Decoding What the Good Lords Meant in Asian Resurfacing Judgment

The Supreme Court order in Asian Resurfacing judgment has created unnecessary confusion and panic, writes DORMAAN DALAL.

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Robert Langdon, fictional character of Da Vinci Code, would have quickly submitted to Catholicism over decoding the Supreme Court judgment in Asian Resurfacing of Road Agency Private Limited Pvt. Ltd. v. Central Bureau of Investigation (Asian Resurfacing). At least that's what I felt like, when I started getting random queries from clients who were till last week avoiding my 'fee collection' phone calls.

Reports emerged that the Supreme Court had reprimanded a learned Additional Chief Judicial Magistrate from my gaon and warned the other Magistrates to fall in line. After doing the rounds on social media, the October 15 order created hysteria and confusion because of what the 'Lords' said:

"Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, as per our judgment, within the next six months, the trial Court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same."

My initial reaction was to do nothing.

I knew this had something to do with a Supreme Court judgment delivered at a time when 'corona' was only associated with daru. I didn't want to spend my weekend reading that 72 page judgment.

But when the calls from clients kept coming in with annoying demands to move matters for extension of stay, I finally relented.

Prepare yourself for analysing the Asian Resurfacing judgment: Order Chai or Kaphi

You can download the judgment reported at (2018) 16 SCC 229, but if you're like me and need to desecrate the hard copy with a Flair Sunny 4 refill-walla pen, then print the majority judgment delivered by Justice A.K. Goel for himself and Justice Navin Sinha.

What you must do after that is order coffee or chai if you're in a work space that is not WFH (Working from Home).

Please DO NOT order that expensive coffee from that "STAR- WALLA" coffee shop. Know your aukaat. The chaiwallah across the street has cutting chai and kaphi.

If you're WFH, then make your own damn chai or coffee. Don't expect your mom to make it for you. She's got better things to do than put up with your existence.

Now put the chai or coffee next to you on a coaster (we don't want ring stains) and get down to work.

Start reading Asian Resurfacing judgment

The judgment pertains to the Prevention of Corruption Act. The issue was whether an order of framing charge under the said Act is an interlocutory order and if so whether the revisional jurisdiction of the High Court is barred.

You'll find this by reading paragraphs 6 to 15 and, of these, give special attention to paras 12 to 15 with those colourful pens.

Then jump to para 17 to get the gist. The majority states here that, "though the question referred relates to the issue whether order framing charges is an interlocutory order, we have considered further question as to the approach to be adopted by the High Court in dealing with the challenge to the order framing charge."

Scroll to paras 26 and 27 and you'll find the majority holding that the order framing the charge is not a purely interlocutory order. Read with para 37, it can be interfered with by the High Court, and stay can be granted in exceptional situations.

However, what the majority considered was, in what circumstances was a stay order to be granted?

In para 32, the majority observes that "the challenge against an order of framing charge may not require meticulous examination of voluminous material". Yet, the court is called upon to examine this material at the stage of charge.

Eventually, in para 33 the majority holds that if a challenge to an order framing charge is entertained and a stay is granted by the High Court, then the matter should be concluded in two to three months. However, if the matter remains pending for a longer period, then the stay should be vacated on the expiry of six months unless extended for extraordinary reasons.

Now what comes next is complicated. So, take a ten-minute break if you have to and go get another cuppa joe because this is going to take a while.

What does the Asian Resurfacing judgment say? 

In para 35, the majority opines that the "situation of proceedings that remain pending" due to stays needs to be remedied, "not only for corruption cases but for all civil and criminal cases" held up on account of stay. Therefore, in order to do complete justice as per Article 142 of the Lords' Book, the majority "attempts" to remedy the situation by passing certain directions.

The majority directs 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 the date of the judgment i.e. March 28, 2018, "unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same 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 finalized. 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."

In para 36, the majority then directs that "In all pending matters before the High Courts or other courts relating to 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" March 28, 2018 unless extended by a speaking order. "Same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts. The trial courts may, on expiry of above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced."

By now you should be murdering paragraphs 35 and 36 with that Flair Sunny 4 refill-walla pen.

Now go get a blank paper and scribble this down:

1. The directions in para 35 and 36 of Asian Resurfacing will apply when,

A) a civil or criminal case is pending in a Court, meaning thereby a Trial Court or a High Court is exercising Ordinary Original Civil Jurisdiction;

B) the Trial has commenced; meaning thereby on framing of issues in a civil trial [See Ajendraprasadji N. Pandey and another v. Swami keshavprakeshdasji N. and others] and on framing of charges in a criminal trial [See Hardeep Singh v. State of Punjab and others]

And

C) when the High Court or Civil or Criminal Appellate/Revisional Courts have granted stay to the trial.

2. The aforesaid directions will not apply to cases where,

a) a High Court grants stay to the civil suit or criminal case prior to framing of issues or charges i.e. before the trial starts;

b) a High Court grants stay in a Writ Petition challenging the order of a quasi-judicial authority or an order passed by the State or an instrumentality or agency of State under Article 226 and Article 227;

c) a High Court grants stay in a Writ Petition challenging the action of an executive authority or an instrumentality of the State;

d) a quasi-judicial body or a Tribunal (and not a Trial Court) grants stay, such as the Central Administrative Tribunal or a Revenue Tribunal of a State.

This is what the Lords actually mean. To read something more into it is committing hara-kiri.

The confusion is created when 'those clients' of yours get their information from WhatsApp. You can't blame the clients. It's not their fault. Unfortunately, we don't have press releases coming from the courts unlike say, the International Court of Justice.

Incidentally, the October 15 order concerns the very same parties in whose matter the judgment was delivered in March 2018. Two of the three Lords (Nariman and Sinha JJ.) who were a part of the Bench in Asian Resurfacing were also a part of the Bench that passed the October 15 order. Goel J. who had since retired was replaced by K.M. Joseph J.

The most important thing to remember here is that the October 15 order cannot be read in isolation. It has to be read with Asian Resurfacing judgment of March 2018.

Therefore, on October 15 when the Lords stated, "Whatever stay has been granted by any court including the High Court automatically expires within a period of six months…", they mean this in terms of para 36 of the judgment that I've dealt with above. "A stay granted by any court" means a stay granted by the Civil and Criminal Appellate/ Revisional Court as per para 36 of the judgment.

I hope this decoding helped you. You owe me big time. Believe me, I've done you a favour. Duty towards your colleagues at the bar and what have you! Now go call that client and give him a piece of your mind.

(Prior to the pandemic, Dormaan Dalal could be found in the corridors of the Bombay High Court playing "woody puzzle" on his phone while waiting for his matter to be called out. Compliments, if any, may be posted on his twitter handle @DormaanD. Views are personal.)