The court ruled that statutory remedies must be exhausted before seeking relief under Article 32, and the overruling of a precedent affects the validity of prior stay orders.

1. Permission is granted to the petitioner to appear and argue in person.

2. The petitioner has invoked the jurisdiction of this Court under Article 32 of the Constitution of India seeking the following relief:

“1. To grant the benefit of anticipatory bail to the petitioner in respect of complaint No.6264/21 (original 434/07), titled Hansraj Vs. Vijay Bhushan Gautam, to the satisfaction of Ld. ACJ-IV (Sr. Div.), Ghaziabad.

2. It is requested & prayed that after taking into consideration of age & other vital factors, the petitioner may kindly be granted the benefit of Anticipatory Bail in respect of complaint no.6264/21 (original 434/07).

3. Any & such further orders as this Hon'ble Court may deem fit & proper in the facts & circumstances of the case.”

3. Having regard to the fact that the remedy of securing bail in anticipation of arrest is available to the petitioner under section 438 of the Code of Criminal Procedure, 1973 (Cr. PC) which he has not availed, we are not inclined to entertain this writ petition in exercise of jurisdiction conferred on us by Article 32 of the Constitution.

4. However, our attention has been drawn to a revisional order of the Sessions Judge, Ghaziabad dated 09 th April, 2024, whereby a criminal revisional petition filed by the petitioner [questioning the order dated 12 th February, 2024 passed by the Additional Chief Judicial Magistrate, Court No.4, Ghaziabad (ACJM) issuing non-bailable warrant against the petitioner and also initiating process under Section 82 of the Cr. PC] was rejected.

5. Having read the order dated 09 th April, 2024, we find that the petitioner is an accused in a private complaint. He questioned proceedings initiated by the jurisdictional magistrate by filing a writ petition before the High Court in the year 2009, whereupon the proceedings were stayed. Such order of stay stood automatically vacated in view of the decision of this Court in Asian Resurfacing of Road Agency Pvt. Ltd. Vs. Central Bureau of Investigation 1 . The petitioner was unaware of the fact that the stay order stood vacated which resulted in the order of the ACJM, since affirmed by the Sessions Judge, noted above.

6. Pertinently, the decision in Asian Resurfacing of Road Agency 1 (2018) 16 SCC 299 Pvt. Ltd. (supra) has since been overruled by a Constitution Bench of this Court in its decision in High Court Bar Association, Allahabad Vs. State of U.P. & Ors. 2 7. A Bench of this Court upon noticing the overruling of Asian Resurfacing of Road Agency Pvt. Ltd. (supra), in its order dated 01 st March, 2024 in Pawan Agarwal vs. State of Uttar Pradesh 3 , held, inter alia , as follows:

“10. The development is, indeed, significant. In our reading, the sequitur of the observations made by the Constitution Bench in High Court Bar Association, Allahabad (supra), in the context of this appeal, is that if the trial has not been concluded following an automatic vacation of stay per Asian Resurfacing (supra), such automatic vacation of stay would be invalid and stand inoperative. Concededly, in the present case, trial has not been concluded; and having regard to overruling of the decision in Asian Resurfacing (supra), the order of stay granted by the High Court on the application under Section 482 of the Cr. P.C., vide order dated 19.08.2011, would revive meaning thereby that, no coercive action can be taken against the appellant till such time his application under Section 482 of the Cr.P.C. is next considered by the High Court. We place on record our inability to be ad idem with learned senior counsel for the respondent – State, and hold to the contrary.

11. In view of the legal position, discussed above, we do not see any reason to decide whether the High Court was justified in its approach of dismissing the application under Section 438, Cr. P.C. on the ground of maintainability. The appeal stands disposed of by holding that the interim order dated 19.08.2011 granted by the High Court has become operative from t