Whether an interim order can come to an end automatically only due to the lapse of time;

* Author

[2024] 2 S.C.R. 946 : 2024 INSC 150

High Court Bar Association, Allahabad

v.

State of U.P. & Ors.

Criminal Appeal No. 3589 of 2023

29 February 2024

[Dr Dhananjaya Y. Chandrachud, CJI, Abhay S. Oka,*

J. B. Pardiwala, Manoj Misra and Pankaj Mithal,* JJ.]

Issue for Consideration

What is the object behind passing interim orders; Whether the

High Courts are empowered to vacate or modify interim relief;

Whether an interim order can come to an end automatically only

due to the lapse of time; What is the scope of exercise of powers

u/Art. 142 of the Constitution; Position of the High Courts and its

power of superintendence; Whether the Court should deal with

an issue not arising for consideration; Effect of directions issued

by the Constitutional Courts to decide pending cases in a timebound manner; Whether the Supreme Court, in the exercise of

its jurisdiction u/Art. 142 of the Constitution of India, can order

automatic vacation of all interim orders of the High Courts of

staying proceedings of Civil and Criminal cases on the expiry of

a certain period; Whether the Supreme Court, in the exercise of

its jurisdiction u/Art. 142 of the Constitution of India, can direct the

High Courts to decide pending cases in which interim orders of

stay of proceedings has been granted on a day-to-day basis and

within a fixed period; Procedure to be adopted by High Courts

while passing interim order of stay of proceedings and for dealing

with the applications for vacating interim stay.

Headnotes

Interim Orders – Object of:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya

Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) An

order of interim relief is usually granted in the aid of the final relief

sought in the case – An occasion for passing an order of stay of

the proceedings normally arises when the High Court is dealing

with a challenge to an interim or interlocutory order passed during

the pendency of the main case before a trial or appellate Court –

The High Court can grant relief of the stay of hearing of the main 

[2024] 2 S.C.R. 947

High Court Bar Association, Allahabad v. State of U.P. & Ors.

proceedings on being satisfied that a prima facie case is made out

and that the failure to stay the proceedings before the concerned

Court in all probability may render the remedy adopted infructuous

– When the High Court passes an interim order of stay, though

the interim order may not expressly say so, the three factors, viz;

prima facie case, irreparable loss, and balance of convenience, are always in the back of the judges’ minds – Though interim orders

of stay of proceedings cannot be routinely passed as a matter of

course, it cannot be said that such orders can be passed only in

exceptional cases – Nevertheless, the High Courts, while passing

orders of stay in serious cases like the offences under the PC Act

or serious offences against women and children, must be more

cautious and circumspect. [Para 13]

Interim Orders – Whether the High Courts are empowered to

vacate or modify interim relief:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya

Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) The

High Courts are always empowered to vacate or modify an order

of interim relief passed after hearing the parties on the following,

amongst other grounds: - (a)If a litigant, after getting an order

of stay, deliberately prolongs the proceedings either by seeking

adjournments on unwarranted grounds or by remaining absent

when the main case in which interim relief is granted is called out

for hearing before the High Court with the object of taking undue

advantage of the order of stay; (b)The High Court finds that the

order of interim relief is granted as a result of either suppression

or misrepresentation of material facts by the party in whose favour

the interim order of stay has been made; and (c) The High Court

finds that there is a material change in circumstances requiring

interference with the interim order passed earlier – In a given

case, a long passage of time may bring about a material change

in circumstances – These grounds are not exhaustive – There

can be other valid grounds for vacating an order of stay. [Para 15]

Interim Orders – Whether an interim order can come to an

end automatically only due to the lapse of time:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya

Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.)

Elementary principles of natural justice, which are well recognised

in jurisprudence, mandate that an order of vacating interim relief

or modification of the interim relief is passed only after hearing all 

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the affected parties – An order of vacating interim relief passed

without hearing the beneficiary of the order is against the basic

tenets of justice – Application of mind is an essential part of any

decision-making process – Therefore, without application of mind,

an order of interim stay cannot be vacated only on the ground of

lapse of time when the litigant is not responsible for the delay – An

interim order lawfully passed by a Court after hearing all contesting

parties is not rendered illegal only due to the long passage of

time. [Para 16]

Constitution of India – What is the scope of exercise of powers

u/Art. 142 of the Constitution:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.

Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) Important

parameters for the exercise of the jurisdiction u/Art. 142 of the

Constitution of India which are relevant for deciding the reference

are as follows: (i) The jurisdiction can be exercised to do complete

justice between the parties before the Court – It cannot be exercised

to nullify the benefits derived by a large number of litigants based

on judicial orders validly passed in their favour who are not parties

to the proceedings before this Court; (ii) Article 142 does not

empower this Court to ignore the substantive rights of the litigants;

(iii) While exercising the jurisdiction u/Art. 142 of the Constitution

of India, this Court can always issue procedural directions to the

Courts for streamlining procedural aspects and ironing out the

creases in the procedural laws to ensure expeditious and timely

disposal of cases – However, while doing so, this Court cannot

affect the substantive rights of those litigants who are not parties

to the case before it – The right to be heard before an adverse

order is passed is not a matter of procedure but a substantive right;

and (iv) The power of this Court u/Art. 142 cannot be exercised to

defeat the principles of natural justice, which are an integral part

of jurisprudence. [Para 37]

Constitution of India – Position of the High Courts and its

power of superintendence:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.

Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) A High

Court is also a constitutional Court – It is well settled that it is

not judicially subordinate to the Supreme Court – A High Court is

constitutionally independent of the Supreme Court of India – The

power of the High Court u/Art. 227 of the Constitution to have 

[2024] 2 S.C.R. 949

High Court Bar Association, Allahabad v. State of U.P. & Ors.

judicial superintendence over all the Courts within its jurisdiction

will include the power to stay the proceedings before such Courts

– By a blanket direction in the exercise of power u/Art. 142 of the

Constitution of India, the Supreme Court cannot interfere with the

jurisdiction conferred on the High Court of granting interim relief

by limiting its jurisdiction to pass interim orders valid only for six

months at a time – Putting such constraints on the power of the

High Court will also amount to making a dent on the jurisdiction of

the High Courts u/Art. 226 of the Constitution, which is an essential

feature that forms part of the basic structure of the Constitution.

[Paras 23 and 24]

Practice and Procedure – Whether the Court should deal with

an issue not arising for consideration:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya

Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) In the

case of Sanjeev Coke Manufacturing Company, a Constitution

Bench of the Supreme Court held that (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 – It is inexpedient for

the Supreme Court to delve into problems which do not arise and

express opinion thereon. [Para 25]

Constitution of India – Art. 226 (3) – Making of an application

for vacating interim relief:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya

Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) On its

plain reading, clause (3) is applicable only when an interim relief

is granted without furnishing a copy of the writ petition along with

supporting documents to the opposite party and without hearing

the opposite party – Even assuming that clause (3) is not directory,

it provides for an automatic vacation of interim relief only if the

aggrieved party makes an application for vacating the interim relief

and when the application for vacating stay is not heard within the

time specified – Clause (3) will not apply when an interim order in

a writ petition u/Art. 226 is passed after the service of a copy of

the writ petition on all concerned parties and after giving them an

opportunity of being heard – It applies only to ex-parte ad interim 

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orders. [Para 26] Per Pankaj Mithal, J. (concurring) It is noticeable

that u/Art. 226(3) of the Constitution of India, the automatic vacation

of the stay order envisages making of an application to the High

Court for the vacation of the interim stay order – Therefore, filing

of an application for vacating the stay order is a sine qua non for

triggering the automatic vacation of the stay order u/Art. 226(3) if

such an application is not decided within the time prescribed of

two weeks. [Para 6]

Directions by Supreme Court – Effect of directions issued by

the Constitutional Courts to decide pending cases in a timebound manner – The three Judges Bench of the Supreme

Court issued various directions in Asian Resurfacing – The

net effect of the directions issued in paragraphs 36 and 37 of

Asian Resurfacing is that the petition in which the High Court

has granted a stay of the proceedings of the trial, must be

decided within a maximum period of six months – If it is not

decided within six months, the interim stay will be vacated

automatically, virtually making the pending case infructuous:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya

Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) The

Constitution Benches of the Supreme Court have considered the

issue of fixing timelines for the disposal of cases in the cases of

Abdul Rehman Antulay and P. Ramachandra Rao – The principles

laid down in the decision will apply even to civil cases before the

trial courts – The same principles will also apply to a direction

issued to the High Courts to decide cases on a day-to-day basis

or within a specific time – Thus, the directions of the Court that

provide for automatic vacation of the order of stay and the disposal

of all cases in which a stay has been granted on a day-to-day

basis virtually amount to judicial legislation – The jurisdiction of

this Court cannot be exercised to make such a judicial legislation

– Only the legislature can provide that cases of a particular

category should be decided within a specific time – There are

many statutes which incorporate such provisions – However,

all such provisions are usually held to be directory – A judicial

notice will have to be taken of the fact that in all the High Courts

of larger strength having jurisdiction over larger States, the daily

cause lists of individual Benches of the cases of the aforesaid

categories are of more than a hundred matters – Therefore, once

a case is entertained by the High Court and the stay is granted,

the case has a long life – The High Courts cannot be expected to 

[2024] 2 S.C.R. 951

High Court Bar Association, Allahabad v. State of U.P. & Ors.

decide, on a priority basis or a day-to-day basis, only those cases

in which a stay of proceedings has been granted while ignoring

several other categories of cases that may require more priority

to be given – Therefore, constitutional Courts should not normally

fix a time-bound schedule for disposal of cases pending in any

Court – The pattern of pendency of various categories of cases

pending in every Court, including High Courts, is different – The

situation at the grassroots level is better known to the judges

of the concerned Courts – Therefore, the issue of giving out-of

turn priority to certain cases should be best left to the concerned

Courts – The orders fixing the outer limit for the disposal of cases

should be passed only in exceptional circumstances to meet

extraordinary situations. [Paras 28, 29, 30, 32, 33]

Constitution of India – Interim Orders – (i) Whether the

Supreme Court, in the exercise of its jurisdiction u/Art. 142 of

the Constitution of India, can order automatic vacation of all

interim orders of the High Courts of staying proceedings of

Civil and Criminal cases on the expiry of a certain period; (ii)

Whether the Supreme Court, in the exercise of its jurisdiction

u/Art. 142 of the Constitution of India, can direct the High

Courts to decide pending cases in which interim orders of

stay of proceedings has been granted on a day-to-day basis

and within a fixed period:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.

Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) The three

Judges Bench of the Supreme Court decided the case of Asian

Resurfacing and issued directions in paragraphs 36 and 37 – The

direction issued in paragraph 36 was regarding automatic vacation

of stay and direction in paragragh 37 was for conducting day-to-day

hearing within a time frame – The present Bench of the Judges

does not concur with the three judges Bench which decided the

case of Asian Resurfacing and issued directions in paragraphs 36

and 37 – Both directions were issued in the exercise of jurisdiction

u/Art.142 of the Constitution – There cannot be automatic vacation

of stay granted by the High Court – The direction issued (in the

case of Asian Resurfacing) to decide all the cases in which an

interim stay has been granted on a day-to-day basis within a time

frame is also not approved – Blanket directions cannot be issued

in the exercise of the jurisdiction u/Art. 142 of the Constitution

of India – Both the questions framed above are answered in the

negative. [Paras 12, 36]

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Interim Orders – Stay order cannot be automatically vacated:

Held: Per Pankaj Mithal, J. (concurring): The stay order granted

in any proceedings would not automatically stand vacated on the

expiry of a particular period until and unless an application to that

effect has been filed by the other side and is decided following the

principles of natural justice by a speaking order – It is expedient

in the interest of justice to provide that a reasoned stay order

once granted in any civil or criminal proceedings, if not specified

to be time bound, would remain in operation till the decision of

the main matter or until and unless an application is moved for its

vacation and a speaking order is passed adhering to the principles

of natural justice either extending, modifying, varying or vacating

the same. [Paras 7 and 8]

Practice and Procedure – Procedure to be adopted by High

Courts while passing interim order of stay of proceedings

and for dealing with the applications for vacating interim stay:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.

Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) To avoid

any prejudice to the opposite parties, while granting ex-parte adinterim relief without hearing the affected parties, the High Courts

should normally grant ad-interim relief for a limited duration – After

hearing the contesting parties, the Court may or may not confirm

the earlier ad-interim order – Ad-interim relief, once granted, can be

vacated or affirmed only after application of mind by the concerned

Court – Hence, the Courts must give necessary priority to the

hearing of the prayer for interim relief where adinterim relief has

been granted – Though the High Court is not expected to record

detailed reasons while dealing with the prayer for the grant of stay

or interim relief, the order must give sufficient indication of the

application of mind to the relevant factors – An interim order passed

after hearing the contesting parties cannot be vacated by the High

Court without giving sufficient opportunity of being heard to the party

whose prayer for interim relief has been granted – Even if interim

relief is granted after hearing both sides, as observed earlier, the

aggrieved party is not precluded from applying for vacating the

same on the available grounds – In such a case, the High Court

must give necessary priority to the hearing of applications for

vacating the stay, if the main case cannot be immediately taken

up for hearing – Applications for vacating interim reliefs cannot

be kept pending for an inordinately long time. [Paras 34 and 35]

[2024] 2 S.C.R. 953

High Court Bar Association, Allahabad v. State of U.P. & Ors.

Case Law Cited

Asian Resurfacing of Road Agency Private Limited &

Anr. v. Central Bureau of Investigation, [2018] 2 SCR

1045 : (2018) 16 SCC 299 – Reconsidered.

Prem Chand Garg & Anr. v. The Excise Commissioner,

U.P. and Ors., [1963] Suppl. 1 SCR 885 : (1962)

SCC Online SC 37; Supreme Court Bar Association

v. Union of India & Anr., [1998] 2 SCR 795 : (1998) 4

SCC 409; L. Chandra Kumar v. Union of India & Ors.,

[1997] 2 SCR 1186 : (1997) 3 SCC 261; Sanjeev Coke

Manufacturing Company v. M/s. Bharat Coking Coal Ltd.

& Anr, [1983] 1 SCR 1000 : (1983) 1 SCC 147; Abdul

Rehman Antulay & Ors. v. R.S. Nayak & Anr, [1991]

Suppl. 3 SCR 325 : (1992) 1 SCC 225; P. Ramachandra

Rao v. State of Karnataka, [2002] 3 SCR 60 : (2002) 4

SCC 578 – followed.

Deputy Commissioner of Income Tax & Anr. v. Pepsi

Foods Limited, [2021] 4 SCR 1 : (2021) 7 SCC 413;

Tirupati Balaji Developers (P) Ltd. & Ors. v. State of

Bihar & Ors., [2004] Suppl. 1 SCR 494 : (2004) 5 SCC

1 – relied on.

Mohan Lal Magan Lal Thacker v. State of Gujarat,

[1968] 2 SCR 685 : AIR 1968 SC 733; Raza Buland

Sugar Co. Ltd. v. Municipal Board, Rampur, [1965] 1

SCR 970 : AIR 1965 SC 895; Kailash v. Nanhku & Ors,

[2005] 3 SCR 289 : (2005) 4 SCC 480; Deoraj v. State

of Maharashtra & Ors., [2004] 3 SCR 920 : (2004) 4

SCC 697; All India Judges’ Association & Ors. v. Union

of India & Ors., [2002] 2 SCR 712 : (2002) 4 SCC 247;

Imtiyaz Ahmed v. State of Uttar Pradesh & Ors., [2017]

1 SCR 305 : (2017) 3 SCC 658 – referred to.

List of Acts

Constitution of India; Constitution (Forty-fourth Amendment) Act,

1978; Prevention of Corruption Act, 1988; Income Tax Act, 1961.

