Read Time: 18 minutes

Synopsis

The Supreme Court recently said that only in rare and exceptional cases where the order of discharge is ex-facie perverse can the revisional court take the extreme step of staying that order due to its grave consequences, as it curtails the liberty of the accused.

Such an order should be passed only after giving the accused an opportunity to be heard. Moreover, while granting the stay, the court must mould the relief so that the trial does not proceed against the discharged accused, a bench of Justices Abhay S Oka and Ujjal Bhuyan said.

The court emphasised that the position of a discharged accused is on a higher pedestal than that of an accused who is acquitted after a full trial.

"An order staying the order of discharge is a very drastic order which has the effect of curtailing or taking away the liberty granted to the accused by the discharge order. As a result of the order staying the order of discharge, the order of discharge ceases to operate, and the Sessions Court can proceed to frame charges against the accused and try him further. Thus, the stay of the discharge order has a grave consequences of depriving an accused of the liberty granted under the discharge order," the bench said.

The court further said that granting a stay on the order of discharge amounts to granting final relief, as the trial can proceed against the accused.

"An interim order can be granted pending disposal of the main case only if the interim order is in the aid of final relief sought in the main case. If the discharge order is ultimately set aside by grant of final relief in the revision, the accused has to face the trial. Therefore, the order staying the order of discharge by way of interim relief cannot be said to be in the aid of final relief," the bench said.

The bench also pointed out that if the trial against a discharged accused proceeds even before the revision application against the order of discharge is decided, the final outcome of the revision will become fait accompli.

The apex court set aside the Delhi High Court's orders of October 21, 2023, and November 4, 2024, by which a single judge ex parte stayed the discharge of the appellant Sudarshan Singh Wazir and ordered him to surrender in a case related to the murder of a former MLC of the J&K National Conference.

His counsel contended that the high court ought not to have stayed the order of discharge. The consequence of the stay order is that the trial will proceed against the appellant despite his discharge, he argued. He submitted that unless the order of discharge is set aside, the trial cannot proceed.

Delhi Police, on the contrary, submitted that it was a very serious case involving the murder of a former Member of the Legislative Council of Jammu and Kashmir and the Chairman of the Jammu and Kashmir Gurudwara Prabandhak Committee. The counsel submitted that apart from CCTV footage, there was evidence from CDR records and eyewitnesses. He claimed that the order of discharge was perverse.

He argued that the high court has the power to stay or suspend the operation of the impugned order. In fact, as per sub-section (1) of Section 401 of the CrPC, the high court, while dealing with a revision application, is empowered to exercise all the powers of the Court of Appeal under Sections 386, 389, 390, and 391 of the CrPC. Therefore, after admitting the revision application for hearing, the high court has the power under Section 390 of the CrPC to direct that the appellant be committed to prison. He urged that considering the prima facie findings recorded in the first impugned order, the high court had every justification to order the appellant to be taken into custody.

The victim's counsel submitted that once a revision application against the order of discharge is admitted, the status of the appellant as an accused is revived, and therefore, the trial must proceed against him, and he must be taken into custody.

The court, on its part, said that while exercising revisional jurisdiction under Section 401, the high court has all the powers of the appellate court under Sections 386, 389, 390, and 391 of the CrPC. The corresponding provisions under the BNSS are Sections 427, 430, 431, and 432, respectively, it pointed out.

"In view of what is provided under Section 397(1), the High Court has the power to suspend the operation of the order impugned in the revision application. The question is whether the power to grant a stay can be exercised for staying an order of discharge," the bench asked.

Before addressing the power of the revisional court to stay the order of discharge, the bench said it is necessary to consider the effect of discharge.

"In a trial before a Court of Sessions, the power to discharge is conferred on the Court by Section 227 of the CrPC. In the case of a trial of a warrant case, there is a similar power to grant a discharge under Section 245 of the CrPC," it said.

After considering the material in the charge sheet and the submissions of the parties, if the court concludes that there is no sufficient ground for proceeding against the accused, the court must discharge the accused with reasons recorded, the bench said.

"When a discharge order is passed, the person discharged ceases to be an accused. The position of a discharged accused is on a higher pedestal than that of an accused who is acquitted after a full trial. The reason is that a charge can be framed, and an accused can be tried only when there is sufficient material in the charge sheet to proceed against him. An order of discharge is passed when the charge sheet does not contain sufficient material to proceed against the accused," the bench said.

Citing Parvinder Singh Khurana vs Directorate of Enforcement (2024), the bench also said that the order of discharge stands on a higher pedestal than the order granting bail.

"By grant of bail, the status of the accused does not cease to be that of an accused, but when the order of discharge is passed, he ceases to be an accused. The power of the court to stay the order granting bail can be exercised only in rare and exceptional cases. As a discharged accused stands on a still higher pedestal than an accused released on bail, the law laid down in the case of Khurana will apply more strictly and rigorously while dealing with the application for grant of stay of the order of discharge," it said.

Under Section 390, the court said that when an appeal is preferred against an order of acquittal, the high court is empowered to issue a warrant directing that the accused be arrested and brought before it or any subordinate court.

The court also pointed out that it is well settled that an order of acquittal further strengthens the presumption of innocence of an accused.

"Therefore, as a normal rule, where an order under Section 390 of the CrPC is passed, the accused must be admitted to bail rather than committing him to prison. It is well-settled in our jurisprudence that bail is the rule, and jail is the exception. This rule must be applied while exercising power under Section 390 of the CrPC, as the position of the acquitted accused is on a higher pedestal than an accused facing trial. When an accused faces trial, he is presumed to be innocent until he is proven guilty," the bench said.

The high court may exercise power under Section 390 by directing the person discharged to appear before the trial court and by directing the trial court to admit him to bail on appropriate terms and conditions, the court added.

"Passing an order under Section 390 directing the discharged accused to admit to bail is sufficient to procure the presence of the discharged accused at the time of hearing of the revision application and for undergoing trial if the order of discharge is set aside," the bench said.

In the case, the court said that the ex-parte order staying the order of discharge should not have been passed by the high court.

"The consequences of such an order are very drastic. Hence, the ex-parte order of stay is entirely illegal," the bench said.

The court asked the high court to decide the revision application without being influenced by its order. It also directed the appellant to appear before the trial court, which would grant him bail on appropriate terms and conditions.

Case Title: Sudershan Singh Wazir Vs State (NCT of Delhi) & Ors