If you are stuck in such a situation, here is what to do.

A common concern for individuals involved in the criminal justice system is the seemingly endless nature of proceedings, especially when a higher court, like a High Court or the Supreme Court of India, issues a stay order. Imagine a scenario involving Mr. Rohan Kapoor, an accused in a criminal case in the city of Vidyanagar. After the charge sheet was filed, his legal team successfully obtained an interim stay on the trial court proceedings from the State High Court, arguing a fundamental error in the charges.

However, Mr. Kapoor’s relief was short-lived. He is now caught in a legal limbo, wondering if he must continue to appear before the trial court indefinitely, merely to mark his attendance. He fears that if he misses a few dates, the court might issue a Non-Bailable Warrant (NBW) against him. This raises a critical question: What is the endgame for criminal trials that are paused by a higher court’s order? Does the accused face a lifetime of court appearances?

Consider the illustrative case of Mr. Alok Verma versus the State of Avanti. Mr. Verma was charged under a controversial legal provision. The High Court allowed the prosecution to proceed. He appealed to the Supreme Court, which granted a stay on the trial and sought the Central Government’s stance on the complex legal question involved. With the main issue pending before the apex court, Mr. Verma’s trial is effectively frozen. Such situations lead to anxiety about whether the case will only conclude upon the death of the accused, or if there is a procedural path to resolution.

Advice in such cases

If you find your case in a similar state of suspension due to a stay order, it is crucial to take proactive steps rather than passively waiting.

• Understand the Scope of the Stay: Carefully review the stay order with your lawyer. Does it stay all proceedings, or only specific actions like framing of charges or examination of witnesses? Sometimes, the trial court may still require procedural appearances.
• File for Exemption from Personal Appearance: The most effective step is to file an application in the trial court, attaching the higher court’s stay order, and requesting an exemption from personal appearance. The court usually allows this, permitting your lawyer to appear on your behalf.
• Seek Vacation or Modification of Stay: If you are the complainant and the stay is causing undue delay, you can approach the higher court to have the stay vacated or modified, arguing that justice is being denied.
• Expedite the Higher Court Hearing: Either party can file an application in the High Court or Supreme Court, where the matter is pending, requesting an early hearing to resolve the legal issue and lift the stay.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

The power of the courts to stay proceedings is an inherent part of ensuring justice and preventing abuse of the legal process. The key legal provisions are:

• Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023: This section preserves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Sanhita, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Granting a stay on trial proceedings is a common exercise of this power.
• Article 136 of the Constitution of India: This grants the Supreme Court the discretion to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
• Article 142 of the Constitution of India: This empowers the Supreme Court to pass any decree or order necessary for doing complete justice in any cause or matter pending before it. Stay orders are often passed under this provision.

If you are the complainant

As a complainant, a stay order can be incredibly frustrating as it halts the progress toward justice. Your objective is to see the trial conclude.

• Stay Informed: Keep in regular contact with the public prosecutor and your own lawyer to understand the reasons for the stay and the expected timeline.
• Challenge the Stay: You have the right to oppose the stay. You can file a counter-affidavit in the higher court, arguing why the trial should proceed. You can also file an application for vacating the stay, especially if it has been pending for an unreasonable amount of time.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

For a victim, a stay order can feel like a denial of justice and can prolong the emotional and psychological trauma. It is vital to remain engaged with the legal process.

• Liaise with the Prosecution: The public prosecutor represents the state, but it is your case. Ensure they are aware of your interest in a speedy resolution and provide them with any necessary information or support.
• Intervention Application: In certain cases, a victim can file an intervention application in the higher court to present their perspective and argue against the continuation of the stay.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

Once a charge sheet has been filed and the case is before the court for trial, the active role of the police significantly diminishes. When a stay order is issued by a higher court, the police have a very limited role. Their primary duty is to ensure compliance with court orders. If, for instance, a Non-Bailable Warrant (NBW) is issued by the trial court (which is unlikely if the stay is properly communicated), the police would be tasked with executing it. Otherwise, they are not involved in the day-to-day proceedings or the legal arguments surrounding the stay.

FAQs people normally have

Do I have to keep appearing in the trial court if there is a stay?
Generally, no. Once the stay order is formally presented to the trial court, you can file an application for exemption from personal appearance. The court will typically grant this, and your lawyer’s presence will suffice.

What happens if the accused dies while the case is stayed?
If the accused passes away during the pendency of the case, the proceedings against them are abated (terminated). A death certificate is filed in court, and the case against the deceased accused is formally closed.

Can a case be disposed of while a stay is in effect?
No, the trial court cannot proceed with the trial or dispose of the case on merits while a stay order from a higher court is operational. The case remains on the court’s record in a dormant state until the stay is lifted or the higher court passes a final order.

What evidence is required?

The most critical piece of evidence in this situation is the stay order itself. You must obtain a certified copy of the order passed by the High Court or the Supreme Court. This certified copy needs to be formally filed in the trial court through an application or memo. This officially informs the trial court of the stay and places the higher court’s directive on the record, compelling the trial court to halt proceedings.

How long will the investigation take?

In this context, the investigation is already complete, as a stay is typically sought after the filing of the charge sheet. The more relevant question is, “How long will the case remain stayed?” The duration of a stay is not indefinite. The Supreme Court of India has passed judgments directing that interim stay orders in civil and criminal matters should not remain in force indefinitely. Generally, a stay order is expected to be dealt with expeditiously. If the higher court proceedings are delayed, either party can file an application for an early hearing. A stay automatically expires if the matter is not decided within a specific period, often compelling the higher court to take up the case for a final decision.

Advocate Sudhir Rao, Supreme Court of India