List of Keywords

Interim orders; Vacation or modification of interim relief;

Automatic end of interim relief; Lapse of time; Enforcement

of decrees and orders of Supreme Court and orders as to 

954 [2024] 2 S.C.R.

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discovery, etc; Interim orders of the High Courts; Interim orders

of stay of proceedings; Day-to-day basis hearing; Position of

the High Courts; High Court’s power of superintendence; Issue

not arising for consideration; Deciding pending cases in a timebound manner; Effect of directions issued by the Constitutional

Courts; Procedure to be adopted by High Courts while passing

interim order; Applications for vacating interim stay.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.3589

of 2023

With

Special Leave Petition (Crl.) Nos. 13284-13289 of 2023 and Criminal

Appeal... Diary No. 49052 of 2023

From the Judgment and Order dated 03.11.2023 of the High Court of

Judicature at Allahabad in A482 No. 28574 of 2019

Appearances for Parties

Rakesh Dwivedi, VK Shukla, Kavin Gulati, S.G. Hasnain, Ravindra

Singh, Dinesh Goswami, Sr. Advs., Shantanu Krishna, Nitin Sharma,

Nikhil Sharma, Eklavya Dwivedi, Shantanu Sagar, Anukul Raj, Ankit

Mishra, Harmeet Singh Ruprah, Abhinav Shrivastava, Manu Yadav,

Himanshu Tyagi, Kumar Ayush, Ronak Chaturavedi, Ram Kaushik,

Syed Mohd Fazal, Archit Mandhyan, Raman Yadav, Prabhat Ranjan Raj,

Sidharth Sarthi, Anil Kumar, Gunjesh Ranjan, Animesh Tripathi, Anant

Prakash, Mrs. Kanupriya Mishra, Amit Kumar Singh, Salil Srivastava,

Shaurya Vardhan Singh, Ankit Dwivedi, Mrs. Mukti Chowdhary,

Gyanendra Kumar, Mrs. Vijaya Singh, Shashwat Anand, Apoorv Mishra,

Shashank Shukla, Ashutosh Thakur, Vaibhav Jain, Rituvendra Singh,

Aniruddh Kumar, Rajrshi Gupta, Imran Ullah, Tarun Agarwal, Ankit

Saran, Namit Srivastava, Rakesh Dubey, Swetashwa Agarwal, Javed

H Khan, Praval Tripathi, Shariq Ahmed, Satwik Misra, Ishit Saharia,

Ashish Singh, Amit Singh, Sanjay Kumar Singh, Piyush Kumar, Paritosh

Kumar Singh, Pai Amit, N. Ashwani Kumar, Ms. Pankhuri Bhardwaj, Ms.

Bhavana Duhoon, Ms. Ranu Purohit, Abhiyudaya Vats, Ms. Vanshika

Dubey, Kushal Dube, Tathagata Dutta, P. Ashok, Advs. for the Appellant.

Tushar Mehta, SG, Ajay Kumar Misra, Adv. Gen/Sr. Adv., Vijay

Hansaria, Sr. Adv., Tanmaya Agarwal, Wrick Chatterjee, Mrs. Aditi 

[2024] 2 S.C.R. 955

High Court Bar Association, Allahabad v. State of U.P. & Ors.

Agarwal, Vinayak Mohan, Mahfooz Ahsan Nazki, Polanki Gowtham,

Ms. Rajeswari Mukherjee, K.V. Girish Chowdary, T. Vijaya Bhaskar

Reddy, Ms. Archita Nigam, Meeran Maqbool, Ms. Ruchi Guasain,

Fuzail Ahmad Ayyubi, Ibad Mushtaq, Ms. Akanksha Rai, Ms. Anasuya

Choudhury, Ms. Kavya Jhawar, Gaurav Mehrotra, Talha Abdul

Rahman, Nadeem Murtaza, Akber Ahmed, Abhinit Jaiswal, Harsh

Vardhan Mehrotra, Ms. Maria Fatima, Ms. Alina Masoodi, M. Shaz

Khan, Adnan Yousuf Bhat, Ms. Anasuya Chaudhoury, Advs. for the

Respondents.

Judgment / Order of the Supreme Court

Judgment

Abhay S. Oka, J.

Table of Contents*

A. FACTUAL BACKGROUND .............................................. 2

I. Directions in Asian Resurfacing ................................ 2

II. Order of reference to Larger Bench .......................... 7

B. SUBMISSIONS ...................................................................... 8

C. ANALYSIS ............................................................................14

I. Object of passing interim orders ............................. 14

II. High Court’s power to vacate or modify interim

relief..............................................................................16

III. Whether an interim order can come to an end

automatically only due to the lapse of time ........... 17

IV. Scope of exercise of powers under Article 142 of the

Constitution ................................................................ 21

V. Position of High Courts and its power of

superintendence ......................................................29

VI. Whether the Court should deal with an issue not arising

for consideration ....................................................... 32

VII. Clause (3) of Article 226 of the Constitution .......... 33

VIII. Directions issued by the constitutional Courts to

decide pending cases in a time-bound manner .....34

* Ed Note : Pagination as per original judgment.

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IX. Procedure to be adopted by High Courts while passing

interim order of stay of proceedings and for dealing

with the applications for vacating interim stay ......43

D. CONCLUSIONS ...................................................................44

A. FACTUAL BACKGROUND

By the order dated 1st December 2023, a Bench of three Hon’ble

Judges of this Court expressed a view that a decision of this Court

in the case of Asian Resurfacing of Road Agency Private Limited

& Anr. v. Central Bureau of Investigation1

 requires reconsideration

by a larger Bench.

I. Directions in Asian Resurfacing

1. In Asian Resurfacing1

, this Court dealt with the scope of interference

by the High Court with an order of framing charge passed by the

Special Judge under the provisions of the Prevention of Corruption

Act, 1988 (for short, ‘the PC Act’). The issue was whether an order

of framing charge was an interlocutory order. The High Court held

that an order of framing charge under the PC Act was interlocutory.

A Bench of two Hon’ble Judges of this Court, by the order dated 9th

September 2013, referred the case to a larger Bench to consider the

issue of whether the case of Mohan Lal Magan Lal Thacker v. State

of Gujarat2 was correctly decided. A Bench of three Hon’ble Judges

held that the order of framing charge was neither an interlocutory nor

a final order. Therefore, it was held that the High Court has jurisdiction

in appropriate cases to consider a challenge to an order of framing

charge. Furthermore, the High Court has jurisdiction to grant a stay

of the trial proceedings. Thereafter, it proceeded to consider in which

cases a stay of the proceedings ought to be granted. The Bench

considered the question in the context of a criminal trial, particularly

under the PC Act. In paragraphs 30 and 31, the Bench observed thus:

“30. It is well accepted that delay in a criminal trial,

particularly in the PC Act cases, has deleterious effect

on the administration of justice in which the society has a

1 [2018] 2 SCR 1045 : (2018) 16 SCC 299

2 [1968] 2 SCR 685 : AIR 1968 SC 733

[2024] 2 S.C.R. 957

High Court Bar Association, Allahabad v. State of U.P. & Ors.

vital interest. 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

an incentive to delay. The order granting stay must show

application of mind. The power to grant stay is coupled

with accountability. [Siliguri Municipality v. Amalendu Das,

(1984) 2 SCC 436, para 4 : 1984 SCC (Tax) 133; CCE

v. Dunlop India Ltd., (1985) 1 SCC 260, para 5 : 1985

SCC (Tax) 75; State (UT of Pondicherry) v. P.V. Suresh,

(1994) 2 SCC 70, para 15 and State of W.B. v. Calcutta

Hardware Stores, (1986) 2 SCC 203, para 5]

31. 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. Once

stay is granted, proceedings should not be adjourned,

and concluded within two-three months.”

(Emphasis added)

2. We have been called upon to decide the correctness of the view

taken in paragraphs 36 and 37 of the said decision, which read thus:

“36. In view of the 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 

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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 finalised. 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.

37. Thus, we declare the law to be that order framing

charge is not purely an interlocutory order nor a final order.

Jurisdiction of the High Court is not barred irrespective of

the label of a petition, be it under Sections 397 or 482

CrPC or Article 227 of the Constitution. However, the said

jurisdiction is to be exercised consistent with the legislative

policy to ensure expeditious disposal of a trial without the

same being in any manner hampered. Thus considered,

the challenge to an order of charge should be entertained

in a rarest of rare case only to correct a patent error of

jurisdiction and not to reappreciate the matter. Even where

such challenge is entertained and stay is granted,

the matter must be decided on day-to-day basis so

that stay does not operate for an unduly long period.

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

the 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 the above parameters.

Same course may also be adopted by civil and criminal 

[2024] 2 S.C.R. 959

High Court Bar Association, Allahabad v. State of U.P. & Ors.

appellate/Revisional Courts under the jurisdiction of the

High Courts. The trial courts may, on expiry of the above

period, resume the proceedings without waiting for any

other intimation unless express order extending stay is

produced.”

(Emphasis added)

3. A Miscellaneous Application was filed in the decided case, in light of

the order passed on 4th December 2019 by the Learned Additional

Chief Judicial Magistrate, Pune. When the learned Magistrate was

called upon to proceed with the trial on the ground of automatic

vacation of stay after the expiry of a period of six months, the

learned Magistrate expressed a view that when the jurisdictional

High Court had passed an order of stay, a Court subordinate to the

High Court cannot pass any order contrary to the order of stay. By

the order dated 15th October 2020, this Court held that when the

stay granted by the High Court automatically expires, unless an

extension is granted for good reasons, the Trial Court, on expiry of

a period of six months, must set a date for trial and go ahead with

the same. Later, an attempt was made to seek clarification of the

law laid down in the case of Asian Resurfacing1

. This Court, by

the order dated 25th April 2022, did not apply the direction issued

in Asian Resurfacing1 to the facts of the case before it. An attempt

was made to apply the directions to an order of stay of the order

of the learned Single Judge of the High Court passed by a Division

Bench in a Letters Patent Appeal.

II. Order of reference to Larger Bench

4. In the order of reference dated 1st December 2023, in paragraph 10,

this Court observed thus:

“10. We have reservations in regard to the correctness

of the broad formulations of principle in the above terms.

There can be no gainsaying the fact that a stay of an

indefinite nature results in prolonging civil or criminal

proceedings, as the case may be, unduly. At the same

time, it needs to be factored in that the delay is not always

on account of conduct of the parties involved. The delay

may also be occasioned by the inability of the Court to

take up proceedings expeditiously. The principle which 

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has been laid down in the above decision to the effect

that the stay shall automatically stand vacated (which

would mean an automatic vacation of stay without

application of judicial mind to whether the stay should

or should not be extended further) is liable to result

in a serious miscarriage of justice.”

(Emphasis added)

5. We are called upon to decide the following questions: -

(a) Whether this Court, in the exercise of its jurisdiction under Article

142 of the Constitution of India, can order automatic vacation

of all interim orders of the High Courts of staying proceedings

of Civil and Criminal cases on the expiry of a certain period?

(b) Whether this Court, in the exercise of its jurisdiction under

Article 142 of the Constitution of India, can direct the High

Courts to decide pending cases in which interim orders of stay

of proceedings has been granted on a day-to-day basis and

within a fixed period?

B. SUBMISSIONS

6. The main submissions were canvassed by Shri Rakesh Dwivedi, the

learned senior counsel appearing on behalf of the appellant in Criminal

Appeal no.3589 of 2023. We are summarising the submissions of

Shri Rakesh Dwivedi as follows:

a. Automatic Vacation of the interim order is in the nature of judicial

legislation. This Court cannot engage in judicial legislation;

b. Article 226 is a part of the basic structure of the Constitution of

India, and it can neither be shut out nor whittled down by the

exercise of powers under Articles 141 and 142;

c. The High Court is also a constitutional Court which is not

judicially subordinate to this Court;

d. An order granting interim relief cannot be passed without an

application of judicial mind. Application of mind is a pre-requisite

of judicial decision making. The absence of application of mind

would render a decision arbitrary. Similarly, an order vacating

interim relief cannot be passed without the application of judicial

mind;

[2024] 2 S.C.R. 961

High Court Bar Association, Allahabad v. State of U.P. & Ors.

e. If an interim order is to be passed, it should be initially for a

short period so that there is an effective opportunity for the

respondent to contest the same;

f. Two Constitution Benches in the cases of Abdul Rehman

Antulay & Ors. v. R.S. Nayak & Anr.3 and P. Ramachandra

Rao v. State of Karnataka4 held that it is not permissible for

this Court to fix the time limit for completion of a trial;

g. No such directions could have been issued in the exercise of

the jurisdiction of this Court under Article 142 of the Constitution

of India;

h. Even under Article 226 (3) of the Constitution, an interim order

cannot be automatically vacated unless a specific application

is made for vacating the interim order;

i. A provision of automatic vacation of the Appellate Tribunal’s stay

order was incorporated in Section 254 (2A) of the Income Tax

Act, 1961 (for short, ‘the IT Act’). It provided that if an appeal

preferred before the Appellate Tribunal was not disposed of

within 365 days, the stay shall stand vacated even if the delay

in disposing of the appeal is not attributable to the assessee.

This court struck down the provision in the case of Deputy

Commissioner of Income Tax & Anr. v. Pepsi Foods Limited5

on the ground that it was manifestly arbitrary; and

j. The automatic vacation of interim relief is unjust, unfair and

unreasonable.

7. Shri Tushar Mehta, the learned Solicitor General appearing for the

State of Uttar Pradesh, supported the submissions of Shri Dwivedi.

In addition, he submitted that:

a. As held by the Constitution Bench in the case of Raza Buland

Sugar Co. Ltd. v. Municipal Board, Rampur6

, laws of procedure

are grounded in principles of natural justice, which require that

no decision can be reached behind the back of a person and

in his absence;

3 [1991] Suppl. 3 SCR 325 : (1992) 1 SCC 225

4 [2002] 3 SCR 60 : (2002) 4 SCC 578

5 [2021] 4 SCR 1 : (2021) 7 SCC 413

6 [1965] 1 SCR 970 : AIR 1965 SC 895

962 [2024] 2 S.C.R.

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b. If the condition imposed by a provision of law to do a certain

thing within a time frame is upon the institution and the

consequences of that institution failing to comply with the

condition are to fall upon someone who has no control over

the institution, the provision of law will have to be construed

as directory;

c. An interim relief order is always granted after considering the

three factors: prima facie case, the balance of convenience

and irreparable injury to the aggrieved party. Once a finding

is recorded regarding the entitlement of the appellant/

applicant to get the order of stay, the order does not become

automatically bad on the ground that it has lived for six

months; and

d. In the decision of this Court in Kailash v. Nanhku & Ors7

, it

has been held that the process of justice may be speeded up

and hurried, but fairness, which is the basic element of justice,

cannot be permitted to be buried. The discretion conferred upon

the High Court cannot be taken away by exercising power under

Article 142 of the Constitution of India.

