Introduction
The current Indian judicial landscape suffers from a large backlog of criminal cases at various stages, including the appellate stages. During the appellate proceedings it is often the practice for the Courts to grant interim relief in order to solve time bound issues so as to aid the final decision of the Court. However, the present case may also show the double edged sword of the appellate system, wherein the freedom and liberty of an individual granted by a court is suspended through the process of an interim order rather than a final decision.

A division bench of the Supreme Court in Sudershan Singh Wazir versus State (NCT of Delhi) & Ors ¹ dealt with a case wherein the High Court passed an interim stay on the order of discharge of the Applicant thereby remanding him to custody and encroaching on his freedom.

Facts
The Appellant was arraigned as an accused in connection with offences punishable under Sections 302, 201, 34, 120B of the Indian Penal Code, 1860 read with Sections 25 and 27 of the Arms Act, 1959. The Appellant was not arraigned as a part of the original FIR but vide a third supplementary charge sheet filed in the matter.

The Appellant in custody preferred a discharge application before the Sessions Court and the same was allowed along with a direction to the Appellant to execute a personal bond before the Jail Superintendent to secure his release.

That upon the Appellant being released the Respondent No. 1 preferred a criminal revision application before the High Court of Delhi. As a part of the revision application, the Respondent No. 1 prayed for the discharge of the Appellant to be stayed. The High Court of Delhi allowed the prayer for stay on the discharge vide an ex - parte Order dated October 21st, 2023. Thereafter the Respondent No. 1 preferred an application seeking a direction to the Appellant to surrender to judicial custody. The High Court of Delhi vide Order dated November 4th, 2024 directed the Appellant to surrender to judicial custody as it opined that the Appellant could not take advantage of the discharge application once it has been stayed, and that if the custody of the Appellant could not be secured the first order of stay would become ineffective.

Therefore, the Appellant approached the Supreme Court challenging the Order of stay passed on October 21st, 2023.

Submissions
Appellant

• The Appellant submitted that the High Court ought not to have stayed the discharge application as it would allow the Trial Court to proceed with the trial against the Appellant despite the same being discharged.
• The Appellant further submitted that the stay on discharge granted would amount to virtually allowing the revision application without examining the merits or demerits of the discharge application.
• The Appellant submitted that the he had complied with the directions issued by the Sessions Court by furnishing bail under Section 437A of the CrPC, 1973 and therefore his presence was secured if required to face trial.
• The Appellant relied on the 154th Report of the Law Commission of India by which recommendation was made to incorporate Section 437A into the CrPC, 1973, which states:
  437A. Bail to require accused to appear before next appellate Court.-(1) Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months.

Respondent No. 1

• The Respondent No. 1 i.e. State (NCT of Delhi) submitted that there was a clear prima facie case against the Appellant and that the offences were of a serious and grave nature. The Respondent No. 1 submitted that apart from CCTV footage, there was CDR and eye witness evidence against the Appellant and therefore the order of discharge was perverse.
• The Respondent No. 1 further submitted that the High Court recorded that the decision of the Sessions Court was perverse and therefore had jurisdiction under Sections 397 and 401 of the CrPC, 1973, which empowered the High Court while dealing with a revision application to exercise all the powers of the Court of Appeal under Sections 386, 389, 390 and 391 of the CrPC, 1973 and hence had every justification to order the Appellant to be taken into custody.

Respondent No. 5

• The Respondent No. 5, the son of the victim, relied on the decisions of the Supreme Court in State of Uttar Pradesh v Poosu & Ors ²wherein it was held that :
  “10. This is the rationale of Section 427. 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 question of judging his guilt or innocence in respect of the charge against him, once more becomes sub judice.”

The Respondent No. 5 further supported their submission on revival of the status of the accused relied on Amin Khan v State of Rajasthan and Ors ³ as well as the case of State of Maharashtra v Mahesh Kariman Tirki and Ors. ⁴ wherein it was held that the High Court can stay the order of discharge.

Considerations of the Court
On the Revisional Jurisdiction of the High Court :

• The Division bench of the Supreme Court delved into a detailed analysis of Section 397 of the CrPc, 1973 that is “Calling for records to exercise powers of revision” and Section 401 of the CrPc, 1973 that is the High Courts Power of Revision and their corresponding Sections in the BNSS, 2023. The Supreme Court observed that Section 401(1) of the CrPC, 1973 gives the High Court the right to exercise powers under Section 390 of the CrPC, 1973, which allows the High Court to issue a warrant directing the accused to be arrested and brought before it pending disposal of the appeal from acquittal or admit him to bail. The Division Bench of the Supreme Court in the present matter observed that : 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. After the accused is produced, there is a discretion in the Court to either commit him to prison or admit him to bail. 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.

