A Discharged Accused Stands on a Higher Pedestal Than One Out on Bail – Stay of Discharge Should Be Granted Only in Rare Cases: Supreme Court

"A Stay on Discharge Virtually Amounts to Allowing the Revision Without Deciding It on Merits" - Supreme Court of India set aside the Delhi High Court’s order staying the discharge of an accused in a murder case and directing his surrender. In Sudershan Singh Wazir v. State (NCT of Delhi) & Ors., a bench comprising Justice Abhay S. Oka and Justice Ujjal Bhuyan held that a stay on a discharge order is an extraordinary measure, to be exercised only in rare and exceptional cases where the order is ex-facie perverse.

The Court underscored that an accused who has been discharged "ceases to be an accused in the eyes of law", and a stay of the discharge "deprives the accused of liberty and virtually amounts to allowing the revision application without deciding it on merits." The ruling serves as a significant precedent in safeguarding personal liberty and restricting the discretionary powers of High Courts in criminal revisions.

The case arose from a murder investigation where the appellant, Sudershan Singh Wazir, was implicated under Sections 302, 201, 34, and 120B of the IPC, along with Sections 25 and 27 of the Arms Act. His name was not initially included in the FIR, but he was later arraigned in the third supplementary chargesheet.

On October 20, 2023, the Additional Sessions Judge discharged Wazir from all charges, concluding that there was insufficient material to frame charges against him. The discharge order was conditional upon furnishing a personal bond of ₹25,000 with one surety, after which Wazir was released from custody the same day.

The State (NCT of Delhi) challenged the discharge before the Delhi High Court. On October 21, 2023, while admitting the revision, the High Court stayed the discharge order ex-parte, meaning the accused was not given a chance to be heard. Subsequently, on November 4, 2024, the High Court directed Wazir to surrender, reasoning that the stay of the discharge revived his status as an accused.

The Supreme Court had earlier intervened and stayed the High Court’s order directing surrender. In this final judgment, the apex court has now conclusively ruled in favor of the appellant.

"A Discharge Order Renders a Person Free From All Accusations—It Cannot Be Stayed Lightly"
The Supreme Court delved into the legal status of a discharged accused, emphasizing that discharge stands on a higher legal pedestal than bail.

"A discharged accused is not merely a person out on bail. He is no longer an accused in the eyes of the law. The trial court, after examining the case records and hearing both sides, has concluded that there is no sufficient ground to proceed. Staying such an order deprives the person of liberty without justification."

The Court further clarified that "when an accused is discharged under Section 227 CrPC, it means the prosecution has failed to provide sufficient material to even frame a charge. The person is thus released at the threshold, and forcing him to face trial through a stay order negates the entire purpose of discharge."

"The Power to Stay a Discharge Order Must Be Exercised in the Rarest of Rare Cases"
Addressing the scope of revisional jurisdiction under Sections 397 and 401 CrPC, the Court strongly criticized the casual grant of a stay on discharge orders.

"An order staying the discharge is a drastic order that curtails liberty. It effectively allows the revision application without hearing it on merits. Such a stay should only be granted in exceptional cases where the discharge order is ex-facie perverse."

The judgment made it clear that "an interim order can only be granted if it aids the final relief sought. Staying a discharge order does not aid final relief; rather, it pre-empts the revision's outcome, rendering the entire process meaningless."

The Court further held that "if the revision ultimately fails, the accused would have been put through unnecessary hardship, facing trial for years despite being legally discharged."

"An Ex-Parte Stay of Discharge Violates Due Process and Article 21"
One of the most critical aspects of the judgment was the illegality of the High Court’s ex-parte stay. The Supreme Court ruled that an order affecting personal liberty cannot be passed without giving the affected party a chance to be heard.

"Liberty is too precious to be curtailed in a mechanical manner. An ex-parte order staying discharge violates due process and is contrary to Article 21 of the Constitution."

The Court condemned the practice of staying discharge orders without prior notice to the accused, stating that "the accused must be given an opportunity to argue against such a drastic measure before any stay is granted."

"Section 390 CrPC Cannot Be Used to Take a Discharged Accused into Custody"
The State argued that once the revision was admitted, the accused’s status was restored, allowing his surrender under Section 390 CrPC. The Supreme Court rejected this argument, clarifying the limited scope of Section 390 CrPC.

"Section 390 CrPC applies to appeals against acquittal, where the Court may direct the accused to appear and furnish bail. In a revision against discharge, this provision can only be invoked to ensure the presence of the discharged accused—not to take him into custody."

The Court reaffirmed the well-established legal principle that "bail is the rule, jail is the exception", emphasizing that "an acquitted or discharged person should not be placed in custody unless there are extraordinary reasons justifying such action."

Concluding its judgment, the Supreme Court set aside both orders passed by the Delhi High Court on October 21, 2023, and November 4, 2024. The Court directed:

•    "The High Court shall now decide the revision application on merits, uninfluenced by our observations."
•    "The appellant must appear before the Sessions Court within four weeks and furnish fresh bail under Section 390 CrPC."
•    "If the appellant fails to comply, he shall be taken into custody and remain there until the revision is decided."
•    "The High Court may cancel the appellant’s bail if it finds that he is not cooperating in the expeditious disposal of the revision."
•    The Supreme Court emphasized that "liberty granted under a discharge order cannot be lightly interfered with. A stay of such an order should be an exception, not the rule."

This ruling establishes an important precedent by affirming that:

•    "A discharged accused enjoys higher protection than an accused out on bail. Once discharged, he ceases to be an accused and cannot be arbitrarily forced to face trial."
•    "Stay of a discharge order is an extraordinary measure, to be exercised only in rare and exceptional cases where the discharge is ex-facie perverse."
•    "Personal liberty cannot be curtailed through ex-parte orders. The accused must be given an opportunity to be heard before a stay is granted."
•    "Section 390 CrPC cannot be used to take a discharged accused into custody—only to ensure his presence."
With this judgment, the Supreme Court has sent a clear message: discharge orders are not to be stayed lightly, and personal liberty cannot be compromised without compelling reasons.

Date of Decision: February 28, 2025