Himachal Pradesh High Court
Parbodh Chander & Anr. vs . State Of H.P & on 30 November, 2023
Parbodh Chander & anr. vs. State of H.P &
.
anr.
Cr. MMO No.422 of 2018
30.11.2023 Present: Mr. P.S. Goverdhan, Sr. Advocate, with Mr.
Rakesh Thakur, Advocate, for the petitioners.
Mr. Jitender Sharma, Additional Advocate
General, for the respondent No.1.
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None for respondent No.2.
It has been stated that an appropriate application
rt
on account of death of respondent No.2. will be moved within
one week.
It was laid down by Hon'ble Supreme Court in
Asian Resurfacing of Road Agency (P) Ltd. v. CBI, (2018) 16 SCC
299 : (2020) 1 SCC (Cri) 686 : 2018 SCC OnLine SC 310, that in
a criminal case, the stay order will lapse after six months, if
not extended by a speaking order. It was observed:
"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 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
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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."
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This position was reiterated in Asian Resurfacing
of Road Agency (P) Ltd. v. CBI, (2022) 10 SCC 592 : (2023) 1 SCC
rt
(Cri) 400 : 2020 SCC OnLine SC 1046, wherein it was
observed:
"2. The learned Additional Chief Judicial Magistrate,
Pune, by his order dated 4-12-2019, has instead of
following our judgment in letter as well as spirit,
stated that the complainant should move an
application before the High Court to resume the trial.
The Magistrate goes on to say:"The lower court
cannot pass any order which has been stayed by the
Hon'ble High Court, Bombay with due respect of
ratio of the judgment in Asian Resurfacing of Road
Agency (P) Ltd. [Asian Resurfacing of Road Agency
(P) Ltd. v. CBI, (2018) 16 SCC 299 : (2020) 1 SCC (Cri)
686] " We must remind the Magistrates all over the
country that in our pyramidical structure under the
Constitution of India, the Supreme Court is at the
apex, and the High Courts, though not subordinate
administratively, are certainly subordinate
judicially. This kind of orders fly in the face of para
36 of our judgment.
3. We expect that the Magistrates all over the country
will follow our order in letter and spirit. 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."
In view of the above, it is clarified that the stay
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order dated 17.09.2018 stands vacated as per the judgments of
the Hon'ble Supreme Court.
List the matter after four weeks.
of
(Rakesh Kainthla)
Judge
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November 30th , 2023
(saurav pathania)
