Interpreting the mystery over Asian Resurfacing judgment

Updated: Nov 5

Are all the stays really going to expire within a period of six months?


On the occasion of Golden Jubilee celebrations of the Supreme Court of India, former President Shri K. R. Narayanan in his speech said, “Mysterious are the ways of justice. That is why it has been said that ‘the law court is not a cathedral but a casino where so much depends on the throw of the dice.’”


Being associated with Men’s cause that also concerns the law and litigation around gender politics and issues, I fully agree and have myself witnessed Shakuni style dice being thrown in court!


Whenever any innocent man and his family is implicated in some false case of gender-biased laws, the first thing that he tries for is some relief anyhow so that he can have some time to prepare for the legal battle ahead. The best he can get is a stay order from the High Court! But the moment he tries to work options out, he is informed that the Supreme Court had issued directions that any stays granted can have a maximum life span of 6 months! This not only comes as a hindrance for him in the battle ahead but also at times demoralize him.


While Shakuni style tricky interpretations being played with even during Corona times, Supreme Court on October 15, passed yet another order in the case titled Asian Resurfacing of Road Agency Pvt. Ltd. and Anr Vs Central Bureau of Investigation! With the likelihood of tricky interpretations getting more mischievous and cruel, I feel the puzzle around the said orders needs to be solved!


What exactly does the October 15 order in Asian Resurfacing judgment say is reproduced below:


“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 Apex Court reiterated what it had directed earlier in an order passed on March 28, 2018, in the same case Asian Resurfacing ofRoad Agency Pvt. Ltd. and Anr vs Central Bureau of Investigation, and expressed its expectation that the Magistrates all over the country follow it’s order and guidelines in para 35 of the March 2018 order, in letter and spirit.


What adds to the confusion of men seeking some relief from the superior courts are the lines below from the order October 15 order:


“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.”

Now, with Supreme Court in it’s October 15 order referring to para 35 of the March 2018 order, it is amply clear that October 15 order cannot be read in isolation, it has to be read with March 2018 order!


What exactly does para 35 of March 2018 say?


Para 35 is reproduced below:


“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.”

Not only para 35, but para 36 also carries certain directions for the courts below. The relevant portion of the 36th para is reproduced below:


“……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.”

In short, we can say that para 35 and 36 of the March 2018 order specifies the ingredients of the conditions regarding the applicability of the order, which can be summarized as below:


1) The directions of the para 35 and 36 are applicable where:

  • A civil or criminal case is pending in a Trial Court or a High Court exercising Ordinary Original Civil Jurisdiction;

  • The Trial has commenced;

  • When the High Court or Civil or Criminal Appellate/Revisional Courts have granted a stay to the trial.

2) The directions are not applicable where:

  • High Court grants stay on a civil case before the trial starts!

  • High Court grants stay on a criminal case before the trial starts!

This brings us to a question of law! What constitutes the commencement of Trial in a Civil or Criminal case?


The general presumption that once a civil case is filed, the trial starts is wrong. In a civil case, the "trial" is said to have commenced only when the issues are settled and the case is set down for recording of evidence!


Reference:


For a criminal case, "trial" means the determination of charges adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the "trial" commences only on charges being framed.


Reference:


Meaning thereby, any stay order before the trial begins has no effect of the Asian Resurfacing judgment, i.e. stay order against the FIR or charge-sheet or dismissal order of discharge application cannot be considered automatically vacated after six months are over as the stage is where the trial hasn’t commenced!


Hope this solves the puzzle around the Asian Resurfacing judgment!

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