8. Shri Gaurav Mehrotra, the learned counsel appearing for the applicant

in I.A. no.252872 of 2023 in Criminal Appeal no.3589 of 2023, in

addition to the aforesaid submissions, relied upon a decision of the

Constitution Bench in the case of Sanjeev Coke Manufacturing

Company v. M/s. Bharat Coking Coal Ltd. & Anr8

, to contend that

the Court should not decide any important question without there

being a proper lis.

9. Shri Vijay Hansaria, the learned senior counsel appearing for the

Gauhati High Court Bar Association, made the following submissions:

a. As regards the interpretation of clause (3) of Article 226 of the

Constitution of India, various High Courts have taken different

views on the issue of whether the provision for automatic

vacation of stay is mandatory or directory. He urged that the

provision will have to be held as a directory;

7 [2005] 3 SCR 289 : (2005) 4 SCC 480

8 [1983] 1 SCR 1000 : (1983) 1 SCC 147

[2024] 2 S.C.R. 963

High Court Bar Association, Allahabad v. State of U.P. & Ors.

b. In Asian Resurfacing1

, the Court was dealing with a petition

filed in the High Court arising from a prosecution under the PC

Act. The cases of other categories were not the subject matter

of challenge before this Court;

c. The power under Article 142 of the Constitution of India can

be exercised for doing complete justice in any case or matter

pending before it. The issue of the duration of the order of stay

did not arise in the case of Asian Resurfacing1

; and

d. A successful litigant whose application for stay is allowed by

the High Court cannot be prejudiced only on the ground that

the High Court does not hear the main case within six months

for reasons beyond the control of the said litigant.

10. Shri Amit Pai, the learned counsel appearing for the appellant in one

of the appeals, while adopting the submissions, relied upon a decision

of this Court in the case of Deoraj v. State of Maharashtra & Ors.9

and contended that recourse is taken to the order of grant of interim

relief as the conclusion of hearing on merits is likely to take some

time. He submitted that the said object has not been considered in

Asian Resurfacing1

. He urged that passing an interim order of stay

is a judicial act. Therefore, such an order must be vacated only by

a judicial act.

11. Prof (Dr) Pankaj K Phadnis, representing the intervenor – Abhinav

Bharat Congress, has filed written submissions. He has contended that

he was not permitted to join the hearing through video conferencing.

He has come out with the draft of Supreme Court Rules, 2024. His

submissions, based on the draft, are entirely irrelevant.

C. ANALYSIS

12. We have no manner of doubt that the direction issued in paragraph

36 of Asian Resurfacing1 regarding automatic vacation of stay

has been issued in the exercise of the jurisdiction of this Court

under Article 142 of the Constitution of India. Even the direction in

paragraph 37 of conducting day-to-day hearing has been issued

in exercise of the same jurisdiction. The effect of the direction

issued in paragraph 36 is that the interim order of stay granted

9 [2004] 3 SCR 920 : (2004) 4 SCC 697

964 [2024] 2 S.C.R.

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in favour of a litigant stands vacated without even giving him an

opportunity of being heard, though there may not be any default

on his part.

I. Object of passing interim orders

13. Before we examine the questions, we need to advert to the object

of passing orders of interim relief pending the final disposal of the

main case. The reason is that the object of passing interim order

has not been considered while deciding Asian Resurfacing1

. An

order of interim relief is usually granted in the aid of the final relief

sought in the case. An occasion for passing an order of stay of

the proceedings normally arises when the High Court is dealing

with a challenge to an interim or interlocutory order passed during

the pendency of the main case before a trial or appellate Court.

The High Court can grant relief of the stay of hearing of the main

proceedings on being satisfied that a prima facie case is made out

and that the failure to stay the proceedings before the concerned

Court in all probability may render the remedy adopted infructuous.

When the High Court passes an interim order of stay, though the

interim order may not expressly say so, the three factors, viz; prima

facie case, irreparable loss, and balance of convenience, are always

in the back of the judges’ minds. Though interim orders of stay of

proceedings cannot be routinely passed as a matter of course, it

cannot be said that such orders can be passed only in exceptional

cases. Nevertheless, the High Courts, while passing orders of stay in

serious cases like the offences under the PC Act or serious offences

against women and children, must be more cautious and circumspect.

An occasion for passing an order of stay of proceeding arises as it is

not possible for the High Court to take up the case for final hearing

immediately. While entertaining a challenge to an order passed in

a pending case, if the pending case is not stayed, the trial or the

appellate Court may decide the pending case, rendering the remedy

before the High Court ineffective. Such a situation often leads to the

passing of an order of remand. In our legal system, which is facing

a docket explosion, an order of remand should be made only as a

last resort. The orders of remand not only result in more delays but

also increase the cost of litigation. Therefore, to avoid the possibility

of passing an order of remand, the grant of stay of proceedings is

called for in many cases.

[2024] 2 S.C.R. 965

High Court Bar Association, Allahabad v. State of U.P. & Ors.

II. High Court’s power to vacate or modify interim relief

14. When a High Court grants a stay of the proceedings while issuing

notice without giving an opportunity of being heard to the contesting

parties, it is not an interim order, but it is an ad-interim order of

stay. It can be converted into an interim order of stay only after an

opportunity of being heard is granted on the prayer for interim relief

to all the parties to the proceedings. Ad-interim orders, by their very

nature, should be of a limited duration. Therefore, such orders do

not pose any problem.

15. The High Courts are always empowered to vacate or modify an order

of interim relief passed after hearing the parties on the following,

amongst other grounds: -

(a) If a litigant, after getting an order of stay, deliberately prolongs

the proceedings either by seeking adjournments on unwarranted

grounds or by remaining absent when the main case in which

interim relief is granted is called out for hearing before the

High Court with the object of taking undue advantage of the

order of stay;

(b) The High Court finds that the order of interim relief is granted as

a result of either suppression or misrepresentation of material

facts by the party in whose favour the interim order of stay has

been made; and

(c) The High Court finds that there is a material change in

circumstances requiring interference with the interim order

passed earlier. In a given case, a long passage of time may

bring about a material change in circumstances.

These grounds are not exhaustive. There can be other valid grounds

for vacating an order of stay.

III. Whether an Interim Order can come to an end automatically

only due to the lapse of time

16. Interim order of stay can come to an end: -

(a) By disposal of the main case by the High Court, in which the

interim order has been passed. The disposal can be either on

merits or for default or other reasons such as the abatement

of the case; or

966 [2024] 2 S.C.R.

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(b) by a judicial order vacating interim relief, passed after hearing

the contesting parties on the available grounds, some of which

we have already referred to by way of illustration.

Elementary principles of natural justice, which are well recognised in

our jurisprudence, mandate that an order of vacating interim relief or

modification of the interim relief is passed only after hearing all the

affected parties. An order of vacating interim relief passed without

hearing the beneficiary of the order is against the basic tenets of

justice. Application of mind is an essential part of any decision-making

process. Therefore, without application of mind, an order of interim

stay cannot be vacated only on the ground of lapse of time when

the litigant is not responsible for the delay. An interim order lawfully

passed by a Court after hearing all contesting parties is not rendered

illegal only due to the long passage of time. Moreover, the directions

issued in Asian Resurfacing1 regarding automatic vacation of interim

orders of stay passed by all High Courts are applicable, irrespective

of the merits of individual cases. If a High Court concludes after

hearing all the concerned parties that a case was made out for the

grant of stay of proceedings of a civil or criminal case, the order of

stay cannot stand automatically set aside on expiry of the period of

six months only on the ground that the High Court could not hear

the main case. If such an approach is adopted, it will be completely

contrary to the concept of fairness. If an interim order is automatically

vacated without any fault on the part of the litigant only because

the High Court cannot hear the main case, the maxim “actus curiae

neminem gravabit” will apply. No litigant should be allowed to suffer

due to the fault of the Court. If that happens, it is the bounden duty

of the Court to rectify its mistake.

17. In the subsequent clarification in the case of Asian Resurfacing1

,

a direction has been issued to the Trial Courts to immediately fix a

date for hearing after the expiry of the period of six months without

waiting for any formal order of vacating stay passed by the High

Court. This gives an unfair advantage to the respondent in the case

before the High Court. Moreover, it adversely affects a litigant’s

right to the remedies under Articles 226 and 227 of the Constitution

of India. Such orders virtually defeat the right of a litigant to seek

and avail of statutory remedies such as revisions, appeals, and

applications under Section 482 of the Code of Criminal Procedure, 

[2024] 2 S.C.R. 967

High Court Bar Association, Allahabad v. State of U.P. & Ors.

1973 (for short, ‘Cr. PC’) as well as the remedies under the Code

of Civil Procedure, 1908 (for short, ‘CPC’). All interim orders of stay

passed by all High Courts cannot be set at naught by a stroke of

pen only on the ground of lapse of time.

18. The legislature attempted to provide for an automatic vacation of

stay granted by the Income Tax Appellate Tribunal by introducing the

third proviso to Section 254 (2A) of the IT Act. It provided that if an

appeal in which the stay was granted was not heard within a period

of 365 days, it would amount to the automatic vacation of stay. In

the case of Pepsi Foods Limited5

, this Court held that a provision

automatically vacating a stay was manifestly arbitrary and, therefore,

violative of Article 14 of the Constitution of India. Paragraphs 20 and

22 of the said decision read thus:

“20. Judged by both these parameters, there can be

no doubt that the third proviso to Section 254(2-A) of

the Income Tax Act, introduced by the Finance Act,

2008, would be both arbitrary and discriminatory and,

therefore, liable to be struck down as offending Article

14 of the Constitution of India. First and foremost, as

has correctly been held in the impugned judgment,

unequals are treated equally in that no differentiation

is made by the third proviso between the assessees

who are responsible for delaying the proceedings and

assessees who are not so responsible. This is a little

peculiar in that the legislature itself has made the aforesaid

differentiation in the second proviso to Section 254(2-A) of

the Income Tax Act, making it clear that a stay order may

be extended up to a period of 365 days upon satisfaction

that the delay in disposing of the appeal is not attributable

to the assessee. We have already seen as to how, as

correctly held by Narang Overseas [Narang Overseas (P)

Ltd. v. Income Tax Appellate Tribunal, 2007 SCC OnLine

Bom 671 : (2007) 295 ITR 22] , the second proviso was

introduced by the Finance Act, 2007 to mitigate the rigour

of the first proviso to Section 254(2-A) of the Income Tax

Act in its previous avatar. Ordinarily, the Appellate Tribunal,

where possible, is to hear and decide appeals within a

period of four years from the end of the financial year in

which such appeal is filed. It is only when a stay of the 

968 [2024] 2 S.C.R.

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impugned order before the Appellate Tribunal is granted,

that the appeal is required to be disposed of within 365

days. So far as the disposal of an appeal by the Appellate

Tribunal is concerned, this is a directory provision. However,

so far as vacation of stay on expiry of the said period is

concerned, this condition becomes mandatory so far as

the assessee is concerned.”

21. .. .. .. .. .. .. .. .. .. ..

22. Since the object of the third proviso to Section

254(2-A) of the Income Tax Act is the automatic vacation

of a stay that has been granted on the completion of

365 days, whether or not the assessee is responsible

for the delay caused in hearing the appeal, such object

being itself discriminatory, in the sense pointed out

above, is liable to be struck down as violating Article

14 of the Constitution of India. Also, the said proviso

would result in the automatic vacation of a stay upon

the expiry of 365 days even if the Appellate Tribunal

could not take up the appeal in time for no fault of

the assessee. Further, the vacation of stay in favour

of the Revenue would ensue even if the Revenue is

itself responsible for the delay in hearing the appeal. In

this sense, the said proviso is also manifestly arbitrary

being a provision which is capricious, irrational and

disproportionate so far as the assessee is concerned.”

(Emphasis added)

Therefore, even if the legislature were to come out with such a

provision for automatic vacation of stay, the same may not stand

judicial scrutiny as it may suffer from manifest arbitrariness.

IV. Scope of exercise of powers under Article 142 of the

Constitution

19. The directions issued in Asian Resurfacing1

 are obviously issued

in the exercise of jurisdiction of this Court under Article 142 of the

Constitution, which confers jurisdiction on this Court to pass such

a decree or make such order necessary for doing complete justice

in any case or matter pending before it. In Asian Resurfacing1

,

the first issue was, whether an order framing of charge in a case 

[2024] 2 S.C.R. 969

High Court Bar Association, Allahabad v. State of U.P. & Ors.

under the PC Act was in the nature of an interlocutory order. The

second question was of the scope of powers of the High Court to

stay proceedings of the trial under the PC Act while entertaining a

challenge to an order of framing charge. The question regarding the

duration of the interim orders passed by the High Courts in various

other proceedings did not specifically arise for consideration in the

case of Asian Resurfacing1

. The provisions of Article 142 of the

Constitution of India are meant to further the cause of justice and

to secure complete justice. The directions in the exercise of power

under Article 142 cannot be issued to defeat justice. The jurisdiction

under Article 142 cannot be invoked to pass blanket orders setting at

naught a very large number of interim orders lawfully passed by all

the High Courts, and that too, without hearing the contesting parties.

The jurisdiction under Article 142 can be invoked only to deal with

extraordinary situations for doing complete justice between the parties

before the Court.

20. While dealing with the scope of power under Article 142, a Constitution

Bench of this Court in the case of Prem Chand Garg & Anr. v. The

Excise Commissioner, U.P. and Ors.10, in paragraphs 12 and 13

held thus:

“12. Basing himself on this decision, the Solicitor-General

argues that the power conferred on this Court under

Article 142(1) is comparable to the privileges claimed by

the members of the State Legislatures under the latter

part of Article 194(3), and so, there can be no question of

striking down an order passed by this Court under Article

142(1) on the ground that it is inconsistent with Article 32. It

would be noticed that this argument proceeds on the basis

that the order for security infringes the fundamental right

guaranteed by Article 32 and it suggests that under Article

142(1) this Court has jurisdiction to pass such an order. In

our opinion, the argument thus presented is misconceived.

In this connection, it is necessary to appreciate the actual

decision in the case of Sharma [(1959) 1 SCR 806 at

859-860] and its effect. The actual decision was that the

rights claimable under the latter part of Article 194(3) were

10 [1963] Supp. 1 S.C.R. 885 : 1962 SCC Online SC 37

970 [2024] 2 S.C.R.

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not subject to Article 19(1)(a), because the said rights had

been expressly provided for by a constitutional provision

viz. Article 194(3), and it would be impossible to hold that

one part of the Constitution is inconsistent with another

part. The position would, however, be entirely different if

the State Legislature was to pass a law in regard to the

privileges of its members. Such a law would obviously

have to be consistent with Article 19(1)(a). If any of the

provisions of such a law were to contravene any of the

fundamental rights guaranteed by Part III, they would be

struck down as being unconstitutional. Similarly, there can

be no doubt that if in respect of petitions under Article 32

a law is made by Parliament as contemplated by Article

145(1), and such a law, in substance, corresponds to the

provisions of Order 25 Rule 1 or Order 41 Rule 10, it would

be struck down on the ground that it purports to restrict the

fundamental right guaranteed by Article 32. The position

of an order made either under the rules framed by this

Court or under the jurisdiction of this Court under Article

142(1) can be no different. If this aspect of the matter is

borne in mind, there would be no difficulty in rejecting the

Solicitor-General’s argument based on Article 142(1). The

powers of this Court are no doubt very wide and they

are intended to be and will always be exercised in the

interest of justice. But that is not to say that an order

can be made by this Court which is inconsistent with

the fundamental rights guaranteed by Part III of the

Constitution. An order which this Court can make in

order to do complete justice between the parties, must

not only be consistent with the fundamental rights

guaranteed by the Constitution, but it cannot even be

inconsistent with the substantive provisions of the

relevant statutory laws. Therefore, we do not think it

would be possible to hold that Article 142(1) confers upon

this Court powers which can contravene the provisions of

Article 32.

