A) ABSTRACT / HEADNOTE

Sudershan Singh Wazir v. State (NCT of Delhi) & Ors., Criminal Appeal Nos. 536–537 of 2025 (Supreme Court, 28 Feb. 2025) examines whether a revisional court exercising powers under ss.397 & 401 CrPC can stay an order of discharge made under s.227 CrPC, and what safeguards must attend any such stay. The appellant, not named in the original FIR but arraigned in a later supplementary charge-sheet under ss.302, 201, 34, 120B IPC and ss.25, 27 Arms Act, was discharged by the Sessions Judge and released after furnishing bond.

The State filed revision in the High Court which, by an ex parte interim order, stayed the discharge; thereafter the High Court directed surrender of the appellant to custody. The Supreme Court held that stay of a discharge order is a drastic step because a discharge places the person on a higher pedestal than even an acquittal. A stay that nullifies the practical effect of discharge ordinarily cannot be an interim relief in aid of final relief; it should be reserved for rare and exceptional cases where the discharge is ex facie perverse and only after affording the accused an opportunity to be heard.

Instead of arrest/ custody, the Court emphasised s.390 CrPC remedies direction to appear and be admitted to bail as the proper protective device while revision is heard. The impugned ex parte stay and consequent surrender order were quashed; the appellant was directed to furnish bail under s.390 and the High Court to decide the revision on merits.

Keywords: Revisional court; Order of discharge; Stay of discharge order; Section 390 CrPC; Liberty and bail.

B) CASE DETAILS

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The case arises from a high-stakes homicide prosecution where the appellant, added in the 3rd supplementary charge-sheet, was discharged by the Sessions Judge under s.227 CrPC after hearing both sides and the record. The State invoked the High Court’s revisional jurisdiction under ss.397 & 401 CrPC and sought stay of the discharge; the High Court granted an ex parte interim stay while admitting the revision and later ordered the appellant’s surrender on the ground that the stay rendered the earlier discharge ineffective.

The principal legal controversy concerned the scope and limits of a revisional court’s power to suspend or stay an order of discharge and the procedural safeguards (opportunity to be heard, moulding interim relief) that protect the grave liberty interest involved. The Supreme Court placed the dispute in doctrinal context: it contrasted discharge (threshold denial of sufficient ground to try) with acquittal and bail, noting that discharge confers a legal status higher than acquittal because it prevents framing of charge at the prima facie stage.

The judgment tested when interim measures that restore the accused’s status as an accused may be justified and re-emphasised the rule that liberty once restored cannot be lightly taken away unless exceptional circumstances exist and minimal coercive measures (e.g., bail directions under s.390) are insufficient. The Court also read and harmonised s.390 with s.401—permitting use of arrest/production powers but insisting bail ordinarily be preferred.

D) FACTS OF THE CASE

The FIR concerned the murder of a prominent public figure; the appellant was not named in the original FIR but was included in the 3rd supplementary charge-sheet for serious offences including murder (s.302 IPC) and arms charges. The Sessions Judge, after consideration of the record and submissions, concluded there was no sufficient ground for proceeding and discharged the appellant on 20 October 2023, directing release upon furnishing a personal bond of Rs.25,000 and one surety of like amount (bond said to be under s.437A CrPC mechanics to ensure presence).

The State filed revision in the Delhi High Court challenging the discharge and sought interim stay. The High Court issued an ex parte stay of discharge while issuing notice (21 Oct. 2023) and repeatedly extended it. The State then applied under s.390 r/w s.482 CrPC seeking direction that the appellant surrender because the stay nullified the discharge; the High Court on 4 Nov. 2024 directed immediate surrender to custody, allowing liberty to apply for bail thereafter.

On appeal to the Supreme Court, the second impugned surrender order was stayed by this Court when notice issued; ultimately the Supreme Court examined the correctness of the ex parte stay and surrender direction and the proper interplay between s.227 discharge, s.390 arrest/bail powers, and revisional jurisdiction.

E) LEGAL ISSUES RAISED

i. Whether a revisional court can stay an order of discharge granted under s.227 CrPC as an interim measure pending revision.
ii. Whether an ex parte stay of discharge and an order requiring the discharged person to surrender is constitutionally and procedurally permissible without hearing the accused.
iii. What interim measures are appropriate to secure the accused’s presence while protecting liberty when a revision against discharge is pending.
iv. How s.390 CrPC (arrest in appeals from acquittal) applies by analogy to revisions of discharge under s.401 CrPC.

F) PETITIONER / APPELLANT’S ARGUMENTS

i. Learned senior counsel argued that the discharge order was a reasoned judicial determination that the record lacked sufficient material; its stay effectively nullifies that judicial determination and restores the appellant to accusatory status without adjudication.
ii. The appellant had complied with the Sessions Court’s bond direction (practical presence safeguards) and thus there was no need to deprive him of liberty.
iii. Interim stay to defeat discharge equates to deciding the revision on the merits; such relief cannot be granted as an adjunct to maintain the status quo.

