Discharge Orders: When Should High Courts Stay Them? Supreme Court Balances Liberty and Justice in Sudershan Singh Wazir Case, Emphasizing Restraint and Fair Hearing.

Court: Supreme Court of India.

Case Name: SUDERSHAN SINGH WAZIR vs. STATE (NCT OF DELHI).

Citation: 2025 INSC 281 (Reportable)

Factual Aspects

The case of Sudershan Singh Wazir v. State (NCT of Delhi) revolves around an appeal against the High Court's order to stay a discharge order passed by the Additional Sessions Judge.

The appellant, Sudershan Singh Wazir, was accused in connection with a First Information Report (FIR) for offences punishable under Sections 302, 201, and 34 of the Indian Penal Code (IPC), along with Section 120B IPC read with 25, 27 of the Arms Act.

The Additional Sessions Judge discharged Wazir, subject to him furnishing a personal bond.

The High Court of Delhi stayed this discharge order and directed Wazir to surrender to judicial custody, leading to the appeal before the Supreme Court.

Submissions

Shri Siddharth Luthra, the learned senior counsel appearing for the appellant, contended that the High Court should not have stayed the discharge order, as it effectively allows the trial to proceed against a discharged individual. He argued that the stay nullifies the discharge without examining its merits.

Shri Satya Darshi Sanjay, the learned Additional Solicitor General (ASG) appearing for the first respondent-NCT of Delhi, argued that there was a strong prima facie case against the appellant, particularly concerning the murder of a former Member of the Legislative Council of Jammu and Kashmir. He submitted that the discharge order was perverse and that the High Court has the power to stay the order under Sections 397 and 401 of the CrPC.

Shri Arjun Deewan, the learned counsel appearing for the fifth respondent, relied on the Constitution Bench decision in State of Uttar Pradesh v. Poosu & Ors, arguing that the appellant's status as an accused revives once a revision application against the discharge order is admitted.

Revisional Jurisdiction of the High Court

The Supreme Court examined the revisional powers of the High Court, governed by Sections 397 and 401 of the CrPC. These sections correspond to Sections 438 and 442 respectively, of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Section 401 grants the High Court the powers of an 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.

The court addressed the applicability of Section 390 of the CrPC, which pertains to the arrest of an accused in an appeal from acquittal, to revisions against discharge orders. It affirmed that this section can be invoked, allowing the High Court to direct the arrest and production of the discharged accused.

Order of Discharge

The court considered the effect of a discharge order under Section 227 of the CrPC. It emphasized that a discharge order signifies that there is no sufficient ground for proceeding against the accused. Upon discharge, the person ceases to be an accused and is set at liberty.

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

Power to Stay the Order of Discharge

The Supreme Court noted that staying a discharge order is a drastic measure that curtails the liberty granted to the accused. It stated that such a stay is akin to granting final relief prematurely, as it allows the trial to proceed.

The court held that it is only in rare and exceptional cases where the order of discharge is ex-facie perverse that the revisional Court can stay that order. Such an order should be passed only after giving an opportunity of being heard to the accused.

The court referred to its decision in Parvinder Singh Khurana v. Directorate of Enforcement, drawing an analogy between staying bail orders and staying discharge orders.

Section 390 of CrPC

The court clarified that under Section 401(1) of the CrPC, the revisional Court can exercise power under Section 390.

When a revision application challenging the order of discharge is admitted for hearing, the High Court may exercise power under Section 390 by directing the person discharged to appear before the Trial Court and directing the Trial Court to admit him to bail on appropriate terms and conditions.

Rationale

  1. Individual Liberty: The Supreme Court prioritizes individual liberty, emphasizing that an order staying a discharge order is a drastic measure that curtails the freedom granted to the accused.
  2. Presumption of Innocence: The court recognizes that a discharged accused stands on a higher pedestal than an accused released on bail, further strengthening the presumption of innocence.
  3. Rare and Exceptional Cases: Staying a discharge order should only occur in rare and exceptional cases where the order is ex-facie perverse, ensuring that the power is not exercised lightly.
  4. Opportunity to be Heard: The accused must be given an opportunity to be heard before a stay order is passed, adhering to principles of natural justice.
  5. Normal Rule of Bail: When exercising power under Section 390 of the CrPC, the normal rule is that the acquitted accused should not be committed to custody, and a direction should be issued to admit him to bail.

Judgment in the Present Case

The Supreme Court found the High Court's ex-parte stay order to be illegal because the appellant was not given an opportunity to be heard.

The Court quashed both the stay order and the subsequent order directing the appellant's surrender.

The Court directed the appellant to appear before the Sessions Court within four weeks to furnish bail, effective until the disposal of the revision application.

The Court instructed the High Court to decide the revision application without being influenced by any observations made in the Supreme Court's judgment.

Section 437A of the CrPC

The Sessions Court exercised power under Section 437A of the CrPC, which requires the accused to execute bail bonds with sureties to appear before the higher court during appeals or petitions against the judgment of the respective court.

Excerpt

“As Section 390 has been made expressly applicable to Section 401, the power under Section 390 can be exercised in a revision against an order of discharge.”

“After an accused is discharged under Section 227 of the CrPC, he is set at liberty as he ceases to be an accused.”

“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.”

“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.”

Points to Remember

  1. Stay on Discharge Orders: High Courts should exercise caution and restraint when staying discharge orders passed by lower courts.
  2. Individual Liberty: The liberty of an individual who has been discharged should not be curtailed lightly.
  3. Ex-parte Orders: Ex-parte stay orders of discharge are generally disfavored and should only be passed in rare and exceptional cases.
  4. Opportunity to be Heard: The accused must be given an opportunity to be heard before any stay is granted.
  5. Section 390 CrPC: While Section 390 of the CrPC can be invoked in revisions against discharge orders, bail should be the norm, not jail.

Conclusion

The Supreme Court's judgment in Sudershan Singh Wazir v. State (NCT of Delhi) clarifies the scope and limitations of the High Court's revisional powers concerning discharge orders. The judgment underscores the importance of individual liberty, the presumption of innocence, and the need for a fair hearing, thereby providing crucial guidance for lower courts in balancing the interests of justice with the protection of individual rights.


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