhi High Court and later on by the Supreme Court was whether the order framing a charge against accused was interlocutory order or not and whether a revision petition was maintainable against such an order, more particularly in the light of Section 19(3)(c) of the PC Act. And If a revision petition was not maintainable, whether a petition under Article 226/227 of the Constitution of India or Section 482 of the Code of Criminal Procedure, 1973 ('the Code') was maintainable or not. The Supreme Court held that an order framing charge may not be held to be purely a interlocutory order and can in a given situation be interfered with Under Section 397(2) Code of Criminal Procedure or 482 Code of Criminal Procedure or Article 227 of the Constitution which is a constitutional provision but 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. While examining the aforesaid issue the court went into the general aspect whether in other criminal and civil cases stay of the trial should be allowed to operate beyond a particular time limit. The Supreme Court was perhaps justified in delivering a judgment on the deleterious effect of indefinite stay of criminal proceeding under the PC Act, on the rule of law and efficacy of the justice delivery system, keeping in mind the scheme of the PC Act and certain special statutory provisions thereof. It would have been appropriate if the Supreme Court had just reiterated the guidelines issued it in its earlier decision in Imitiaz's case (2012) 2 SCC 688 rather than prescribing a fixed time limit in the form of a judicial mandate. However, going beyond the actual controversy and declaring a law for all civil and criminal proceeding was not justified. According to me, a mandatory time limit of six months, prescribed by the Supreme Court in Asian Resurfacing Case, is ex facie unconstitutional and it also ignores the hard reality of our judicial system that any civil or criminal case takes at least 2-5 years even if the time span is considered most conservatively. The insufficiency of manpower, infrastructure and inadequacy of number of judges at all levels of judiciary(the main causes for the inability of judges to dispose of cases) have not gone into the judicial making of law in Asian Resurfacing case.

    The relevant portion of the directions given by the Supreme Court in Asian Resurfacing (First) case is as follows:

    "Delay in trials affects the faith in Rule of Law and efficacy of the legal system. It affects social welfare and development. Even in civil or tax cases it has been laid down that power to grant stay has to be exercised with restraint. Mere prima facie case is not enough. Party seeking stay must be put to terms and stay should not be incentive to delay. The order granting stay must show application of mind. The power to grant stay is coupled with accountability…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." (para 26,27)

    The aforesaid observations are not objectionable and they are quite in conformity with the law on the subject. However, what is stated in para 35 and 36 violates the doctrine of separation of power and it amounts to impermissible legislative act. The relevant portions from paragraphs 35 and 36 are extracted :

    "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.

    .. 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."

    The Asian Resurfacing ( second case)

    The Asian Resurfacing Second case arose because the Magistrate failed to carry out the directions given by the Supreme Court in the Asian Resurfacing first case. The Supreme Court therefore expressed its displeasure in the following words:

    "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."

    In the facts of the case the Supreme Court was fully justified in criticising the approach of the Magistrate in ignoring the decision of the Supreme Court between the same parties but the declaration of a general law has all tendency to create a confusion. However, when read with the directions given by the Supreme Court in Asian Resurfacing first case, it becomes clear that the observations are applicable only when a stay had resulted in withholding of the trial proceeding under the PC Act or any other criminal or civil trial.

    General observations beyond the controversy

    It is a matter of judicial discipline that court should neither pronounce its judgment nor should issue directions on the points not raised or argued by any party to a legal proceeding. This has been very pithily stated by the constitution bench of the Supreme Court in Sanjeev Coke Manufacturing Company v. M/s. Bharat Coking Coal Ltd. AIR 1983 SC 239. The court said:

    "When serious constitutional issues are involved judges are not authorised to make disembodied pronouncements on serious and cloudy issues of constitutional policy without battle lines being properly drawn. Judicial pronouncements cannot be immaculate legal conceptions. It is but right that no important point of law should be decided without a proper lis between parties properly ranged on either side and a crossing of the swords. We think it is inexpedient for the Supreme Court to delve into problems which, do not arise and express opinion thereon."

    This well entrenched judicial restraint has been overlooked by the Supreme Court or escaped its notice in Asian Resurfacing of Road Agency v. CBI (first) and restating certain observations from its earlier decision in the Asian Resurfacing (second).