G) RESPONDENT’S ARGUMENTS

i. The State urged that prima facie material (CCTV, CDR, eyewitnesses) demonstrated that the Sessions Judge erred and that the High Court had power under ss.397 & 401 and by reference to s.390 to stay the discharge and secure custody to prevent interference with the process or ensure availability for trial.
ii. Reliance placed on precedents permitting restoration of accused status when higher courts find sufficient ground and the necessity to avoid frustration of justice if accused absconds or tampers with evidence.

H) JUDGEMENT 

The Court held that while the High Court has revisional powers including those exercisable under s.390 (by virtue of s.401(1)), the power to stay a discharge is a drastic interference with liberty and must be sparingly used. A discharge places the person beyond the reach of trial at the threshold; it is superior to even an acquittal in legal effect. Therefore, an interim stay that effectively reverses the discharge and restores the accused to custody is not an interim order in aid of final relief unless the discharge is ex facie perverse. Even in exceptional cases, the accused must be afforded an opportunity to be heard before an order of such consequence is passed.

The Court explained that s.390’s objective is to secure presence for sentencing/appeal and hearing; normally it results in admission to bail rather than remand to custody because bail is the rule. Applying these principles, the Court found the High Court’s first impugned ex parte stay illegal and the subsequent surrender order unsustainable. The Supreme Court therefore quashed both impugned orders, directed the Sessions Court to take the appellant on appearance and admit him to bail under s.390 (or equivalent bond) effective until disposal of the revision, and left the High Court free to decide the revision expeditiously without being influenced by this opinion.

The Court imposed a cooperation condition and permitted cancellation of bail if the appellant obstructs early disposal. Authorities such as State of U.P. v. Poosu, Amin Khan, Parvinder Singh Khurana and Mahesh Kariman Tirki were considered and harmonised to underline the exceptionalism required before interfering with liberty granted by discharge.

a. RATIO DECIDENDI

The controlling legal proposition is that a revisional court may stay an order of discharge only in rare and exceptional circumstances where the discharge is manifestly perverse and only after affording the discharged person an opportunity to be heard; ordinarily the appropriate protective interim relief is to direct appearance and grant bail under s.390 so that the accused’s presence and trial integrity are secured without depriving him of liberty. An ex parte stay of discharge is ordinarily impermissible because it nullifies the substantive right restored by discharge.

b. OBITER DICTA 

The Court observed in obiter that discharge is of higher dignity than bail and that the rule bail is the norm applies with greater force when s.390 powers are invoked; further, while revisional powers are broad, they cannot be exercised mechanically — a court must mould interim relief to avoid rendering the final relief nugatory. The opinion emphasised procedural fairness and prompt hearing where liberty is affected.

c. GUIDELINES 

i. Ex parte interim stay of discharge should be exceptional and supported by brief reasons.
ii. Accused must be given opportunity to be heard before stay affecting liberty.
iii. Prefer bail/direction to appear under s.390 rather than commitment to custody.
iv. High Court must mould interim relief so trial cannot proceed to make final revision outcome a fait accompli.
v. Courts may impose cooperation conditions and permit cancellation of bail only after hearing.

I) CONCLUSION & COMMENTS

The judgment robustly protects the liberty interest restored by a discharge order and clarifies doctrinal confusion on the revisional power to stay discharge. It demands judicial restraint and procedural fairness from revisional courts and furnishes practical safeguards (use of s.390 bail directions, requirement of hearing, and moulded interim relief).

For practitioners, the decision signals that States must establish strong, demonstrable grounds before seeking custodial restoration and that defence counsel should vigorously insist on hearing and bail as the default protective remedy. The decision also aligns with precedents emphasising that interim orders affecting liberty require heightened justification and recorded reasons. The Court’s balanced approach preserves the efficacy of revisional oversight while preventing erosion of the discharge remedy through premature and sweeping interim orders.

J) REFERENCES

a. Important Cases Referred

1. Sudershan Singh Wazir v. State (NCT of Delhi) & Ors., Criminal Appeal Nos. 536–537 of 2025, [2025] 2 S.C.R. 1416 ; 2025 INSC 281.

2. State of Uttar Pradesh v. Poosu & Ors., (1976) 3 SCC 1. (referred in judgment).

3. Amin Khan v. State of Rajasthan & Ors., (2009) 3 SCC 776.

4. State of Maharashtra v. Mahesh Kariman Tirki & Ors., (2022) 10 SCC 207.

5. Parvinder Singh Khurana v. Directorate of Enforcement, 2024 SCC OnLine SC 1765 : 2024 INSC 546.

b. Important Statutes Referred

1. Code of Criminal Procedure, 1973: ss.227, 228, 390, 397, 401, 437A.

2. Indian Penal Code, 1860: ss.302, 201, 34, 120B.

3. Arms Act, 1959: ss.25, 27.

4. Bharatiya Nagarik Suraksha Sanhita, 2023: corresponding ss.438, 442 (noted).