Supreme Court Allows Petitioner-in-Person To Convert Writ Petition As SLP; Grants Interim Protection From Coercive Action

In a notable case, the Supreme Court recently refrained from turning away a petitioner, who appeared in person, merely because he availed of a wrong remedy (a writ petition under Article 32) and allowed him to convert the writ petition into a special leave petition under Article 136 of the Constitution.

"...it would be expedient for the ends of justice to grant liberty to the petitioner to carry out suitable amendments in the petition to convert it into a special leave petition...Until further orders, no coercive action shall be taken against the petitioner", the bench of Justices Dipankar Datta and N Kotiswar Singh said.

Briefly stated, the court was dealing with a petitioner-in-person who filed a writ petition under Article 32 of the Constitution seeking anticipatory bail. He was accused in a private complaint and initially challenged the proceedings by filing a writ petition before the High Court in 2009. Subsequently, the proceedings were stayed by the High Court, but the stay stood automatically vacated in view of the Supreme Court's decision in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation.

The petitioner was unaware of the fact that the stay order stood vacated and the same resulted in Additional Chief Judicial Magistrate, Ghaziabad issuing nonbailable warrant against him as well as initiating process under Section 82 of CrPC. The petitioner preferred a criminal revision against the ACJM's order, but the same was rejected. Seeking anticipatory bail, he then moved the Supreme Court under Article 32.

Noting that the petitioner did not avail of the remedy available under Section 438 CrPC, the top Court declined to exercise its writ jurisdiction under Article 32 to grant anticipatory bail. However, it noted that the decision in Asian Resurfacing was overruled this year by a Constitution Bench of the Court in High Court Bar Association, Allahabad v. State of U.P. & Ors.

Reference was also made to the recent decision in Pawan Agarwal v. State of Uttar Pradesh, where an interim order passed by the High Court in the appellant's favor was held to have revived from the date of overruling of Asian Resurfacing.

Relying on the above, the Court opined that in the present case as well, there was no reason for the High Court's interim order to not be revived, especially considering that the writ petition before the High Court was reported to be pending.

Accordingly, the petitioner was granted liberty to amend his petition to a special leave petition challenging the order of the Sessions Judge, Ghaziabad (which confirmed the ACJM's order). Senior Advocate Raghenth Basant, who was present in Court, was asked to assist the petitioner in this regard. The matter is listed on August 12.

Case Title: VIJAY BHUSHAN GAUTAM VERSUS THE STATE OF UTTAR PRADESH & ANR., WP(Crl) No. 245/2024

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