Kiran Raj

The Supreme Court set aside an order passed by the Delhi High Court that had stayed the discharge of an accused in a murder case. The bench, comprising Justice Abhay S. Oka and Justice Ujjal Bhuyan, considered the implications of such a stay on the liberty of an accused and addressed the scope of revisional jurisdiction under Sections 397 and 401 of the Criminal Procedure Code (CrPC). The court observed that a stay on a discharge order has serious consequences and must not be granted without hearing the accused.

The case involved the discharge of the appellant, who was not initially named in the First Information Report (FIR) but was subsequently included in a supplementary chargesheet. The appellant was charged under Sections 302, 201, and 34 of the Indian Penal Code (IPC), along with Section 120B IPC and relevant provisions of the Arms Act. The Additional Sessions Judge passed an order on October 20, 2023, discharging the appellant and directing his release upon furnishing a personal bond. The State of NCT of Delhi challenged this order before the Delhi High Court, which, in an ex-parte interim order on October 21, 2023, stayed the discharge. This stay was extended on multiple occasions.

An application was later filed by the State seeking the surrender of the appellant. The Delhi High Court, in an order dated November 4, 2024, held that since the discharge order had been stayed, the appellant’s status as an accused was revived, necessitating his surrender. The Supreme Court, while staying this order, stated that such a directive affected the liberty of the accused without due consideration.

During the hearing before the Supreme Court, Senior Advocate Siddharth Luthra, appearing for the appellant, argued that the High Court’s stay order effectively nullified the discharge and forced the accused to face trial without setting aside the discharge order. He submitted that the appellant had complied with the conditions imposed by the Sessions Court under Section 437A of the CrPC and that the stay order operated as if the discharge had never occurred. The appellant’s counsel further contended that "the grant of stay to the discharge order would virtually amount to allowing the revision application without examining the merits or demerits of the discharge order."

On behalf of the State, Additional Solicitor General Satya Darshi Sanjay argued that there was substantial evidence against the appellant, including CCTV footage, call detail records, and witness testimonies. He submitted that the Sessions Judge had disregarded crucial material while passing the discharge order and that the High Court was within its powers under Sections 397 and 401 of the CrPC to stay the order. He further argued that "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."

The son of the deceased, who was a respondent in the case, also made submissions, referring to judicial precedents and contending that once a revision application against discharge is admitted, the accused's status is reinstated. He referred to State of Uttar Pradesh v. Poosu & Ors, stating that "as soon as the High Court on perusing a petition of appeal against an order of acquittal, considers that there is sufficient ground for interfering and issuing process to the respondent, his status as an accused person and the proceedings against him, revive."

The Supreme Court examined the scope of revisional jurisdiction under Sections 397 and 401 of the CrPC. It stated that while the High Court has broad powers in revision cases, a stay on a discharge order should only be granted in exceptional circumstances. The court stated that "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."

Regarding the High Court's power to stay discharge orders, the Supreme Court observed that such orders should not be granted ex-parte as they have significant consequences. It referred to Parvinder Singh Khurana v. Directorate of Enforcement, where it was held that bail orders should not be stayed except in rare cases. Applying similar reasoning, the court stated that "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."

On the issue of the High Court's direction requiring the appellant to surrender, the Supreme Court found that this order was passed under the incorrect assumption that the stay on discharge automatically revived the status of the accused. The judgment stated that "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 Supreme Court also addressed the application of Section 390 of the CrPC, which allows the High Court to order the arrest of an accused in an appeal against acquittal. It held that this provision should be applied cautiously in discharge cases. The court stated that "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."

On examining the facts, the Supreme Court noted that the ex-parte stay order on discharge should not have been passed. It stated that "the consequences of such an order are very drastic as alluded to hereinabove. Hence, the ex-parte order of stay is entirely illegal. Consequently, the second impugned order deserves to be set aside."

In its final directives, the Supreme Court quashed the High Court’s orders dated October 21, 2023, and November 4, 2024. The appellant was directed to appear before the Sessions Court within four weeks and furnish bail under Section 390 of the CrPC, ensuring his availability for the revision proceedings.

The court stated that "if the appellant fails to comply with the above directions, he shall be forthwith taken into custody and sent to judicial custody till the disposal of the revision application." The Sessions Court was instructed to impose necessary conditions to ensure the appellant’s cooperation with the High Court in hearing the revision application.

The court concluded by stating that "the High Court will decide the revision application without being influenced by any observations made in this judgment."

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

Neutral Citation: 2025 INSC 281

Case Number: Criminal Appeal Nos. 536-537 of 2025

Bench: Justice Abhay S. Oka, Justice Ujjal Bhuyan

[Read/Download Judgment]