13. In this connection, it may be pertinent to point out

that the wide powers which are given to this Court for

doing complete justice between the parties, can be 

[2024] 2 S.C.R. 971

High Court Bar Association, Allahabad v. State of U.P. & Ors.

used by this Court, for instance, in adding parties to the

proceedings pending before it, or in admitting additional

evidence, or in remanding the case, or in allowing a new

point to be taken for the first time. It is plain that in

exercising these and similar other powers, this Court

would not be bound by the relevant provisions of

procedure if it is satisfied that a departure from the

said procedure is necessary to do complete justice

between the parties.”

(Emphasis added)

21. Another Constitution Bench in the case of Supreme Court Bar

Association v. Union of India & Anr.11, in paragraphs 47 and 48,

held thus:

“47. The plenary powers of this Court under Article 142

of the Constitution are inherent in the Court and are

complementary to those powers which are specifically

conferred on the Court by various statutes though are

not limited by those statutes. These powers also exist

independent of the statutes with a view to do complete

justice between the parties. These powers are of very wide

amplitude and are in the nature of supplementary powers.

This power exists as a separate and independent basis

of jurisdiction apart from the statutes. It stands upon the

foundation and the basis for its exercise may be put on a

different and perhaps even wider footing, to prevent injustice

in the process of litigation and to do complete justice

between the parties. This plenary jurisdiction is, thus,

the residual source of power which this Court may draw

upon as necessary whenever it is just and equitable to

do so and in particular to ensure the observance of the

due process of law, to do complete justice between the

parties, while administering justice according to law.

There is no doubt that it is an indispensable adjunct to all

other powers and is free from the restraint of jurisdiction

and operates as a valuable weapon in the hands of the

Court to prevent “clogging or obstruction of the stream of

11 [1998] 2 SCR 795 : (1998) 4 SCC 409

972 [2024] 2 S.C.R.

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justice”. It, however, needs to be remembered that the

powers conferred on the Court by Article 142 being

curative in nature cannot be construed as powers which

authorise the Court to ignore the substantive rights of

a litigant while dealing with a cause pending before it.

This power cannot be used to “supplant” substantive law

applicable to the case or cause under consideration of the

Court. Article 142, even with the width of its amplitude,

cannot be used to build a new edifice where none

existed earlier, by ignoring express statutory provisions

dealing with a subject and thereby to achieve something

indirectly which cannot be achieved directly. Punishing

a contemner advocate, while dealing with a contempt of

court case by suspending his licence to practice, a power

otherwise statutorily available only to the Bar Council of

India, on the ground that the contemner is also an advocate,

is, therefore, not permissible in exercise of the jurisdiction

under Article 142. The construction of Article 142 must be

functionally informed by the salutary purposes of the article,

viz., to do complete justice between the parties. It cannot

be otherwise. As already noticed in a case of contempt of

court, the contemner and the court cannot be said to be

litigating parties.

48. The Supreme Court in exercise of its jurisdiction

under Article 142 has the power to make such order as

is necessary for doing complete justice “between the

parties in any cause or matter pending before it”. The

very nature of the power must lead the Court to set

limits for itself within which to exercise those powers

and ordinarily it cannot disregard a statutory provision

governing a subject, except perhaps to balance the

equities between the conflicting claims of the litigating

parties by “ironing out the creases” in a cause or matter

before it. Indeed this Court is not a court of restricted

jurisdiction of only dispute-settling. It is well recognised and

established that this Court has always been a law-maker

and its role travels beyond merely dispute-settling. It is a

“problem-solver in the nebulous areas” (see K. Veeraswami

v. Union of India [(1991) 3 SCC 655 : 1991 SCC (Cri) 734] 

[2024] 2 S.C.R. 973

High Court Bar Association, Allahabad v. State of U.P. & Ors.

but the substantive statutory provisions dealing with the

subject-matter of a given case cannot be altogether ignored

by this Court, while making an order under Article 142.

Indeed, these constitutional powers cannot, in any way,

be controlled by any statutory provisions but at the same

time these powers are not meant to be exercised when

their exercise may come directly in conflict with what has

been expressly provided for in a statute dealing expressly

with the subject.”

(Emphasis added)

22. It is very difficult to exhaustively lay down the parameters for the

exercise of powers under Article 142 of the Constitution of India

due to the very nature of such powers. However, a few important

parameters which are relevant to the issues involved in the reference

are as follows:-

(i) The jurisdiction can be exercised to do complete justice between

the parties before the Court. It cannot be exercised to nullify the

benefits derived by a large number of litigants based on judicial

orders validly passed in their favour who are not parties to the

proceedings before this Court;

(ii) Article 142 does not empower this Court to ignore the substantive

rights of the litigants; and

(iii) While exercising the jurisdiction under Article 142 of the

Constitution of India, this Court can always issue procedural

directions to the Courts for streamlining procedural aspects

and ironing out the creases in the procedural laws to ensure

expeditious and timely disposal of cases. This is because, while

exercising the jurisdiction under Article 142, this Court may not

be bound by procedural requirements of law. However, while

doing so, this Court cannot affect the substantive rights of those

litigants who are not parties to the case before it. The right to

be heard before an adverse order is passed is not a matter of

procedure but a substantive right.

(iv) The power of this Court under Article 142 cannot be exercised

to defeat the principles of natural justice, which are an integral

part of our jurisprudence.

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V. Position of the High Courts and its power of superintendence

23. A High Court is also a constitutional Court. It is well settled that it is

not judicially subordinate to this Court. In the case of Tirupati Balaji

Developers (P) Ltd. & Ors. v. State of Bihar & Ors.12, this Court

has explained the position of the High Courts vis-à-vis this Court. In

paragraph 8, this Court observed thus:

“8. Under the constitutional scheme as framed for

the judiciary, the Supreme Court and the High Courts,

both are courts of record. The High Court is not a

court “subordinate” to the Supreme Court. In a way

the canvas of judicial powers vesting in the High Court is

wider inasmuch as it has jurisdiction to issue all prerogative

writs conferred by Article 226 of the Constitution for the

enforcement of any of the rights conferred by Part III of the

Constitution and for any other purpose while the original

jurisdiction of the Supreme Court to issue prerogative writs

remains confined to the enforcement of fundamental rights

and to deal with some such matters, such as Presidential

elections or inter-State disputes which the Constitution does

not envisage being heard and determined by High Courts.

The High Court exercises power of superintendence

under Article 227 of the Constitution over all subordinate

courts and tribunals; the Supreme Court has not been

conferred with any power of superintendence. If the

Supreme Court and the High Courts both were to be

thought of as brothers in the administration of justice,

the High Court has larger jurisdiction but the Supreme

Court still remains the elder brother. There are a few

provisions which give an edge, and assign a superior place

in the hierarchy, to the Supreme Court over High Courts.

So far as the appellate jurisdiction is concerned, in all civil

and criminal matters, the Supreme Court is the highest and

the ultimate court of appeal. It is the final interpreter of the

law. Under Article 139-A, the Supreme Court may transfer

any case pending before one High Court to another High

Court or may withdraw the case to itself. Under Article 141

12 [2004] Supp. 1 SCR 494 : (2004) 5 SCC 1

[2024] 2 S.C.R. 975

High Court Bar Association, Allahabad v. State of U.P. & Ors.

the law declared by the Supreme Court shall be binding

on all courts, including High Courts, within the territory of

India. Under Article 144 all authorities, civil and judicial, in

the territory of India — and that would include High Courts

as well — shall act in aid of the Supreme Court.”

(Emphasis added)

A High Court is constitutionally independent of the Supreme Court of

India and is not subordinate to this Court. This Court has dealt with

the issue of jurisdiction of the High Courts in the case of L. Chandra

Kumar v. Union of India & Ors13. The relevant part of paragraph 78

and paragraph 79 read thus:

“78. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. We, therefore,

hold that the power of judicial review over legislative

action vested in the High Courts under Article 226 and

in this Court under Article 32 of the Constitution is

an integral and essential feature of the Constitution,

constituting part of its basic structure. Ordinarily,

therefore, the power of High Courts and the Supreme

Court to test the constitutional validity of legislations

can never be ousted or excluded.

79. We also hold that the power vested in the High

Courts to exercise judicial superintendence over

the decisions of all courts and tribunals within their

respective jurisdictions is also part of the basic

structure of the Constitution. This is because a situation

where the High Courts are divested of all other judicial

functions apart from that of constitutional interpretation, is

equally to be avoided.”

(Emphasis added)

24. The power of the High Court under Article 227 of the Constitution to

have judicial superintendence over all the Courts within its jurisdiction

will include the power to stay the proceedings before such Courts. By

a blanket direction in the exercise of power under Article 142 of the

Constitution of India, this Court cannot interfere with the jurisdiction

13 [1997] 2 SCR 1186 : (1997) 3 SCC 261

976 [2024] 2 S.C.R.

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conferred on the High Court of granting interim relief by limiting its

jurisdiction to pass interim orders valid only for six months at a time.

Putting such constraints on the power of the High Court will also

amount to making a dent on the jurisdiction of the High Courts under

Article 226 of the Constitution, which is an essential feature that forms

part of the basic structure of the Constitution.

VI. Whether the Court should deal with an issue not arising for

consideration

25. In the case of Sanjeev Coke Manufacturing Company,

8

 a Constitution

Bench of this Court in paragraph 11 held thus:

“11. ..............................................................We have

serious reservations on the question whether it is open to a

court to answer academic or hypothetical questions on such

considerations, particularly so when serious constitutional

issues are involved. We (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.”

(Emphasis added)

In Asian Resurfacing1, there was no lis before this

Court arising out of the orders of stay granted in different

categories of cases pending before the various High Courts.

This Court was dealing with a case under the PC Act. Thus,

an attempt was made to delve into an issue which did not

arise for consideration.

VII. Clause (3) Of Article 226 of the Constitution

26. In this case, it is unnecessary for this Court to decide whether clause

(3) of Article 226 of the Constitution of India is mandatory or directory.

Clause (3) of Article 226 reads thus:

[2024] 2 S.C.R. 977

High Court Bar Association, Allahabad v. State of U.P. & Ors.

“226. Power of High Courts to issue certain writs:

(1) .. .. .. .. .. .. .. .. .. .. .. .. .. ..

(2) .. .. .. .. .. .. .. .. .. .. .. .. .. ..

(3) Where any party against whom an interim order, whether

by way of injunction or stay or in any other manner, is

made on, or in any proceedings relating to, a petition under

clause (1), without—

(a) furnishing to such party copies of such petition and

all documents in support of the plea for such interim

order; and

(b) giving such party an opportunity of being heard,

makes an application to the High Court for the vacation

of such order and furnishes a copy of such application to

the party in whose favour such order has been made or

the counsel of such party, the High Court shall dispose

of the application within a period of two weeks from the

date on which it is received or from the date on which

the copy of such application is so furnished, whichever is

later, or where the High Court is closed on the last day of

that period, before the expiry of the next day afterwards

on which the High Court is open; and if the application is

not so disposed of, the interim order shall, on the expiry

of that period, or, as the case may be, the expiry of the

said next day, stand vacated.”

On its plain reading, clause (3) is applicable only when an

interim relief is granted without furnishing a copy of the writ

petition along with supporting documents to the opposite

party and without hearing the opposite party. Even assuming

that clause (3) is not directory, it provides for an automatic

vacation of interim relief only if the aggrieved party makes

an application for vacating the interim relief and when the

application for vacating stay is not heard within the time

specified. Clause (3) will not apply when an interim order in

a writ petition under Article 226 is passed after the service of

a copy of the writ petition on all concerned parties and after

giving them an opportunity of being heard. It applies only to

ex-parte ad interim orders.

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VIII. Directions issued by the constitutional Courts to decide

pending cases in a time-bound manner

27. The net effect of the directions issued in paragraphs 36 and

37 of Asian Resurfacing1 is that the petition in which the High

Court has granted a stay of the proceedings of the trial, must be

decided within a maximum period of six months. If it is not decided

within six months, the interim stay will be vacated automatically,

virtually making the pending case infructuous. In fact, in paragraph

37, this Court directed that the challenge to the order of framing

charge should be entertained in a rare case, and when the stay

is granted, the case should be decided by the High Court on a

day-to-day basis so that the stay does not operate for an unduly

long period.

28. The Constitution Benches of this Court have considered the issue

of fixing timelines for the disposal of cases in the cases of Abdul

Rehman Antulay3 and P. Ramachandra Rao4

. In the case of Abdul

Rehman Antulay3

, in paragraph 83, this Court held thus:

“83. But then speedy trial or other expressions conveying

the said concept — are necessarily relative in nature. One

may ask — speedy means, how speedy? How long a delay

is too long? We do not think it is possible to lay down any

time schedules for conclusion of criminal proceedings. The

nature of offence, the number of accused, the number

of witnesses, the workload in the particular court, means

of communication and several other circumstances have

to be kept in mind. For example, take the very case in

which Ranjan Dwivedi (petitioner in Writ Petition No.

268 of 1987) is the accused. 151 witnesses have been

examined by the prosecution over a period of five years.

Examination of some of the witnesses runs into more than

100 typed pages each. The oral evidence adduced by the

prosecution so far runs into, we are told, 4000 pages.

Even though, it was proposed to go on with the case five

days of a week and week after week, it was not possible

for various reasons viz., non-availability of the counsel,

non-availability of accused, interlocutory proceedings

and other systemic delays. A murder case may be a

simple one involving say a dozen witnesses which can 

[2024] 2 S.C.R. 979

High Court Bar Association, Allahabad v. State of U.P. & Ors.

be concluded in a week while another case may involve a

large number of witnesses, and may take several weeks.

Some offences by their very nature e.g., conspiracy cases,

cases of misappropriation, embezzlement, fraud, forgery,

sedition, acquisition of disproportionate assets by public

servants, cases of corruption against high public servants

and high public officials take longer time for investigation

and trial. Then again, the workload in each court, district,

region and State varies. This fact is too well known to merit

illustration at our hands. In many places, requisite number

of courts are not available. In some places, frequent

strikes by members of the bar interferes with the work

schedules. In short, it is not possible in the very nature of

things and present-day circumstances to draw a time-limit

beyond which a criminal proceeding will not be allowed to

go. Even in the USA, the Supreme Court has refused to

draw such a line. Except for the Patna Full Bench decision

under appeal, no other decision of any High Court in this

country taking such a view has been brought to our notice.

Nor, to our knowledge, in United Kingdom. Wherever a

complaint of infringement of right to speedy trial is made

the court has to consider all the circumstances of the case

including those mentioned above and arrive at a decision

whether in fact the proceedings have been pending for

an unjustifiably long period. In many cases, the accused

may himself have been responsible for the delay. In such

cases, he cannot be allowed to take advantage of his

own wrong. In some cases, delays may occur for which

neither the prosecution nor the accused can be blamed

but the system itself. Such delays too cannot be treated

as unjustifiable — broadly speaking. Of course, if it is a

minor offence — not being an economic offence — and

the delay is too long, not caused by the accused, different

considerations may arise. Each case must be left to be

decided on its own facts having regard to the principles

enunciated hereinafter. For all the above reasons, we are

of the opinion that it is neither advisable nor feasible

to draw or prescribe an outer time-limit for conclusion

of all criminal proceedings. It is not necessary to do

so for effectuating the right to speedy trial. We are also 

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not satisfied that without such an outer limit, the right

becomes illusory.”

