1. Challenge to charge-sheet under Section 482 CrPC — automatic vacation of interim stay — subsequent dismissal of pre-arrest bail application under Section 438 CrPC. (Para 2 , 3 , 4 , 5 , 6 , 7 )
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2024 Supreme(SC) 1309
SUPREME COURT OF INDIA
DIPANKAR DATTA, K.V. VISWANATHAN, JJ.
Pawan Agarwal - Appellant
Versus
State Of Uttar Pradesh - Respondent
Criminal Appeal No. OF 2024 [arising out of SLP (Crl.) No. 9625/2023]
Decided on : 01-03-2024
Advocates:
Advocate Appeared:
For the Appellant : Mr. Ivan, AOR, Mr. Vivek Mathur, Adv., Mr. Alok K Singh, Adv., Mr. Siddharth Agarwal, Adv.
For the Respondent: Ms. Garima Prashad, Sr. A.A.G., Mr. Sudeep Kumar, AOR, Mr. Aviral Saxena, Adv.
Advocate Appeared:
For the Appellant : Mr. Ivan, AOR, Mr. Vivek Mathur, Adv., Mr. Alok K Singh, Adv., Mr. Siddharth Agarwal, Adv.
For the Respondent: Ms. Garima Prashad, Sr. A.A.G., Mr. Sudeep Kumar, AOR, Mr. Aviral Saxena, Adv.
Important Points
The automatic vacation of stay orders is invalid if trials have not concluded, reaffirming litigants' substantive rights.
Subject
Criminal Law - Bail
Act Referred
CONSTITUTION OF INDIA : Art.142, Art.226
CRIMINAL PROCEDURE CODE : S.173(2), S.438, S.482
INDIAN PENAL CODE : S.307, S.323, S.406, S.420, S.504, S.506
CRIMINAL PROCEDURE CODE : S.173(2), S.438, S.482
INDIAN PENAL CODE : S.307, S.323, S.406, S.420, S.504, S.506
Headnote
(A) Indian Penal Code, 1860 - Sections 420, 406, 307, 323, 504, 506 - Code of Criminal Procedure, 1973 - Sections 438 and 482 - Writ jurisdiction - The appellant challenged the FIR registered against him and sought interim protection from arrest, which was granted. Following the filing of a charge-sheet, the appellant's application for pre-arrest bail was dismissed as not maintainable. The Supreme Court noted that a Constitution Bench has overruled the decision in Asian Resurfacing, leading to the revival of the stay order granted by the High Court. (Paras 9-11)
(B) Legal principles - Automatic vacation of stay orders is invalid if trials have not concluded, reaffirming the substantive rights of litigants. (Paras 9-10)
(B) Legal principles - Automatic vacation of stay orders is invalid if trials have not concluded, reaffirming the substantive rights of litigants. (Paras 9-10)
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
- constitutional law
Table of Contents
2. Whether interim stay granted in Section 482 CrPC proceedings automatically vacates per Asian Resurfacing or revives following its overruling by a Constitution Bench. (Para 6 , 9 )
3. Automatic vacation of stay granted by High Court is invalid and inoperative if the trial has not been concluded following the overruling of Asian Resurfacing. (Para 9 , 10 )
4. Interim stays automatically vacated under Asian Resurfacing revive if the trial is not concluded, as Article 142 cannot be used to ignore substantive rights of litigants. (Para 9 , 10 )
5. Appeal disposed of — interim order against coercive action revived from the date Asian Resurfacing was overruled — pending disposal of Section 482 CrPC application. (Para 11 , 12 )
6. Does the decision in Asian Resurfacing still allow for the automatic vacation of stays granted by High Courts?
No. A Constitution Bench overruled Asian Resurfacing, holding that Article 142 of the Constitution does not empower the Court to ignore substantive rights of litigants or issue blanket directions for the automatic vacation of stays. (Para 9 )
