Stay on discharge in criminal cases only in rare, exceptional circumstances: Supreme Court

New Delhi: The Supreme Court has said the revisional court can stay the order of discharge only in rare and exceptional cases where the order of discharge is ex-facie perverse.

A bench of Justices Abhay S Oka and Ujjal Bhuyan said such an extreme and drastic order carried grave consequences of curtailing liberty of the accused. The court also said the order of discharge stood on a higher pedestal than the orders of acquittal and bail.

The bench set aside the Delhi High Court's orders of October 21, 2023, and November 4, 2024, which stayed discharge of Sudershan Singh Wazir in a case of murder of National Conference MLC and Chairman of Jammu and Kashmir Gurudwara Prabandhak Committee.

Senior advocate Sidharth Luthra for the appellant submitted the High Court ought not to have stayed the order of discharge, as its consequence is that the trial will proceed against the appellant, though he has been discharged. He submitted that unless the order of discharge is set aside, the trial cannot proceed.

He submitted that the appellant has been discharged for the cogent reasons recorded and that the order cannot be nullified by granting a stay. He said that the stay to the discharge order would virtually amount to allowing the revision application without examining the merits or demerits of the discharge order.

Opposing the submission, Delhi police led by Additional Solicitor General Satya Darshi Sanjay, said a strong prima facie case was made out to proceed on the basis of the charge sheet filed against the appellant, yet the Sessions Judge has passed an order of discharge.

He pointed out that it is a very serious case of murder of a former Member of the Legislative Council of Jammu and Kashmir and the Chairman of Jammu and Kashmir Gurudwara Prabandhak Committee. He submitted that apart from the CCTV footage, there is evidence of CDR and eye-witnesses.

The court, however, said with the stay, 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, the court said.

"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," the bench said, in its judgment on February 28, 2025.

The court also pointed out 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.

As the power of the court to stay the order granting bail can be exercised only in rare and exceptional cases, the bench said a discharged accused even stands on a still higher pedestal than an accused released on bail.

While 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. This normal rule should apply all the more to cases where the challenge is to the order of discharge, as the order of discharge is on a higher pedestal than an order of acquittal, the bench said.

"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 court said.

The court relied upon Parvinder Singh Khurana Vs Directorate of Enforcement (2024), to point out 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," it said.