(Emphasis added)

In paragraph 27 of the decision in the case of P. Ramachandra Rao4

,

this Court observed thus:

“27. 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. Binding directions can be

issued for enforcing the law and appropriate directions may

issue, including laying down of time-limits or chalking out a

calendar for proceedings to follow, to redeem the injustice

done or for taking care of rights violated, in a given case

or set of cases, depending on facts brought to the notice

of the court. This is permissible for the judiciary to do.

But it may not, like the legislature, enact a provision

akin to or on the lines of Chapter XXXVI of the Code

of Criminal Procedure, 1973.”

(Emphasis added)

The principles laid down in the decision will apply even to civil cases

before the trial courts. The same principles will also apply to a

direction issued to the High Courts to decide cases on a day-to-day

basis or within a specific time. Thus, the directions of the Court that

provide for automatic vacation of the order of stay and the disposal

of all cases in which a stay has been granted on a day-to-day basis

virtually amount to judicial legislation. The jurisdiction of this Court

cannot be exercised to make such a judicial legislation. Only the 

[2024] 2 S.C.R. 981

High Court Bar Association, Allahabad v. State of U.P. & Ors.

legislature can provide that cases of a particular category should

be decided within a specific time. There are many statutes which

incorporate such provisions. However, all such provisions are usually

held to be directory.

29. Ideally, the cases in which the stay of proceedings of the civil/criminal

trials is granted should be disposed of expeditiously by the High

Courts. However, we do not live in an ideal world. A judicial notice

will have to be taken of the fact that except High Courts of smaller

strength having jurisdiction over smaller States, each High Court is

flooded with petitions under Article 227 of the Constitution of India for

challenging the interim orders passed in civil and criminal proceedings,

the petitions under Section 482 of the Cr.PC for challenging the

orders passed in the criminal proceedings and petitions filed in the

exercise of revisional jurisdiction under the CPC and the Cr. PC. A

judicial notice will have to be taken of the fact that in all the High

Courts of larger strength having jurisdiction over larger States, the

daily cause lists of individual Benches of the cases of the aforesaid

categories are of more than a hundred matters. Therefore, once a

case is entertained by the High Court and the stay is granted, the

case has a long life.

30. There is a huge filing of regular appeals, both civil and criminal in

High Courts. After all, the High Courts deal with many other important

matters, such as criminal appeals against acquittal and conviction,

bail petitions, writ petitions, and other proceedings that involve the

issues of liberty under Article 21 of the Constitution of India. The High

Courts deal with matrimonial disputes, old appeals against decrees of

civil courts, and appeals against appellate decrees. There are cases

where senior citizens or second or third-generation litigants are parties.

The High Courts cannot be expected to decide, on a priority basis or

a day-to-day basis, only those cases in which a stay of proceedings

has been granted while ignoring several other categories of cases

that may require more priority to be given.

31. The situation in Trial and district Courts is even worse. In 2002,

in the case of All India Judges’ Association & Ors. v. Union of

India & Ors.14, this Court passed an order directing that the judgeto-population ratio within twenty years should be 50 per million. Even

14 [2002] 2 SCR 712 : (2002) 4 SCC 247

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as of today, we are not able to reach the ratio of even 25 per million.

The directions issued in the case of Imtiyaz Ahmed v. State of

Uttar Pradesh & Ors.15 have not been complied with by the States

by increasing the Judge strength of the Trial and District Courts.

The figures of pendency of cases in our trial Courts are staggering.

There are different categories of cases which, by their very nature,

are required to be given utmost priority, such as the cases of the

accused in jail and the cases of senior citizens. For example, there are

many legislations like the Hindu Marriage Act, 1955, the Protection of

Women from Domestic Violence Act, 2005, the Negotiable Instruments

Act, 1881 etc which prescribe specific time limits for the disposal of

cases. However, due to the huge filing and pendency, our Courts

cannot conclude the trials within the time provided by the statutes.

There is a provision in the Code of Criminal Procedure, 1973, in the

form of Section 309, which requires criminal cases to be heard on a

day-to-day basis once the recording of evidence commences. The

same Section provides that in case of certain serious offences against

women, the cases must be decided within two months of filing the

charge sheet. Unfortunately, our Criminal Courts are not in a position

to implement the said provision. Apart from dealing with huge arrears,

our Trial Courts face the challenge of dealing with a large number of

cases made time-bound by our constitutional Courts. Therefore, in

the ordinary course, the constitutional Courts should not exercise the

power to direct the disposal of a case before any District or Trial Court

within a time span. In many cases, while rejecting a bail petition, a

time limit is fixed for disposal of trial on the ground that the petitioner

has undergone incarceration for a long time without realising that

the concerned trial Court may have many pending cases where the

accused are in jail for a longer period. The same logic will apply to the

cases pending before the High Courts. When we exercise such power

of directing High Courts to decide cases in a time-bound manner, we

are not aware of the exact position of pendency of old cases in the

said Courts, which require priority to be given. Bail petitions remain

pending for a long time. There are appeals against conviction pending

where the appellants have been denied bail.

32. Therefore, constitutional Courts should not normally fix a time-bound

schedule for disposal of cases pending in any Court. The pattern of

15 [2017] 1 SCR 305 : (2017) 3 SCC 658

[2024] 2 S.C.R. 983

High Court Bar Association, Allahabad v. State of U.P. & Ors.

pendency of various categories of cases pending in every Court,

including High Courts, is different. The situation at the grassroots level

is better known to the judges of the concerned Courts. Therefore,

the issue of giving out-of-turn priority to certain cases should be best

left to the concerned Courts. The orders fixing the outer limit for the

disposal of cases should be passed only in exceptional circumstances

to meet extraordinary situations.

33. There is another important reason for adopting the said approach.

Not every litigant can easily afford to file proceedings in the

constitutional Courts. Those litigants who can afford to approach the

constitutional Courts cannot be allowed to take undue advantage by

getting an order directing out-of-turn disposal of their cases while

all other litigants patiently wait in the queue for their turn to come.

The Courts, superior in the judicial hierarchy, cannot interfere with

the day-to-day functioning of the other Courts by directing that only

certain cases should be decided out of turn within a time frame. In

a sense, no Court of law is inferior to the other. This Court is not

superior to the High Courts in the judicial hierarchy. Therefore, the

Judges of the High Courts should be allowed to set their priorities on

a rational basis. Thus, as far as setting the outer limit is concerned,

it should be best left to the concerned Courts unless there are very

extraordinary circumstances.

IX. Procedure to be adopted by High Courts while passing interim

order of stay of proceedings and for dealing with the applications

for vacating interim stay

34. At the same time, we cannot ignore that once the High Court stays

a trial, it takes a very long time for the High Court to decide the main

case. To avoid any prejudice to the opposite parties, while granting

ex-parte ad-interim relief without hearing the affected parties, the High

Courts should normally grant ad-interim relief for a limited duration. After

hearing the contesting parties, the Court may or may not confirm the

earlier ad-interim order. Ad-interim relief, once granted, can be vacated

or affirmed only after application of mind by the concerned Court. Hence,

the Courts must give necessary priority to the hearing of the prayer

for interim relief where ad-interim relief has been granted. Though the

High Court is not expected to record detailed reasons while dealing

with the prayer for the grant of stay or interim relief, the order must give

sufficient indication of the application of mind to the relevant factors.

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35. An interim order passed after hearing the contesting parties cannot

be vacated by the High Court without giving sufficient opportunity

of being heard to the party whose prayer for interim relief has been

granted. Even if interim relief is granted after hearing both sides, as

observed earlier, the aggrieved party is not precluded from applying

for vacating the same on the available grounds. In such a case, the

High Court must give necessary priority to the hearing of applications

for vacating the stay, if the main case cannot be immediately taken

up for hearing. Applications for vacating interim reliefs cannot be

kept pending for an inordinately long time. The High Courts cannot

take recourse to the easy option of directing that the same should

be heard along with the main case. The same principles will apply

where ad-interim relief is granted. If an ad-interim order continues for

a long time, the affected party can always apply for vacating ad-interim

relief. The High Court is expected to take up even such applications

on a priority basis. If an application for vacating ex-parte ad interim

relief is filed on the ground of suppression of facts, the same must

be taken up at the earliest.

D. CONCLUSIONS

36. Hence, with greatest respect to the Bench which decided the case,

we are unable to concur with the directions issued in paragraphs

36 and 37 of the decision in the case of Asian Resurfacing1

. We

hold that there cannot be automatic vacation of stay granted by the

High Court. We do not approve the direction issued to decide all

the cases in which an interim stay has been granted on a day-today basis within a time frame. We hold that such blanket directions

cannot be issued in the exercise of the jurisdiction under Article 142

of the Constitution of India. We answer both the questions framed

in paragraph 5 above in the negative.

37. Subject to what we have held earlier, we summarise our main

conclusions as follows:

a. A direction that all the interim orders of stay of proceedings

passed by every High Court automatically expire only by reason

of lapse of time cannot be issued in the exercise of the jurisdiction

of this Court under Article 142 of the Constitution of India;

b. Important parameters for the exercise of the jurisdiction under

Article 142 of the Constitution of India which are relevant for

deciding the reference are as follows:

[2024] 2 S.C.R. 985

High Court Bar Association, Allahabad v. State of U.P. & Ors.

(i) The jurisdiction can be exercised to do complete justice

between the parties before the Court. It cannot be exercised

to nullify the benefits derived by a large number of litigants

based on judicial orders validly passed in their favour who

are not parties to the proceedings before this Court;

(ii) Article 142 does not empower this Court to ignore the

substantive rights of the litigants;

(iii) While exercising the jurisdiction under Article 142 of the

Constitution of India, this Court can always issue procedural

directions to the Courts for streamlining procedural aspects

and ironing out the creases in the procedural laws to ensure

expeditious and timely disposal of cases. However, while

doing so, this Court cannot affect the substantive rights of

those litigants who are not parties to the case before it.

The right to be heard before an adverse order is passed

is not a matter of procedure but a substantive right; and

(iv) The power of this Court under Article 142 cannot be

exercised to defeat the principles of natural justice, which

are an integral part of our jurisprudence.

c. Constitutional Courts, in the ordinary course, should refrain

from fixing a time-bound schedule for the disposal of cases

pending before any other Courts. Constitutional Courts may

issue directions for the time-bound disposal of cases only in

exceptional circumstances. The issue of prioritising the disposal

of cases should be best left to the decision of the concerned

Courts where the cases are pending; and

d. While dealing with the prayers for the grant of interim relief,

the High Courts should take into consideration the guidelines

incorporated in paragraphs 34 and 35 above.

38. We clarify that in the cases in which trials have been concluded as

a result of the automatic vacation of stay based only on the decision

in the case of Asian Resurfacing1

, the orders of automatic vacation

of stay shall remain valid.

39. The reference is answered accordingly. We direct the Registry to

place the pending petitions before the appropriate Benches for

expeditious disposal.

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Pankaj Mithal, J.

1. Concurring with the opinion expressed by my brother Justice Oka for

himself and other puisne Judges, including the Hon’ble Chief Justice, I

would like to add that in Asian Resurfacing of Road Agency Private

Limited & Anr. vs. Central Bureau of Investigation1

, this Court

while deciding the issues arising therein went ahead in observing

and directing that where a challenge to an order framing charge is

entertained and stay is granted, the matter must be decided on day to

day basis so that the stay may not continue for an unduly long time.

It was further observed that though no mandatory time limit may be

fixed for deciding such a challenge, the stay order may not normally

exceed two to three months or a maximum of six months unless it is

extended by specific speaking order. Further directions were issued

that in all pending matters before the High Court or other Courts

relating to Prevention of Corruption Act or all other civil or criminal

cases where stay is operating in pending trials, it will automatically

lapse after six months unless a speaking order is passed extending

the same. The Trial Court may, on expiry of the above period resume

the proceedings without waiting for any intimation unless express

order extending the stay is produced before the Court.

2. The above directions in Asian Resurfacing issued in exercise of

power of doing complete justice under Article 142 of the Constitution

of India are analogous to the constitutional provision as contained in

clause (3) of Article 226 of the Constitution of India which has been

inserted with effect from 1.8.1979 vide the Constitution (Forty-fourth

Amendment) Act, 1978. It reads as under:

“(3) Where any party against whom an interim order,

whether by way of injunction or stay or in any other manner,

is made on, or in any proceedings relating to, a petition

under clause (1), without—

(a) furnishing to such party copies of such petition and

all documents in support of the plea for such interim

order; and

(b) giving such party an opportunity of being heard,

1 [2018] 2 SCR 1045 : (2018) 16 SCC 299

[2024] 2 S.C.R. 987

High Court Bar Association, Allahabad v. State of U.P. & Ors.

makes an application to the High Court for the vacation

of such order and furnishes a copy of such application to

the party in whose favour such order has been made or

the counsel of such party, the High Court shall dispose

of the application within a period of two weeks from the

date on which it is received or from the date on which

the copy of such application is so furnished, whichever is

later, or where the High Court is closed on the last day of

that period, before the expiry of the next day afterwards

on which the High Court is open; and if the application is

not so disposed of, the interim order shall, on the expiry

of that period, or, as the case may be, the expiry of the

said next day, stand vacated.”

3. No doubt, the above provision is in respect to petitions filed before the

High Court invoking the extraordinary jurisdiction of the Court and is

not meant to be applied specifically to other proceedings, nonetheless

the principles behind the said provision can always be extended to

other proceedings as has been done in Asian Resurfacing. It is worth

noting that wherever under a statute any such time limit has been

prescribed or is fixed for deciding a particular nature of proceeding,

it has been held to be directory in nature rather than mandatory. So

appears to be the position with regard to the applicability of Article

226(3) of the Constitution of India.

4. It is well recognised that no one can be made to suffer on account of

any mistake or fault of the Court which means that even delay on part

of the Court in deciding the proceedings or any application therein

would not be detrimental to any of the parties to the litigation much

less to the party in whose favour an interim stay order is passed.

5. It is settled in law that grant of interim stay order ought to be

ordinarily by a speaking order and therefore as a necessary corollary,

a stay order once granted cannot be vacated otherwise than by a

speaking order, more so, when its extension also requires reasons

to be recorded.

6. It is noticeable that under Article 226(3) of the Constitution of India,

the automatic vacation of the stay order envisages making of an

application to the High Court for the vacation of the interim stay

order. Therefore, filing of an application for vacating the stay order

is a sine qua non for triggering the automatic vacation of the stay 

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order under Article 226(3) if such an application is not decided within

the time prescribed of two weeks.

7. In other words, applying the above analogy or principle, the stay order

granted in any proceedings would not automatically stand vacated

on the expiry of a particular period until and unless an application to

that effect has been filed by the other side and is decided following

the principles of natural justice by a speaking order.

8. Sometimes, in quest of justice we end up doing injustice. Asian

Resurfacing is a clear example of the same. Such a situation created

ought to be avoided in the normal course or if at all it arises be

remedied at the earliest. In doing so, we have to adopt a practical

and a more pragmatic approach rather than a technical one which

may create more problems burdening the courts with superfluous

or useless work. It is well said that useless work drives out the

useful work. Accordingly, it is expedient in the interest of justice

to provide that a reasoned stay order once granted in any civil or

criminal proceedings, if not specified to be time bound, would remain

in operation till the decision of the main matter or until and unless

an application is moved for its vacation and a speaking order is

passed adhering to the principles of natural justice either extending,

modifying, varying or vacating the same.

