The automatic vacation of stay orders is invalid if trials have not concluded, reaffirming litigants' substantive rights.

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