Automatic Vacation Of Stay Invalid In Pending Trials After Overruling Of 'Asian Resurfacing' Judgment : Supreme Court

Interpreting its decision in High Court Bar Association, Allahabad v. State of U.P. & Ors., which overruled the 2018 judgment in Asian Resurfacing, the Supreme Court has held that if an interim protection order passed by a High Court stood automatically vacated pursuant to Asian Resurfacing but the trial has not been concluded, the vacation of stay shall be invalid and inoperative from the date of overruling.

For context, while overruling Asian Resurfacing, the Supreme Court observed in High Court Bar Association, Allahabad that if trials have been concluded, the orders of automatic vacation of stay shall remain valid.

Taking an inference from this, the bench of Justices Dipankar Datta and KV Viswanathan observed :

"the sequitur of the observations made by the Constitution Bench in High Court Bar Association, Allahabad (supra), in the context of this appeal, is that if the trial has not been concluded following an automatic vacation of stay per Asian Resurfacing (supra), such automatic vacation of stay would be invalid and stand inoperative."

It added that interim protection granted to the accused by the High Court (but vacated in terms of Asian Resurfacing) shall revive from the date of overruling of the decision and no coercive action shall be taken against him till the time the High Court vacates/varies its order.

Factual Background

The appellant was accused in 2010 of the offences punishable under Sections 420, 406, 307, 323, 504, and 506 of IPC. Challenging the criminal proceedings, he approached the Allahabad High Court with a writ petition under Article 226 of the Constitution and the High Court granted a stay against his arrest, subject to conditions.

Subsequently, the investigation was completed and a chargesheet was filed. The same put an end to the appellant's interim protection. Challenging the chargesheet, he approached the High Court again, this time under Section 482 CrPC, and obtained an order dated August 19, 2011 of no coercive action in his favor.

In 2018, while the appellant's Section 482 CrPC petition was pending, the Supreme Court delivered its judgment in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation. Pursuant to it, the interim protection order in his favor stood vacated.

As such, the appellant moved the High Court with an application under Section 438 CrPC seeking anticipatory bail. However, the same was dismissed in July, 2023 on the ground that his Section 482 CrPC petition (for quashing of charge sheet) was still pending. Assailing this dismissal order, the appellant moved the Supreme Court, which granted him interim protection in August, 2023.

While the appeal was pending, a Constitution Bench of the Supreme Court overruled Asian Resurfacing on February 29, 2024 [Ref: High Court Bar Association, Allahabad].

Appellant's Case

Referring to the decision in High Court Bar Association, Allahabad, the appellant pointed out the legal position that Article 142 of the Constitution does not empower the top Court to ignore substantive rights of litigants, that there cannot be automatic vacation of stay granted by High Court and that blanket directions cannot be issued in exercise of jurisdiction under Article 142.

He also cited an excerpt from High Court Bar Association, Allahabad, as per which, if trial has been concluded as a result of automatic vacation of stay based only on the decision in Asian Resurfacing, the order of automatic vacation of stay shall remain valid.

Court Observations

Taking note of High Court Bar Association, Allahabad, the Court held that if trial has not been concluded, automatic vacation of stay pursuant to Asian Resurfacing shall be invalid.

Considering that in the appellant's case, the trial had not concluded, it observed that the High Court stay order of 2011 would stand revived. Therefore, no coercive action could be taken against the appellant till his Section 482 CrPC petition was next considered by the High Court.

"The appeal stands disposed of by holding that the interim order dated 19.08.2011 granted by the High Court has become operative from the date Asian Resurfacing (supra) stands overruled and shall govern the parties till such time the High Court, on being approached either by the respondent – State or by the informant, vacates/varies the said order permitting coercive action to be taken against the appellant."

Disposing of the appeal, the court left it open for the State and the informant to approach the High Court for appropriate relief.

Case Title: PAWAN AGARWAL VERSUS STATE OF UTTAR PRADESH, SLP (Crl.) No. 9625/2023

Citation : 2024 LiveLaw (SC) 511

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