9. The reference made to this Court is answered and disposed of

accordingly.

Headnotes prepared by: Ankit Gyan Result of the case:

Reference answered.

Administration of Justice – Miscarriage of procedural justice – The principal grievance urged was that the petitioner was directly affected by the order of the High Court, but he was neither made a party to the proceedings nor was he furnished a notice of the proceedings – The Supreme Court permitted to file application for recall of the High Court’s order (26.12.2023) – The High Court dismissed the application – SLP filed by the petitioner for recall of the order of the High Court:

* Author

[2024] 1 S.C.R. 442 : 2024 INSC 43

Sanjay Kundu

v.

Registrar General, High Court of

Himachal Pradesh & Ors

(Special Leave Petition (Criminal) No 550-551 2024)

12 January 2024

[Dr Dhananjaya Y Chandrachud*, CJI, J B Pardiwala

and Manoj Misra, JJ.]

Issue for Consideration

The proceedings before the High Court were initiated on an

email from complainant, addressed to the Chief Justice of the

High Court. The High Court suo motu registered a Criminal Writ

Petition pursuant to the above email. The High Court directed that

the petitioner herein, who is holding the post of DGP, and the SP,

Kangra should be moved to any other post to ensure that a fair

investigation takes place. The petitioner was neither impleaded

in the proceedings nor was he heard before the above order was

passed. On that ground, the petitioner challenged it in a Special

Leave Petition before the Supreme Court.

Headnotes

Administration of Justice – Miscarriage of procedural justice

– The principal grievance urged was that the petitioner was

directly affected by the order of the High Court, but he was

neither made a party to the proceedings nor was he furnished

a notice of the proceedings – The Supreme Court permitted to

file application for recall of the High Court’s order (26.12.2023)

– The High Court dismissed the application – SLP filed by the

petitioner for recall of the order of the High Court:

Held: Earlier, when the Supreme Court permitted the petitioner to

move an application for recall of the High Court’s order, the directions

of the High Court for transfer of the petitioner were stayed – The

Court also stayed the order issued pursuant to the High Court’s

directions posting the petitioner as Principal Secretary (Ayush),

Government of Himanchal Pradesh – However, the High Court 

[2024] 1 S.C.R. 443

Sanjay Kundu v. Registrar General, High Court of

Himachal Pradesh & Ors

dismissed the recall application and directed the State to consider

forming a Special Investigation Team consisting of IG level officers

to coordinate the investigation in all the FIRs and to advise the

government on providing effective security to the complainant and

his family – In the instant case, the correct course of action for

the High Court would have been to recall its ex parte order and

to commence the proceedings afresh so as to furnish both the

petitioner and the complainant and other affected parties including

the SP, Kangra, an opportunity to place their perspectives before

it – Instead, the High Court, while deciding the recall application,

heavily relied on the status report submitted by the SP, Shimla

– The impugned order suffers from a patent error of jurisdiction –

The order was passed without compliance with the principles of

justice, especially, the principle of audi alteram partem – The order

dated 26.12.2023 had serious consequences, and it was passed

without hearing the petitioner who stood to be affected by it – A

post-decisional hearing of the kind conducted by the High Court

lacks fresh and dispassionate application of mind to the merits of

the recall application, and is for that very reason, likely to cause

disquiet – Thus, the direction of the High Court directing the shifting

out of the petitioner from the post of DGP is set aside – However,

the directions of the High Court to consider constituting an SIT

and grant of protection to the complainant and his family are not

disturbed – Instead of and in place of the direction of the High

Court requiring the State Government to consider constituting an

SIT, the State is directed to do so – The SIT shall consist of IG

level officers who shall not report to the petitioner for the purpose

of the investigation. [Paras 33, 34, 36, 37]

List of Keywords

Administration of Justice; Principles of justice; Miscarriage of

procedural justice; Error of jurisdiction; Audi alteram partem.

Case Arising From

EXTRAORDINARY APPELLATE JURISDICTION: Special Leave

Petition (Criminal) Nos. 550-551 of 2024.

From the Judgment and Order dated 09.01.2024 of the High Court

of Himachal Pradesh at Shimla in CRMP No.79 of 2024 and CRWP

No.14 of 2023.

444 [2024] 1 S.C.R.

Digital Supreme Court Reports

Appearances for Parties

Mukul Rohtagi, Sr. Adv., Gagan Gupta, Arkaj Kumar, Padmesh Mishra,

Ms. Ranjeeta Rohatgi, Ms. Tanya Aggarwal, Rushab Aggarwal,

Aakarsh Mishra, Advs. for the Petitioner.

Rahul Sharma, Ms. Rashmi Malhotra, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Dr Dhananjaya Y Chandrachud, CJI

1. Application for impleadment is allowed. Mr Nishant Sharma,

complainant, shall be added as a respondent to these proceedings.

Mr Rahul Sharma, counsel appears along with Ms Rashmi Malhotra,

counsel on behalf of the newly added respondent.

2. These proceedings emanate from an order of a Division Bench of

the High Court of Himachal Pradesh dated 9 January 2024.

Criminal Writ Petition and proceedings before the High Court

3. The proceedings before the High Court were initiated on an email

from Mr Nishant Kumar Sharma, addressed to the Chief Justice

of the High Court through the Registrar General. The complainant

alleged in his email, that he was facing threats emanating from two

persons - “X”, a former IPS officer and “Y”, a practicing advocate.

4. According to his email, the complainant is a resident of Palampur,

in District Kangra of Himachal Pradesh. His family conducts a hotel

in Palampur. A relative of “Y” had invested in the company of the

complainant. He alleges that “Y” has been pressurizing him and

his father through “X”to sell their shares in their company. “Y” was

stated to have threatened the company’s auditors, and obstructed

its functioning. The complainant alleged that he had escaped an

assault on 25 August, 2023 in Gurugram. The allegation was that

he was receiving phone calls from the office of the petitioner, who

is the Director General of Police1

, Himachal Pradesh at the behest

of Y. Allegedly, the complainant received a WhatsApp message from

the SHO, Palampur stating that the petitioner wished to speak to him

1 “DGP”.

[2024] 1 S.C.R. 445

Sanjay Kundu v. Registrar General, High Court of

Himachal Pradesh & Ors

and that he must call back on a particular phone number. When the

complainant established contact, he was connected to the petitioner,

who insisted that the complainant come to Shimla to meet him. The

email detailed criminal complaints filed by him in Gurugram after

an alleged attack on him, and subsequent instances of intimidation

to compel him to withdraw them. No FIR was registered in respect

of this complaint and a later complaint filed by the complainant in

relation to an incident that transpired in Mcleodganj.

5. On 9 November 2023, the High Court suo motu registered a Criminal

Writ Petition pursuant to the above email. The State of Himachal

Pradesh, Superintendent of Police, Kangra and Superintendent

of Police, Shimla were arrayed as respondents. On 10 November

2023, the High Court issued notice, directed the two SPs (Kangra

and Shimla) to file status reports and appointed an amicus curiae.

6. Status reports were filed on 16 November 2023 before the High

Court. The Advocate General assured the High Court that an FIR

would be registered on the complaint lodged by the complainant

on 28 October, 2023. On 16 November 2023, FIR No 55/2023 was

registered by the Mcleodganj Police Station for offences punishable

under Sections 341, 504 and 506 read with Section 34 of the Indian

Penal Code2

, after the registration of the criminal writ petition before

the High Court.

7. The status report submitted by the SP Kangra indicated that the

complainant had addressed an email to her on 06 November 2023

stating that he had received a phone call intimating him that an FIR

(No. 98/2023) had been registered against him at Shimla. The status

report submitted by SP, Shimla, stated that the said FIR 98/2023,

under Sections 299, 469, 499 and 505 of the IPC was registered

on a complaint made by the petitioner to the SHO, Police Station

East, District Shimla.

8. The status report of the SP Shimla indicated that there were telephonic

conversations between the petitioner and the complainant. Moreover,

on 27 October 2023 which is the date on which the incident is alleged

to have taken place at Mcleodganj, there were 15 missed calls from

the office land line numbers of the petitioner to the complainant. Shortly

2 “IPC”. 

446 [2024] 1 S.C.R.

Digital Supreme Court Reports

after the complainant refused to come to Shimla at the instance of

the petitioner, he was accosted by two persons at Mcleodganj who

called upon him to withdraw the complaint at Gurugram. The status

report found prima facie evidence of extortion, use of criminal force

to constrain the complainant to settle a civil dispute between him

and “Y” and abuse of the office of the petitioner, as DGP of Himachal

Pradesh.

9. A subsequent status report filed by the SP Shimla stated that

an Additional Superintendent of Police was placed in charge of

investigating FIR No 55 of 2023 filed by the complainant, in place

of the DSP. Another status report indicated that FIR No 350/2023

was registered on 27 November 2023 for offences under Sections

323, 506 read with Section 34 of the IPC at Police Station, Sector

9, Gurugram on the complaint lodged on 25 August 2023 by the

complainant.

10. On 21 December 2023, the Advocate General, appearing on behalf

of the State of Himachal Pradesh, submitted that the investigation

was being carried out uninfluenced by the office of the DGP. The

High Court flagged its concern at that stage in the following terms :

“(i) there is material detected in the investigation, as

pointed out in the status report of the respondent

No.3, which showed that the Director General of

Police had also been in continuous contact with Y,

the alleged business partner of the complainant (with

whom the complainant has disputes);

(ii) the Director General of Police had put the complainant

under surveillance;

(iii) that Director General of Police also made missed calls

on 27.10.2023 (the date of incident on Mcleodganj

alleged by the complainant) to the complainant’s

mobile phone and also spoke to him on that day; and

(iv) the Director General of Police had himself got

registered an FIR No.98/2023 dt. 4.11.2023 under

Sections 299, 469, 499 and 505 IPC against the

complainant.”

[2024] 1 S.C.R. 447

Sanjay Kundu v. Registrar General, High Court of

Himachal Pradesh & Ors

11. The High Court observed that in the backdrop of the status report,

the FIR registered at the behest of the petitioner, the surveillance of

the complainant and communication between the petitioner and the

complainant, the failure of the Police to act on the complaint was not

explained by the SP, Kangra. It noted that the FIR was registered

belatedly on 16 November 2023 only after the Court had entertained

the Writ Petition. The High Court then proceeded to observe that

the material collected by the SP, Shimla indicated prima facie that

the Director General of Police:

(i) Had been in touch with “Y”, the alleged business partner of

the complainant;

(ii) Had made 15 missed calls in an effort to contact the complainant

on 27 October 2023;

(iii) Had spoken to the complainant on 27 October 2023 and after

he refused to come to Shimla, the complainant was threatened

in an incident at Mcleodganj;

(iv) Placed the complainant under surveillance; and

(v) Lodged FIR No 98/2023 on 4 November 2023 against the

complainant.

12. The High Court observed that there is a real possibility that the

investigation would not be carried on fairly. It accordingly directed

that the petitioner, who is holding the post of DGP, and the SP,

Kangra should be moved to any other post to ensure that a fair

investigation takes place.

13. The petitioner was neither impleaded in the proceedings nor was

he heard before the above order was passed. On that ground, the

petitioner challenged it in a Special Leave Petition before this Court.

14. The principal grievance urged before this Court was that the petitioner

was directly affected by the order of the High Court dated 26 December

2023, but he was neither made a party to the proceedings nor was

he furnished a notice of the proceedings.

15. This Court permitted the petitioner to move an application for recall

of the High Court’s order dated 26 December 2023. The recall

application was directed to be disposed of within a period of two

weeks and until then, the directions of the High Court for transfer of

the petitioner were stayed. This Court also stayed the order issued 

448 [2024] 1 S.C.R.

Digital Supreme Court Reports

pursuant to the High Court’s directions posting the petitioner as

Principal Secretary (Ayush), Government of Himanchal Pradesh.

16. This Court recorded that both petitioner and complainant had no

objection if the investigation were to be transferred to the Central

Bureau of Investigation3

 so as to obviate any allegation of interference

at the behest of the petitioner.

The present Special Leave Petition:

17. The present SLP stems from the rejection of the petitioner’s recall

application mentioned above. The High Court has dismissed it and has

directed the State Government to consider within a week, forming a

Special Investigation Team4

 consisting of IG level officers to coordinate

the investigation in all the FIRs and to advise the government on

providing effective security to the complainant and his family.

18. By the impugned order, the High Court also rejected an application

filed by the SP Kangra, to implead her and to recall its earlier order

dated 26 December 2023 by which she was also directed to be moved

out of the post. Though the State Government had implemented

the order of the High Court against the petitioner, it has not been

implemented against SP, Kangra yet.

19. Before the High Court, it was admitted on behalf of the petitioner that

he had requested the complainant to come to Shimla. The case of the

petitioner was that he was contacted by a senior advocate (referred

to as “Y”) who had a dispute in regard to business transactions with

the complainant. Allegedly, the dispute had taken an ugly turn when

scandalous allegations were made by the complainant against “Y”,

following which, on 9 October 2023, an email was addressed by “Y”

to the petitioner to take action against the complainant. The petitioner

admitted that in pursuance of the email, on 27 October 2023, he

asked his Private Secretary to contact the complainant through his

official land line. The petitioner states that he was informed that

the complainant could not be reached despite repeated attempts.

Eventually, on 27 October 2023, the complainant made a call to

the petitioner and when he was requested to come to Shimla, he

declined to do so on the ground that he was travelling out of India.

3 “CBI”.

4 “SIT”.

[2024] 1 S.C.R. 449

Sanjay Kundu v. Registrar General, High Court of

Himachal Pradesh & Ors

20. On the other hand, it is the complainant’s case that “Y” has been

using his connections so as to intimidate the complainant into selling

his shares in his company. Having failed in the takeover bid, “Y” has

resorted to threatening the complainant and his family, through the

petitioner.

21. The High Court observed that while it could not decide on the rival

contentions, the petitioner, who is a public servant, had overstepped

his authority by intervening in what was clearly a private civil dispute.

The High Court noted that the status report submitted by the SP Shimla

indicated the continuing contact of “Y” with the petitioner between

September and November 2023 and that the SHO, Palampur had

approached the complainant requiring him to call up the land line

number of the petitioner. The High Court observed that the petitioner

had admitted in his recall application to having placed the hotel run by

the complainant under surveillance for alleged drug running activities

in September 2023.

22. The status report filed by the SP Shimla on 4 January 2023 alleged

that the petitioner was intimidating in his conduct towards the

Investigating Officer handling the case initiated by FIR No. 98/2023

filed at the instance of the petitioner against the complainant. The

status report stated that the conduct of the petitioner raised suspicion

about his role in the alleged offences against the complainant. When

the petitioner was confronted with this status report of the SP, Shimla,

the petitioner imputed mala fide intentions to the said officer.