    Impermissible legislative act of judiciary- Doctrine of separation of power, violated

    In P. Ramachandra Rao v. State of Karnataka AIR 2002 SC 1856 a Seven Judges Bench of the Supreme Court considered a similar issue. The question was whether the Supreme Court was legally and constitutionally empowered to stipulate a time limit for the conclusion of a criminal trial of certain offences and to direct termination of the trial after the expiry of the stipulated time limit. The Supreme Court held that it was not permissible to fix such a time limit by a judicial fiat. The court held:

    "Bars of limitation, judicially engrafted, are, no doubt, meant to provide a solution to the aforementioned problems. But a solution of this nature gives rise to greater problems like scuttling a trial without adjudication, stultifying access to justice and giving easy exist from the portals of justice. Such general remedial measures cannot be said to be apt solutions. For two reasons we hold such bars of limitation uncalled for and impermissible: first, because it tantamount to impermissible legislation - an activity beyond the power which the Constitution confers on judiciary, and secondly, because such bars of limitation fly in the face of law laid down by Constitution Bench in A.R. Antulay's case and, therefore, run counter to the doctrine of precedents and their binding efficacy… 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…"

    The court further observed that:

    "Legislation is that source of law which consists in the declaration of legal rules by a competent authority. When judges by judicial decisions lay down a new principle of general application of the nature specifically reserved for legislature they may be said to have legislated, and not merely declared by law. …The dictum in A.R. Antulay's case is correct and still holds the field. It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. We are deleting the bars of limitation on the twin grounds that it amounts to judicial legislation, which is not permissible…"

    Asian Resurfacing judgment needs to be confined to the PC Act only:

    Considering the law as stated above, it is impermissible for the Supreme Court to fix a time limit for the operation of a stay. It seems that the seven judges' decision in P Ramchandra Rao AIR 2002 SC 1856 was not noticed by the court while issuing a mandate that every stay of the court proceeding whether criminal or civil will automatically come to an end after six months. In Asian Resurfacing case the parties were never put to notice that the court was proposing to issue a general direction applicable to all civil or criminal cases. No arguments were made on such an issue of constitutional importance and on the impact of its direction on the subordinate courts which are already overburdened with a huge backlog of cases. The Supreme Court has not addressed the issue of the average time consumed for the disposal of a civil and a criminal case while issuing this type of unworkable general directions. The direction requires a speaking order for granting extension which will result in re-argument of the stay without any change in the circumstances except the lapse of six month. The party concerned will have to file an application for extension, it will require its registration and service upon the opponent and fresh arguments which will eventually burden the overburdened judiciary as well its Registry. When a stay was granted or confirmed after hearing both parties it cannot come to an end by the efflux of time of six months. The parties always have legal options to move applications for vacating the stay orders , if they are aggrieved. The direction is made applicable to the High Court also which undermines the authority of the High Court being a court of record. In our constitutional scheme the High Courts are the highest courts at the State level with unlimited jurisdiction, and they are not under the administrative superintendence of the Supreme Court.

    The direction will give rise to many unanticipated and unforeseen legal issues such as the police arresting accused after six months, the previously issued non-bailable warrants becoming executable after six months, trial court again issuing a non-bailable warrant where the accused was justified in not attending the criminal proceeding due to the stay of proceedings etc. Similarly, a summary suit for recovery of money, which was not maintainable under Order XXXVII CPC and therefore, stayed by a higher court, will automatically resume after six months and the party will be facing a money decree. Please not that a money decree will not be stayed by a higher court unconditionally. Stay of the suit granted under Section 10 of CPC will also get vacated and a subsequent suit on the same subject matter will start proceeding further. A probate proceeding based on a forged 'Will', stayed by a higher court on the ground of a parallel criminal proceeding on the same issue, will start after six months without waiting for the outcome in criminal proceeding , resulting in waste of precious judicial time and unnecessary appeal proceedings. The aforesaid hypothetical instances are not exhaustive. On all counts the general and mandatory directions issued by the Supreme Court in Asian Resurfacing Case are required to be revisited since the remedy is worse than the disease itself.

    Views are personal only.

    (Author is a Senior Advocate at the Gujarat High Court)

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