7. What happens to interim stays that were automatically vacated under Asian Resurfacing if the trial is still pending?
If the trial has not been concluded, the automatic vacation of the stay is considered invalid and inoperative, meaning the original interim order of stay revives. (Para 10 )
8. Does the revival of a stay under these circumstances prevent coercive action against the accused?
Yes, the revival of the interim order means that no coercive action can be taken against the appellant until the pending application, such as one under Section 482 CrPC, is considered by the High Court. (Para 10 , 11 )
ORDER :
1. Leave granted.
2. The appellant is an accused in First Information Report1[FIR ‘for short’]/Case Crime No. 311 of 2010 registered with Police Station Mugalpura, District – Moradabad, Uttar Pradesh for the offence(s) punishable under Sections 420, 406, 307, 323, 504, and 506 of the Indian Penal Code, 18602[IPC ‘for short’ ].
3. Challenging the proceedings following registration of the FIR, the appellant had invoked the writ jurisdiction of the High Court of Judicature at Allahabad by moving a petition under Article 226 of the Constitution of India3[Criminal Misc. Writ Petition No. 12974 of 2010]. Vide order dated 21.07.2010, an Hon’ble Division Bench of the High Court passed, inter alia, the following order:
“. . . . . . . Till the next date of listing or till submission of charge sheet whichever is earlier, the arrest of the petitioner, namely, Pawan Agarwal who is wanted in Case Crime No. 311 of 2010, under Section 420, 406, 307, 323, 504, 506 I.P.C. P.S. Mugalpura, District Moradabad shall remain stayed of course subject to the restraint that the petitioner shall fully cooperate with the investigation and shall appear as and when called upon to assist in the investigation.”
4. The aforesaid interim protection came to an end with the filing of a charge-sheet in terms of the provisions of Section 173 (2) of the Code of Criminal Procedure, 19734[Cr.P.C. ‘for short’] on 14.08.2010, upon completion of investigation.
5. Aggrieved, the appellant approached the High Court this time by presenting an application under Section 482 of the Cr.P.C. He laid a challenge to the charge sheet dated 14.08.2010. Upon hearing the application, a learned Single Judge of the High Court vide order dated 19.08.2011 admitted the same and directed that no coercive action shall be taken against the appellant till the next date of listing.
6. What transpired immediately thereafter is not too clear. However, what is clear is, and that is also the stand of the State, that the interim order dated 19.08.2011 stood automatically vacated in view of the decision of this Court in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, (2018) 16 SCC 299 but the application under Section 482 of the Cr.P.C. remained pending.
7. Following such a development, the appellant once again approached the High Court with an application for an order under Section 438 of the Cr.P.C. Such application came to be dismissed as not maintainable, vide the impugned judgment and order dated 24.07.2023, on the ground that the appellant’s application under Section 482 of the Cr.P.C. for quashing the charge-sheet was still pending and, in view thereof, it was not open to him to seek an order for pre-arrest bail by applying under Section 438 of the Cr.P.C. The High Court granted liberty to the appellant to pursue his pending application for quashing in accordance with law.
8. The judgment and order dated 24.07.2023 having been challenged before this Court, the appellant was granted interim protection by an order dated 17.08.2023. He was, however, required to participate diligently in the proceedings before the trial Court, till such time this Court considered the matter next.
9. Learned counsel for the appellant has invited our attention to a development during the pendency of this appeal. Referring to a judgment and order dated 29.02.2024 in High Court Bar Association, Allahabad vs. State of U.P. & Ors., Criminal Appeal No. 3589 of 2023, he submits that a Constitution Bench of this Court has overruled the decision in Asian Resurfacing (supra). He further submits that the Constitution Bench has specifically held that Article 142 of the Constitution of India does not empower this Court to ignore the substantive rights of the litigants, that there cannot be automatic vacation of stay granted by the High Court and that blanket directions cannot be issued in the exercise of jurisdiction under Article 142. He also draws our pointed attention to paragraph 38 of the said