23. Before proceeding further, it is necessary to note the submissions

which have been urged by Mr. Mukul Rohatgi, senior counsel

appearing for the petitioner in relation to the imputations against

the SP, Shimla. A blast is alleged to have taken place on 18 July

2023 in Shimla resulting in the loss of two lives and injury to several

others. The blast was investigated under the supervision of the

SP Shimla who, according to the petitioner, sought to cover it up

as an accidental blast of an LPG cylinder. The petitioner is stated

to have addressed a communication to the Additional Secretary in

the Union Ministry of Home Affairs requesting an investigation by

the National Bomb Data Centre of the National Security Guard. In

subsequent communications to the Chief Secretary on 10 August

2023 and 1 September 2023, the petitioner alleged negligence in

the post-blast investigation by the SP Shimla and requisitioned the 

450 [2024] 1 S.C.R.

Digital Supreme Court Reports

NSG for investigation, suspecting the use of an IED including RDX

which was allegedly detected at the site of the blast.

24. In this backdrop, the petitioner has alleged that the SP Shimla was

on inimical terms arising out of his communications to the State

Government in regard to SP Shimla’s handling of the blast.

25. The Advocate General has opposed the plea of the petitioner for

recalling the order and opposed the allegations levelled by the

petitioner against the SP Shimla.

26. This court had noted in its previous order dated 3 January 2024,

that counsel for both the complainant as well as the petitioner are

agreeable to the transfer of the investigation to the CBI. The High

Court noted that the Advocate General has opposed the transfer of

the investigation. Bearing in mind the principles laid down by this

court - that the power to transfer an investigation to an outside agency

is to be exercised with circumspection - the High Court rejected the

plea for transfer of the investigation to the CBI.

Analysis

27. The case has travelled to this Court once again arising out of the

rejection of the application filed by the petitioner for recall of the

earlier order of the High Court.

28. The consequence of the impugned order is that:

(i) The earlier order of the High Court directing that the petitioner

should be shifted out of the post of DGP, Himachal Pradesh

stands revived;

(ii) The State Government has been directed to consider forming

a Special Investigation Team consisting of IG level officers to

coordinate the investigation of all the FIRs; and

(iii) The grant of protection to the complainant has been directed

to be evaluated by the Government.

29. We have heard Mr Mukul Rohatgi, senior counsel appearing on

behalf of the petitioner and Mr Rahul Sharma, counsel appearing

on behalf of the newly added respondent-complainant.

30. At the outset, we must express our reservations about the manner

in which the High Court took up the matter ex parte and issued

directions transferring the petitioner out of the post of DGP in the first 

[2024] 1 S.C.R. 451

Sanjay Kundu v. Registrar General, High Court of

Himachal Pradesh & Ors

instance. The proceedings were triggered by an email addressed by

the complainant to the Chief Justice imputing allegations of the misuse

of his official position as DGP against the petitioner. The allegations

which were levelled by the complainant are that the petitioner, in

his official capacity, intervened in a civil dispute and attempted to

used his office to intimidate the complainant. The allegations are

apparently serious and evidently formed the basis of the order that

the High Court originally passed on 26 December 2023.

31. Based on the status reports filed in the proceedings before it, the High

Court came to a prima facie conclusion that the investigation into the

FIRs could not be conducted fairly with the petitioner at the helm as

the DGP. The High Court thus directed that the petitioner be moved

to other posts to ensure a fair investigation. In doing so the High

court has assumed disciplinary jurisdiction over the petitioner. This

was clearly impermissible. As a serving police officer, the petitioner

is subject to the disciplinary control which is wielded over him in

terms of the rules governing service. The High Court has improperly

assumed those powers to itself without considering the chain of

administrative control in the hierarchy of the service. The State

Government shifted the petitioner as Principal Secretary (Ayush) in

compliance with the directions of the High Court. The consequence

of shifting out of an IPS officer has serious consequences. The order

was passed without an opportunity to the petitioner to contest the

allegations against him or to place his response before the Court.

There was thus a manifest miscarriage of procedural justice.

32. By this Court’s order dated 3 January 2024, the petitioner was

relegated to the remedy of a recall application before the High

Court since his grievance was the denial of an opportunity to be

heard before the High Court, before it passed the order dated

26 December 2023.

33. The correct course of action for the High Court would have been to

recall its ex parte order dated 26 December 2023 and to commence

the proceedings afresh so as to furnish both the petitioner and the

complainant and other affected parties including the SP, Kangra,

an opportunity to place their perspectives before it. Instead, the

High Court, while deciding the recall application, heavily relied on 

452 [2024] 1 S.C.R.

Digital Supreme Court Reports

the status report submitted by the SP, Shimla on 4 January 2024.

The High Court has, in the course of its order, also relied on the

earlier status reports which were referred to in its order dated 26

December 2023.

34. The impugned order suffers from a patent error of jurisdiction. The

order was passed without compliance with the principles of justice,

especially, the principle of audi alteram partem. The order dated

26 December 2023 had serious consequences, and it was passed

without hearing the petitioner who stood to be affected by it. A postdecisional hearing of the kind conducted by the High Court lacks

fresh and dispassionate application of mind to the merits of the recall

application, and is for that very reason, likely to cause disquiet.

35. At this stage, we are desisting from expressing any opinion on the

allegations which are made against the petitioner or, for that matter,

the allegations that the petitioner has made against SP, Shimla. The

SP Shimla is not present before this Court. It is, therefore, necessary

to clarify that the submissions which have been made by the petitioner

earlier, as recorded above, have not been commented upon in the

course of this judgment.

36. The High Court has directed the State Government to consider

constituting an SIT so that an objective and fair investigation can

take place. The High Court has directed that the SIT shall consist

of IG level officers who will probe all aspects of the matter including

the FIRs which gave rise to the proceedings before it. Likewise, the

High Court has directed that the State Government should consider

granting adequate protection to the complainant and his family. We

are not disturbing either of these two findings by the High Court.

37. However, it would be inappropriate to maintain the order of the

High Court directing that the petitioner be shifted out of the post

of DGP in pursuance of the earlier order dated 26 December 2023

which stands affirmed by the impugned order. The above direction

of the High Court directing the shifting out of the petitioner from the

post of DGP is set aside. The petitioner shall exercise no control

whatsoever in respect of the investigation which is to be carried

out by the Special Investigation Team. Instead of and in place of 

[2024] 1 S.C.R. 453

Sanjay Kundu v. Registrar General, High Court of

Himachal Pradesh & Ors

the direction of the High Court requiring the State Government

to consider constituting an SIT, we issue a direction to the State

Government to do so. The SIT shall consist of IG level officers who

shall not report to the petitioner for the purpose of the investigation.

The State Government is directed to provide adequate security to

the complainant and to the members of his family and to continue

to do so based on its evaluation of the threat perception. We clarify

that since the investigation is to be carried out by the SIT, we are

not expressing any opinion on the merits of the allegations which

shall be duly investigated in accordance with law.

38. The Special Leave Petitions are accordingly disposed of.

39. Pending applications, if any, stand disposed of.

Headnotes prepared by: Ankit Gyan Result of the case: SLPs disposed of.

Whether sanction u/s. 197 Cr.P.C. is required to prosecute respondent No. 2 who faces accusation amongst others of creating fake documents by misusing his official position as a Village Accountant, thus a public servant. The competent authority has declined to grant sanction to prosecute. High Court has held that in the absence of such sanction, respondent No. 2 cannot be prosecuted and consequently has quashed the complaint as well as the chargesheet, giving liberty to the appellant to assail denial of sanction to prosecute respondent No. 2 in an appropriate proceeding, if so advised.

* Author

[2024] 1 S.C.R. 429 : 2024 INSC 42

Shadakshari

v.

State of Karnataka & Anr.

(Criminal Appeal No.256 of 2024)

17 January 2024

[Abhay S. Oka and Ujjal Bhuyan*, JJ.]

Issue for Consideration

Whether sanction u/s. 197 Cr.P.C. is required to prosecute

respondent No. 2 who faces accusation amongst others of

creating fake documents by misusing his official position as a

Village Accountant, thus a public servant. The competent authority

has declined to grant sanction to prosecute. High Court has held

that in the absence of such sanction, respondent No. 2 cannot

be prosecuted and consequently has quashed the complaint as

well as the chargesheet, giving liberty to the appellant to assail

denial of sanction to prosecute respondent No. 2 in an appropriate

proceeding, if so advised.

Headnotes

Code of Criminal Procedure, 1973 – s.197 – Sanction under –

Appellant-complainant lodged an FIR alleging that respondent

no.2 and another were irregularly creating documents of

property in the name of dead person despite knowing the fact

those were fake documents – The High Court observed that

respondent no.2 was a public servant – The offence complained

against him, as per prosecution, was committed while

discharging his duties as a public servant – Sanction sought

by the investigating officer was denied – Consequently, the

High Court held that since sanction was refused, prosecution

for criminal offence against public servant cannot continue

– Propriety:

Held: It is settled that s.197 Cr.P.C. does not extend its protective

cover to every act or omission of a public servant while in

service – It is restricted to only those acts or omissions which are

done by public servants in the discharge of official duties – The 

430 [2024] 1 S.C.R.

Digital Supreme Court Reports

question whether respondent No.2 was involved in fabricating

official documents by misusing his official position as a public

servant is a matter of trial – Certainly, a view can be taken

that manufacturing of such documents or fabrication of records

cannot be a part of the official duty of a public servant – If that

be the position, the High Court was not justified in quashing the

complaint as well as the chargesheet in its entirety, more so

when there are two other accused persons besides respondent

No.2 – There is another aspect of the matter – Respondent

No.2 had unsuccessfully challenged the complaint in an earlier

proceeding u/s. 482 Cr.P.C. – Though liberty was granted by the

High Court to respondent No.2 to challenge any adverse report

if filed subsequent to the lodging of the complaint, instead of

confining the challenge to the chargesheet, respondent No.2

also assailed the complaint as well which he could not have

done – The High Court erred in quashing the complaint as well

as the chargesheet in its entirety. [Paras 23, 25]

Code of Criminal Procedure, 1973 – s. 197 – Ambit, scope

and effect of:

Held: The object of such sanction for prosecution is to protect a

public servant discharging official duties and functions from undue

harassment by initiation of frivolous criminal proceedings. [Para 19]

Case Law Cited

State of Orissa Vs. Ganesh Chandra Jew, [2004] 3

SCR 504:(2004) 8 SCC 40; D. Devaraja Vs. Obais

Sanders Hussain, [2020] 6 SCR 453:(2020) 7 SCC

695 – relied on.

A.Srinivasulu v. State Rep. by the Inspector of Police,

[2023] 10 SCR 11: 2023 SCC OnLine SC 900 –

distinguished.

Lalita Kumari Vs. Govt. of Uttar Pradesh, [2013] 14

SCR 713:(2014) 2 SCC 1; Shambhoo Nath Misra Vs

State of U.P., [1997] 2 SCR 1139:(1997) 5 SCC 326

– referred to.

List of Acts

Code of Criminal Procedure, 1973 – s. 197.

[2024] 1 S.C.R. 431

Shadakshari v. State of Karnataka & Anr.

List of Keywords

Public servant; Fabrication of record; Discharge of official

duties; Sanction; Protective cover to act or omission by

public servant.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 256

of 2024.

From the Judgment and Order dated 25.11.2020 of the High Court of

Karnataka at Bengaluru in CRP No.4998 of 2020.

Appearances for Parties

C. B. Gururaj, Prakash Ranjan Nayak, Animesh Dubey, T. G. Ravi,

Advs. for the Appellant.

D. L. Chidananda, Rahul Kaushik, Anil C Nishani, V Murnal, Krishna

M Singh, Rajivkumar, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Ujjal Bhuyan, J.

Heard learned counsel for the parties.

2. Challenge made in this appeal is to the order dated 25.11.2020

passed by the High Court of Karnataka at Bengaluru in Criminal

Petition No.4998 of 2020 (Sri. Mallikarjuna Vs. State of Karnataka)

quashing the complaint dated 19.12.2016 lodged by the appellant;

the chargesheet in C.C. No.116 of 2018 including the order dated

28.03.2018 passed therein by the learned Judicial Magistrate First

Class, Belur.

3. Facts lie within a very narrow compass. The appellant as the

complainant lodged a first information report dated 19.12.2016

(referred to as ‘the complaint’ in the impugned order) alleging that

respondent No.2 and another were irregularly creating documents of

property in the name of dead person despite knowing the fact that

those were fake documents, such as, death certificate, family tree

of the original successor of land of the appellant etc. for illegal gain.

The said first information was received and registered by Haleebedu 

432 [2024] 1 S.C.R.

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Police Station, Belur as Crime No. 323/2016 under Sections 409,

419, 420, 423, 465, 466, 467, 468, 471 and 473 of the Indian Penal

Code, 1860 (IPC) read with Section 149 and Section 34 thereof.

4. It may be mentioned that respondent No.2 is working as Village

Accountant, Kirigdalu Circle in the district of Hassan, Karnataka State.

5. Respondent No.2 filed a petition under Section 482 of the Code of

Criminal Procedure, 1973 (Cr.PC) for quashing of the said FIR before

the High Court of Karnataka at Bengaluru (‘High Court’ for short).

The same was registered as Criminal Petition No.9580 of 2017.

5.1 The High Court in its order dated 05.01.2018 noted that the

specific case of the appellant was that land admeasuring 1 acre

13 guntas in survey No.7/6 situated at Chattanahalli Village,

Halebeedu Hobli, Belur Taluk, Hassan District belonged to

the appellant and his family members. The same was given

to accused No.1 for the purpose of cultivation. Accused No.1

in collusion with revenue officials including accused No.2

(respondent No.2 herein) created lot of fake documents in favour

of respondent No.1. High Court vide the order dated 05.01.2018

observed that there were specific and serious allegations against

respondent No.2 even as to creation of death certificate of a

living person. It was observed that a reading of the FIR made

out a case for investigation and that it was too premature to

interfere with such FIR. Adverting to the case of Lalita Kumari

Vs. Govt. of Uttar Pradesh, (2014) 2 SCC 1, the High Court did

not interfere though granted liberty to respondent No.2 to seek

his legal remedy in the event any adverse report was made.

6. Sub Inspector of Police, Haleebedu Police Station, who was the

investigating officer submitted final report under Section 173 of the

Cr.PC in the Court of the Additional Civil Judge (Junior Division)

and Judicial Magistrate First Class, Belur on 20.03.2018 which was

registered as chargesheet No.12/2018. The following persons have

been named as accused in the chargesheet:

i. Accused No.1 - Ramegowda

ii. Accused No.2 - Mallikarjuna (respondent No.2)

iii. Accused No.3 - Manjunath Aras

[2024] 1 S.C.R. 433

Shadakshari v. State of Karnataka & Anr.

They have been charged under Sections 471, 468, 467, 465, 420,

409, 466 and 423 read with Section 34 of IPC. The chargesheet

also mentions the names of thirty-one witnesses.

7. As per the chargesheet, the deceased husband of witness No.2

Somashekharappa had permitted his deceased younger brother

Thumbegowda to use the subject land for cultivation about 40-50

years ago. After the death of Thumbegowda, his son i.e. accused

No.1 was cultivating the subject land. During the year 1993,

Somashekharappa died but accused No.1 in collusion with accused

No. 2 (respondent No.2) created a fake certificate of death to the

effect that Somashekharappa had died during the year 2010.In this

fake document, father of the deceased Thumbegowda was mentioned

as Somashekharappa instead of Sannasiddegowda. By creating such

fake document, the accused sought to make illegal gain.