On power to stay discharge

• The Division Bench of the Supreme Court observed 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. As a result of the order staying the order of discharge, 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 consequence of depriving an accused of the liberty granted under the discharge order.
• The Division Bench of the Supreme Court however observed that the interim order can only be sustained if it is in aid of the final relief sought in the main case. However, since the interim relief of stay on discharge would amount to the Accused facing trial making the discharge infructuous and therefore it cannot be said to be in aid of final relief.
• The Division Bench however clarified that it is only in the most exceptional of cases that the order of discharge is ex - face perverse satisfying the revisional Court in staying the same. The Division bench further opined that : “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.”
• The Division Bench of the Supreme Court relied on its decision in Parvinder Singh Khurana vs. Directorate of Enforcement ⁵ wherein it dealt with the power of the Court to grant a stay on bail:
  
  “... However, an order granting a stay to the operation of the order granting bail during the pendency of the application for cancellation of bail should be passed in very rare cases.
  
  An order granting bail can be stayed by the Court only in exceptional cases when a very strong prima facie case of the existence of the grounds for cancellation of bail is made out. The prima facie case must be of a very high standard. By way of illustration, we can point out a case where the bail is granted by a very cryptic order without recording any reasons or application of mind. One more illustration can be of a case where material is available on record to prove serious misuse of the liberty made by the accused by tampering with the evidence, such as threatening the prosecution witnesses. If the High Court or Sessions Court concludes that an exceptional case is made out for the grant of stay, the Court must record brief reasons and set out the grounds for coming to such a conclusion.
  
  13. An ex-parte stay of the order granting bail, as a standard rule, should not be granted. The power to grant an ex-parte interim stay of an order granting bail has to be exercised in very rare and exceptional cases where the situation demands the passing of such an order. While considering the prayer for granting an ex-parte stay, the concerned Court must apply its mind and decide whether the case is very exceptional, warranting the exercise of drastic power to grant an ex-parte stay of the order granting bail. Liberty granted to an accused under the order granting bail cannot be lightly and casually interfered with by mechanically granting an ex-parte order of stay of the bail order.”
• The Division Bench of the Supreme Court in the present matter noted with respect to the Parvinder Singh Khurana decision that the order of discharge stands on a higher pedestal than that granting bail and therefore the law laid down on grant of stay on discharge must be stricter and more rigorous.
• The Division Bench of the Supreme Court distinguished the case from its decision in Mahesh Kariman Tikki as the same was an appeal against conviction which is drastically different from discharge.

On the Application of Section 390 of the CrPC, 1973

• The Division Bench of the Supreme Court while reviewing the applicability of Section 390 of the CrPC, 1973 to the present case held that :
  “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 by directing the Trial Court to admit him to bail on appropriate terms and conditions. If such an order is passed after the admission of the revision application against the order of discharge, it is a sufficient safeguard for ensuring 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. If the discharge order is eventually set aside, such an order under Section 390 of the CrPC passed in an admitted revision application against the discharge order will be in the aid of final relief. As held earlier, 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.
  
  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”

Decision

• The Division Bench of the Supreme Court observed that the Appellant was given no opportunity to be heard before the High Court on the stay of the discharge and that the second order of the High Court merely stated that due to the stay not being in force the Appellant was to return to custody.
• The Division Bench of the Supreme Court while allowing the appeal directed the Appellant to furnish bail under Section 390 of the CrPC, 1973, holding that:
  In our view, the ex-parte order of stay of the order of discharge should not have been passed by the High Court. 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.

Conclusion
This judgement serves as a crucial precedent in safeguarding the liberty of individuals discharged from criminal proceedings. The case underscores the principle that an interim stay on a discharge order should only be granted in the rarest and most exceptional circumstances. The ruling reiterates that such an order directly impacts an individual’s fundamental rights and should not be issued without due consideration and adequate reasoning.

The judgment clarifies that staying a discharge order effectively negates the discharge itself, leading to a scenario where the accused is compelled to face trial despite having been found not liable by the lower court. The Supreme Court, therefore, emphasized that an accused should not be deprived of their liberty unless there is an exceptionally strong prima facie case warranting such an action.

Moreover, the Supreme Court distinguished this case from precedents where stays were granted in appeals against convictions. It also held that an order of discharge stands on an even higher pedestal than bail, and hence, the threshold for granting a stay must be even more rigorous.

This decision strengthens procedural safeguards and reiterates that judicial discretion must be exercised judiciously, particularly when it concerns an individual's liberty. It serves as a reminder that while courts must ensure correct decision making through the appellate structure, they must also prevent the misuse of interim orders to undermine principles of natural justice.

By setting a high threshold for granting stays on discharge, the Supreme Court has struck a balance between the state’s interest in prosecuting crimes and the individual’s right to freedom, reinforcing the fundamental tenets of criminal jurisprudence in India.

By - Parshva Shah