Source: Supreme Court 

Why in News? 

A bench of Justice Ujjal Bhuyan and Justice Abhay S Oka held that discharge order should be stayed only in exceptional circumstances.   

• The Supreme Court held this in the case of Sudershan Singh Wazir v. State (NCT of Delhi) (2025). 

What was the Background of Sudershan Singh Wazir v. State (NCT of Delhi) (2025) Case?   

• The Appellant was arraigned as an accused in connection with offences under Sections 302, 201, and 34 of the Indian Penal Code, 1860 (IPC). 
• Initially, the Appellant was not named in the First Information Report (FIR). 
• The Appellant was formally charged in the 3rd Supplementary Chargesheet under Sections 302, 201, 34, 120B of IPC and Sections 25, 27 of the Arms Act. 
• On 20th October 2023, the Additional Sessions Judge discharged the appellant from all offences, subject to a personal bond of Rs.25,000/- with one surety. 
• The appellant was released from custody on the same day after furnishing the bond. 
• The NCT of Delhi (first respondent) filed a revision application challenging the discharge order in the Delhi High Court. 
• On 21^st October 2023, the High Court Single Judge stayed the discharge order ex-parte and extended this stay periodically. 
• The first respondent filed an application seeking the appellant's surrender to judicial custody, arguing that he couldn't benefit from the stayed discharge order. 
• On 4^th November 2024, the High Court directed the appellant to surrender before the Trial Court, with liberty to apply for bail thereafter. 
• On 11^th November 2024, the Supreme Court stayed the High Court's surrender order while allowing the High Court to proceed with hearing the revision application. 

What were the Court’s Observations? 

• The question in this case is whether the power to grant a stay can be exercised for staying an order of discharge. 
• It is to be noted that as per Section 390 of Criminal Procedure Code, 1973 (CrPC), when an appeal against the order of acquittal is filed, the High Court has the power to order the arrest of the accused and his production before it or any subordinate court. 
• As Section 390 has been made applicable to Section 401, the power under Section 390 can be exercised in a revision against order of discharge. 
• Difference between discharged person and the accused person: 
  •  After considering the material on the charge sheet and the submissions of parties, if the Court concludes that there is no sufficient ground for proceeding against the accused, the Court must discharge the accused for the reasons recorded. 
  • 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. Therefore, he is discharged at the threshold. 
• The Court, after discussing the law on power to stay the order of discharge and Section 390 of CrPC held that ex parte order of stay of the order of discharge should not have been passed by the High Court. 
• Hence, the Court held that the ex parte order of stay is illegal. 
•  The impugned order dated 21st October 2023, and 4th November is quashed and set aside. 

 What is the Scope of Power to Stay the Order of Discharge?  

• 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. 
• The grant of stay to the order of discharge amounts to the grant of final relief, as the trial can proceed against him. 
• 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. 
• Therefore, the order staying the order of discharge by way of interim relief cannot be said to be in the aid of final relief. 
• It is only in rare and exceptional cases where the order of discharge is ex-facie perverse that the revisional Court can take the extreme step of staying that order. 
• However, such an order should be passed only after giving an opportunity of being heard to the accused. Moreover, while granting the stay, the Court must mould the relief so that the trial does not proceed against the discharged accused. 
• If the trial against a discharged accused proceeds, even before the revision application against an order of discharge is decided, the final outcome of the revision will become fait accompli. 

 What is Section 390 of CrPC? 

• Section 390 of CrPC provides for the following: 
  • When an appeal is presented under Section 378, the High Court has the authority to issue a warrant for the arrest of the accused. 
  • The accused must be brought before the High Court or any subordinate Court. 
  • The Court before which the accused is presented has the discretion to: 
    • Commit him to prison pending the appeal's disposal. 
    • Grant him bail as per the circumstances. 
• The object of Section 390 of the CrPC is that if ultimately the order of acquittal is converted into the order of conviction, the accused must be available for undergoing sentence 
• The second object of Section 390 is that when an appeal against acquittal is finally heard, the accused's presence at the hearing can be secured. 
• Therefore, there is a power vested in the High Court to arrest an acquitted accused and bring him before it or the Trial Court. The object is that the accused remains under the jurisdiction of the Court dealing with the appeal against acquittal. 
• 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. 
• 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.