Another Supreme Court Bench Expresses Concerns About 'Asian Resurfacing' Judgment, Says Automatic Stay Vacation Causing Prejudice

On December 1, a bench led by the Chief Justice of India expressed doubts about the its 2018 judgment in Asian Resurfacing of Road Agency P. Ltd. Director V. Central Bureau of Investigation as per which interim orders of stay granted by High Courts and other courts in civil and criminal cases will automatically expire after a period of six months unless the orders are specifically extended.

Incidentally, on the same day, another bench of the Supreme Court, comprising Justices Abhay S Oka and Pankaj Mithal, also expressed reservations about the judgment. 

As per Asian Resurfacing, stay orders granted against the progression of civil and criminal trials will be automatically vacated after a period of six months, unless expressly extended by a judicial order.  The judgment further stated stated that the trial courts may, on expiry of the period of six months, can resume the proceedings without waiting for any other intimation unless express order extending stay is produced. 

Justice Oka, while hearing the Special Leave Petition (Sukha Devi v. State of Uttar Pradesh, SLP(Crl) 14426/2023), said that the automatic vacation of stay was causing a lot of prejudice.

“This Asian resurfacing case requires... It's causing a lot of prejudice....Suddenly Magistrate passes an order that stay is vacated on account of Asian Resurfacing....," the judge said.

Justice Oka further said that in the instant case, though the stay was automatically vacated, the Magistrate ought to have issued summons instead of issuing non-bailable warrant.

Justice Oka also hinted at the possibility of referring the Asian Resurfacing case to a larger bench.  “Obviously, para 37 of Asian resurfacing is obviously in terms of Art. 142. So perhaps we'll have to consider referring to a larger bench"

He emphasized the need to explore alternatives. "At least some opportunity must be given to party to make an application for extension instead of immediately proceeding. Something has to be worked out".

The bench therefore proposed to hear the parties on the interpretation of the directions in Asian Resurfacing and posted the matter to January 8, 2024.

The matter listed before the CJI's bench was an appeal filed by the High Court Bar Association Allahabad based on a Certificate of Appeal granted by the Allahabad High Court which raised a set of doubts regarding the Asian Resurfacing judgment. In its judgment delivered on November 3, a 3-judge bench of the Allahabad High Court framed ten questions for the deliberation of the Supreme Court in relation to the dictum of automatic vacation of stay.

The CJI-led bench observed that automatic vacation of stay can result in miscarriage of justice in some cases. While referring the matter to a 5-judge bench, the bench observed in the order as follows :

"The above directions of this court indicate that in all matters, whether civil or criminal, orders of stay, which have once been granted, should not continue beyond a period of six months, unless specifically extended and the stay shall stand vacated automatically.

We have reservations in regard to the correctness of the the broad formulation of the principles in the above terms.

We are of the view that the principle which has been laid down in the above decision to the effect that a stay shall be automatically stand vacated (which would mean an automatic vacation of stay without the application of judicial mind to whether the stay should or should not be extended further) is liable to result in a miscarriage of justice."

Case Title : Sukha Devi v. State of Uttar Pradesh, SLP(Crl) 14426/2023

Click here to read the order