8. Respondent No.2 again approached the High Court by filing a petition

under Section 482Cr.PC for quashing the complaint dated 19.12.2016

as well as the chargesheet and the order dated 28.03.2018 (what is

the order dated 28.03.2018 has not been mentioned by respondent

No.2). It may be mentioned that upon the chargesheet being filed

in the court of the Additional Civil Judge (Junior Division) and

Judicial Magistrate First Class, Belur, the same was registered as

C.C. No.116 of 2018. The quash petition of respondent No.2 was

registered as Criminal Petition No.4998 of 2020. The High Court

observed that respondent No.2 was a public servant. The offence

complained against him, as per the prosecution, was committed while

discharging his duties as a public servant. Investigating officer had

sought for sanction to prosecute respondent No.2 but sanction was

denied. In such circumstances, High Court held that since sanction

was refused, prosecution for criminal offence against a public servant

cannot continue. Consequently, the complaint, the chargesheet as

well as the order dated 28.03.2018 were set aside by the High Court

vide the order dated 25.11.2020.

9. Aggrieved thereby, the complainant as the appellant has instituted

the present proceeding.

10. This court by order dated 15.05.2023 granted permission to the

appellant to file special leave petition. After condoning the delay,

notice was issued.Thereafter, respondent No.2 filed counter affidavit.

On perusal of the counter affidavit of the second respondent this 

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court in the proceedings held on 21.11.2023 noted that Annexure R-1

annexed to the said affidavit was a file noting recording the opinion

of some officers that it was not a fit case to accord sanction under

Section 197 Cr.PC to prosecute the second respondent. However, this

Court noticed that there was no decision of the competent authority

granting sanction. In such an eventuality, this Court directed the

State to file an affidavit dealing with the aspect of sanction and to

produce the relevant document.

11. Pursuant thereto respondent No. 1 i.e State of Karnataka has filed an

affidavit. The affidavit says that the investigating officer had written to

the Deputy Commissioner, Hassan, on 22.01.2018 seeking sanction

to prosecute the village accountant Mallikarjun (Responsible No. 2).

It is further seen that the Additional Deputy Commissioner, Hassan

had informed the investigating officer vide letter dated 17.03.2018

that upon examination of the concerned file and considering the

opinion of the legal advisor, sanction for prosecution of respondent

No. 2 was not granted.

12. Learned counsel for the appellant submits that the High Court was

not justified in quashing the complaint as well as the chargesheet

and the related cognizance order. He submits that no sanction to

prosecute was required qua respondent No. 2 as making of a fake

document cannot be said to be carried out by respondent No. 2 in

the discharge of his official duty. In support of his contention, he

has placed reliance on the decision of this Court in Shambhoo Nath

Misra Vs State of U.P., (1997) 5 SCC 326.

13. Learned State counsel supports the contentions of the learned

counsel for the appellant.

14. On the other hand, learned counsel for respondent No. 2 supports the

order of the High Court and submits that the High Court had rightly

quashed the complaint and the chargesheet. Without sanction to

prosecute a public servant the latter cannot be prosecuted. This is a

well-settled proposition and in this connection has placed reliance on

a decision of this Court in D. Devaraja Vs. Obais Sanders Hussain,

(2020) 7 SCC 695.

15. Submissions made by learned counsel for the parties have received

the due consideration of this court. 

[2024] 1 S.C.R. 435

Shadakshari v. State of Karnataka & Anr.

16. The question for consideration in this appeal is whether sanction

is required to prosecute respondent No. 2 who faces accusation

amongst others of creating fake documents by misusing his official

position as a Village Accountant, thus a public servant? The competent

authority has declined to grant sanction to prosecute. High Court

has held that in the absence of such sanction, respondent No. 2

cannot be prosecuted and consequently has quashed the complaint

as well as the chargesheet, giving liberty to the appellant to assail

denial of sanction to prosecute respondent No. 2 in an appropriate

proceeding, if so advised.

17. Section 197 Cr.PC deals with prosecution of judges and public

servants. Section 197 reads as under:

“197. Prosecution of Judges and public servants:

(1) When any person who is or was a Judge or Magistrate

or a public servant not removable from his office save

by or with the sanction of the Government is accused of

any offence alleged to have been committed by him while

acting or purporting to act in the discharge of his official

duty, no Court shall take cognizance of such offence

except with the previous sanction (save as otherwise

provided in the Lokpal and Lokayuktas Act, 2013) –

(a) in the case of a person who is employed or, as the

case may be, was at the time of commission of the

alleged offence employed, in connection with the

affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the

case may be, was at the time of commission of the

alleged offence employed, in connection with the

affairs of a State, of the State Government:

[Provided that where the alleged offence was committed

by a person referred to in clause (b) during the period

while a Proclamation issued under clause (1) of Article

356 of the Constitution was in force in a State, clause

(b) will apply as if for the expression “State Government”

occurring therein, the expression “Central Government”

were substituted.]

436 [2024] 1 S.C.R.

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[Explanation — For the removal of doubts it is hereby

declared that no sanction shall be required in case of a

public servant accused of any offence alleged to have

been committed under section 166A, section 166B, section

354, section 354A, section 354B, section 354C, section

354D, section 370, section 375, section 376, section

376A, section 376AB, section 376C, section 376D, section

376DA, section 376DB or section 509 of the Indian Penal

Code (45 of 1860).]

(2) No Court shall take cognizance of any offence alleged

to have been committed by any member of the Armed

Forces of the Union while acting or purporting to act in

the discharge of his official duty, except with the previous

sanction of the Central Government.

(3) The State Government may, by notification, direct

that the provisions of Sub-Section (2) shall apply to such

class or category of the members of the Forces charged

with the maintenance of public order as may be specified

therein, wherever they may be serving, and thereupon

the provisions of that sub-section will apply as if for the

expression “Central Government” occurring therein, the

expression “State Government” were substituted.

[(3A) Notwithstanding anything contained in sub-section

(3), no Court shall take cognizance of any offence, alleged

to have been committed by any member of the Forces

charged with the maintenance of public order in a State

while acting or purporting to act in the discharge of his

official duty during the period while a Proclamation issued

under clause (1) of article 356 of the Constitution was in

force therein, except with the previous sanction of the

Central Government.]

[(3B) Notwithstanding anything to the contrary contained

in this Code or any other law, it is hereby declared that

any sanction accorded by the State Government or any

cognizance taken by a Court upon such sanction, during

the period commencing on the 20th day of August, 1991

and ending with the date immediately preceding the date

on which the Code of Criminal Procedure (Amendment) Act,

1991, receives the assent of the President, with respect 

[2024] 1 S.C.R. 437

Shadakshari v. State of Karnataka & Anr.

to an offence alleged to have been committed during the

period while a Proclamation issued under clause (1) of

article 356 of the Constitution was in force in the State,

shall be invalid and it shall be competent for the Central

Government in such matter to accord sanction and for the

Court to take cognizance thereon.]

(4) The Central Government or the State Government, as

the case may be, may determine the person by whom, the

manner in which, and the offence or offences for which, the

prosecution of such Judge, Magistrate or public servant is

to be conducted, and may specify the Court before which

the trial is to be held.”

18. As per sub section (1) of Section 197 where any person who is or

was a judge or magistrate or a public servant not removable from his

office save by or with the sanction of the Government is accused of

any offence alleged to have been committed by him while acting or

purporting to act in the discharge of his official duty, no court shall

take cognizance of such offence except with the previous sanction

of the Central Government or the State Government, as the case

may be.

19. The ambit, scope and effect of Section 197 Cr.PC has received

considerable attention of this court. It is not necessary to advert to

and dilate on all such decisions. Suffice it to say that the object of

such sanction for prosecution is to protect a public servant discharging

official duties and functions from undue harassment by initiation of

frivolous criminal proceedings.

20. In State of Orissa Vs. Ganesh Chandra Jew, (2004) 8 SCC 40, this

court explained the underlying concept of protection under Section

197 and held as follows:

“7. The protection given under Section 197 is to protect

responsible public servants against the institution of

possibly vexatious criminal proceedings for offences

alleged to have been committed by them while they are

acting or purporting to act as public servants. The policy

of the legislature is to afford adequate protection to public

servants to ensure that they are not prosecuted for anything

done by them in the discharge of their official duties without

reasonable cause, and if sanction is granted, to confer on 

438 [2024] 1 S.C.R.

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the Government, if they choose to exercise it, complete

control of the prosecution. This protection has certain limits

and is available only when the alleged act done by the

public servant is reasonably connected with the discharge

of his official duty and is not merely a cloak for doing the

objectionable act. If in doing his official duty, he acted in

excess of his duty, but there is a reasonable connection

between the act and the performance of the official duty,

the excess will not be a sufficient ground to deprive the

public servant of the protection. The question is not as

to the nature of the offence such as whether the alleged

offence contained an element necessarily dependent upon

the offender being a public servant, but whether it was

committed by a public servant acting or purporting to act

as such in the discharge of his official capacity. Before

Section 197 can be invoked, it must be shown that the

official concerned was accused of an offence alleged to

have been committed by him while acting or purporting to

act in the discharge of his official duties. It is not the duty

which requires examination so much as the act, because

the official act can be performed both in the discharge of

the official duty as well as in dereliction of it. The act must

fall within the scope and range of the official duties of the

public servant concerned. It is the quality of the act which

is important and the protection of this section is available if

the act falls within the scope and range of his official duty.

There cannot be any universal rule to determine whether

there is a reasonable connection between the act done

and the official duty, nor is it possible to lay down any

such rule. One safe and sure test in this regard would

be to consider if the omission or neglect on the part of

the public servant to commit the act complained of could

have made him answerable for a charge of dereliction

of his official duty. If the answer to this question is in the

affirmative, it may be said that such act was committed

by the public servant while acting in the discharge of his

official duty and there was every connection with the act

complained of and the official duty of the public servant.

This aspect makes it clear that the concept of Section

197 does not get immediately attracted on institution of

the complaint case.”

[2024] 1 S.C.R. 439

Shadakshari v. State of Karnataka & Anr.

21. This aspect was also examined by this court in Shambhu Nath

Misra (supra). Posing the question as to whether a public servant

who allegedly commits the offence of fabrication of records or

misappropriation of public funds can be said to have acted in the

discharge of his official duties. Observing that it is not the official

duty to fabricate records or to misappropriate public funds, this court

held as under:

“5. The question is when the public servant is alleged

to have committed the offence of fabrication of record

or misappropriation of public fund etc. can he be said

to have acted in discharge of his official duties. It is not

the official duty of the public servant to fabricate the

false records and misappropriate the public funds etc. in

furtherance of or in the discharge of his official duties. The

official capacity only enables him to fabricate the record

or misappropriate the public fund etc. It does not mean

that it is integrally connected or inseparably interlinked

with the crime committed in the course of the same

transaction, as was believed by the learned Judge. Under

these circumstances, we are of the opinion that the view

expressed by the High Court as well as by the trial court

on the question of sanction is clearly illegal and cannot

be sustained.”

22. Even in D. Devaraja (supra) relied upon by learned counsel for

respondent No. 2, this court referred to Ganesh Chandra Jew (supra)

and held as follows:

“35. In State of Orissa v. Ganesh Chandra Jew [State of

Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004

SCC (Cri) 2104] this Court interpreted the use of the

expression “official duty” to imply that the act or omission

must have been done by the public servant in course of

his service and that it should have been in discharge of his

duty. Section 197 of the Code of Criminal Procedure does

not extend its protective cover to every act or omission

done by a public servant while in service. The scope of

operation of the section is restricted to only those acts or

omissions which are done by a public servant in discharge

of official duty.”

440 [2024] 1 S.C.R.

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23. Thus, this court has been consistent in holding that Section 197

Cr.PC does not extend its protective cover to every act or omission

of a public servant while in service. It is restricted to only those acts

or omissions which are done by public servants in the discharge of

official duties.

24. After the hearing was over, learned counsel for respondent No.2

circulated a judgment of this Court in A. Srinivasulu Vs. State Rep.

by the Inspector of Police, 2023 SCC OnLine SC 900 in support of

the contention that a public servant cannot be prosecuted without

obtaining sanction under Section 197 of Cr.PC. We have carefully

gone through the aforesaid decision rendered by a twoJudge Bench

of this Court in A. Srinivasulu(supra). That was a case where seven

persons were chargesheeted by the Central Bureau of Investigation

(CBI) for allegedly committing offences under Section 120B read with

Sections 420, 468, 471 along with Sections 468 and 193 IPC read

with Sections 13 (2) and 13(1)(d) of the Prevention of Corruption

Act, 1988 (for short ‘P.C. Act, 1988’). Four of the accused persons

being A-1, A-2, A-3 and A-4 were officials of Bharat Heavy Electricals

Limited, a public sector undertaking and thus were public servants

both under the IPC as well as under the P.C. Act, 1988. Accused

No.1 had retired from service before filing of the chargesheet. Insofar

accused Nos. 3 and 4, the competent authority had refused to grant

sanction but granted the same in respect of accused No.1. It was in

that context that this court considered the requirement of sanction

under Section 197 Cr.P.C qua accused No.1 and observed that

accused No.1 could not be prosecuted for committing the offence

of criminal conspiracy when sanction for prosecuting accused Nos.3

and 4 with whom criminal conspiracy was alleged, was declined.

This court held as follows:

“52. It must be remembered that in this particular case,

the FIR actually implicated only four persons, namely

PW-16, A-3, A-4 and A-5. A-1 was not implicated in the

FIR. It was only after a confession statement was made

by PW-16 in the year 1998 that A-1 was roped in. The

allegations against A-1 were that he got into a criminal

conspiracy with the others to commit these offences. But

the Management of BHEL refused to grant sanction for

prosecuting A-3 and A-4, twice, on the ground that the

decisions taken were in the realm of commercial wisdom 

[2024] 1 S.C.R. 441

Shadakshari v. State of Karnataka & Anr.

of the Company. If according to the Management of the

Company, the very same act of the co-conspirators fell

in the realm of commercial wisdom, it is inconceivable

that the act of A-1, as part of the criminal conspiracy,

fell outside the discharge of his public duty, so as to

disentitle him for protection under Section 197(1) of

the Code.”

24.1 Admittedly, facts of the present case are clearly distinguishable

from the facts of A. Srinivasulu (supra) and, therefore, the said

decision cannot be applied to the facts of the present case.

25. The question whether respondent No.2 was involved in fabricating

official documents by misusing his official position as a public servant

is a matter of trial. Certainly, a view can be taken that manufacturing

of such documents or fabrication of records cannot be a part of the

official duty of a public servant. If that be the position, the High Court

was not justified in quashing the complaint as well as the chargesheet

in its entirety, more so when there are two other accused persons

besides respondent No.2. There is another aspect of the matter.

Respondent No.2 had unsuccessfully challenged the complaint in

an earlier proceeding under Section 482 Cr.PC. Though liberty was

granted by the High Court to respondent No.2 to challenge any

adverse report if filed subsequent to the lodging of the complaint,

instead of confining the challenge to the chargesheet, respondent No.2

also assailed the complaint as well which he could not have done.

26. That being the position, we are of the unhesitant view that the High

Court had erred in quashing the complaint as well as the chargesheet

in its entirety. Consequently, we set aside the order of the High Court

dated 25.11.2020 passed in Criminal Petition No. 4998/2020. We

make it clear that observations made in this judgment are only for

the purpose of deciding the present challenge and should not be

construed as our opinion on merit. That apart, all contentions are

kept open.

27. Appeal is accordingly allowed. No costs.

Headnotes prepared by: Ankit Gyan Result of the case: Appeal allowed.