A) ABSTRACT / HEADNOTE

This analysis examines Sudershan Singh Wazir v. State (NCT of Delhi) & Ors., SLP (Crim.) arising from orders of the Delhi High Court that stayed an order of discharge and directed the discharged person to surrender pending revision. The Supreme Court considered:

(i) the scope of revisional powers under ss. 397 and 401 CrPC (and their counterparts in the Bharatiya Nagarik Suraksha Sanhita, 2023),

(ii) the legal nature and consequences of an order of discharge under s. 227 CrPC, and

(iii) whether a revisional court may stay an order of discharge (including by ex parte interim order) and, if so, the manner in which such relief must be moulded.

The Court emphasized that a discharge places a person on a higher pedestal than one merely on bail and that an order staying discharge is a drastic interference with liberty. Stay of discharge is permitted only in rare, exceptional cases where the discharge is ex facie perverse and even then only after affording the discharged person an opportunity to be heard; ordinarily the appropriate and proportionate interim relief in an admitted revision is to require appearance and bail under s. 390 CrPC rather than to nullify the discharge by an ex parte stay.

The Court quashed the High Court’s ex parte stay and the subsequent surrender direction, directed the Sessions Court to receive the appellant and fix bail effective until final disposal of the revision, and left the revision to be decided on merits.

Keywords: discharge, revisional jurisdiction, s. 390 CrPC, s. 227 CrPC, stay of discharge, liberty, ex-parte stay.

B) CASE DETAILS 

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The appeal arises from a sequence where an accused, not originally named in the FIR, was added by a supplementary charge-sheet and was thereafter discharged by the Sessions Judge under s. 227 CrPC and released on bond. The State filed revision before the High Court under ss. 397/401 challenging the discharge and prayed for a stay of the discharge order. The High Court, while issuing notice, passed an ex parte order staying the discharge; subsequently, on an application under s. 390 read with s. 482 CrPC, the High Court directed the appellant to surrender and be taken into custody, reasoning that the stay revived the accused’s status and that custody was necessary to secure the efficacy of the stay.

The appellant approached this Court against both the ex parte stay and the surrender direction. The Supreme Court’s engagement was focused on the limits of revisional power to stay a discharge, the proper interim measures available once a revision against discharge is admitted, and the protection of liberty guaranteed under Article 21 where interim relief if not carefully tailored produces irreversible practical consequences. The Court analysed statutory text (ss. 397, 401, 390, 227, 228, and 437A), prior precedent, the conceptual distinction between bail, acquittal and discharge, and the proportionality principle in interlocutory relief.

The Court stressed that a discharge extinguishes the accused status at threshold and is thus of higher sanctity than bail; accordingly, a stay that effectively nullifies discharge is a severe curtailment of liberty and can be ordered only in rare circumstances and with safeguards like an opportunity to be heard and moulded conditions (for example bail directions under s. 390) that preserve the practical utility of the revision without making the final remedy a fait accompli.

D) FACTS OF THE CASE

The facts are procedural and centre on classification of liberty rights after judicial discharge. The appellant was not named in the original FIR but was formally arraigned in the 3rd supplementary charge-sheet for offences including s. 302 IPC, s. 201 IPC, s. 34 IPC, s. 120B IPC read with ss. 25, 27 of the Arms Act, in a case involving the murder of a prominent public figure. On 20 October 2023 the Additional Sessions Judge considered charge-sheet material, heard submissions and discharged the appellant under s. 227 CrPC, recording reasons and directing personal bond and surety; the appellant was released that day.

The State filed a revision in the Delhi High Court challenging the discharge; while issuing notice, the High Court passed an ex parte interim order dated 21 October 2023 staying the discharge. That stay was repeatedly extended. The State then moved under s. 390 read with s. 482 CrPC seeking direction that the appellant surrender to custody because the stay rendered the discharge inoperative. On 4 November 2024 the High Court passed a detailed order holding the discharge stayed and directing immediate surrender and custody, albeit permitting later bail application.

The appellant challenged both impugned orders in the Supreme Court; this Court stayed the surrender direction upon notice and proceeded to decide legal issues regarding the validity and propriety of an ex parte stay of discharge and the correct interim regime. The Sessions Court had earlier obtained personal bond from the appellant under s. 437A CrPC at the time of discharge; the Supreme Court examined whether those bonds remained operative and ultimately directed fresh bail conditions under s. 390 to secure presence pending the revision.

E) LEGAL ISSUES RAISED

i. Whether a revisional court exercising jurisdiction under ss. 397 and 401 CrPC has power to stay an order of discharge and, if so, on what principles?
ii. Whether an ex parte interim stay of a discharge order is permissible as a standard practice?
iii. What interim reliefs are appropriate where a revision against an order of discharge is admitted — custody or bail under s. 390 CrPC?
iv. Whether an order staying discharge would be “in aid of final relief” or would operate as final relief and thus be impermissible as an interim measure when it deprives the accused of liberty?
v. What procedural safeguards (opportunity to be heard; moulding of relief) should be mandated before a revisional court stays a discharge?

F) PETITIONER / APPELLANT’S ARGUMENTS

i. The appellant’s counsel contended that the High Court erred in staying the discharge because such a stay undermines the reasons recorded by the Sessions Judge and effectively permits the revision to succeed without adjudication on merits.
ii. It was argued that the discharge, having been lawfully recorded and executed (with bond under s. 437A), removed the accused status and restored liberty; only if and when the discharge is set aside after hearing should trial proceed.
iii. Reliance was placed on the protective intent behind s. 227 CrPC and on jurisprudence recognising the sanctity of discharge; interim nullification by ex parte stay was portrayed as disproportionate and illegal.

G) RESPONDENT’S ARGUMENTS

i. The State urged that prima facie material in the charge-sheet, including CCTV, CDR and eyewitnesses, showed a strong case and that the Sessions Judge’s discharge was perverse, justifying immediate intervention.
ii. It relied on ss. 397 and 401 CrPC and the court’s power to exercise the powers of s. 390 (arrest/commitment or bail) to secure the accused’s presence and to prevent the order of discharge becoming a bar to effective prosecution.
iii. The State argued that once a revision is admitted, the accused’s status can be revived and an order of custody is a legitimate precaution to secure the ends of justice.

H) RELATED LEGAL PROVISIONS 

i. s. 227 CrPC — Discharge by Sessions Judge when insufficient ground to proceed.
ii. s. 228 CrPC — Framing of charge where grounds exist to presume commission.
iii. s. 390 CrPC — Arrest of accused in appeal from acquittal; power to commit to prison or admit to bail.
iv. s. 397 & s. 401 CrPC — Revisional jurisdiction of High Court; power to exercise Appellate powers including s. 390.
v. s. 437A CrPC — Bail bonds to secure appearance before next appellate court.
vi. Article 21, Constitution — Right to personal liberty (implicit in analysis).

I) JUDGEMENT

The Court began by parsing the statutory scheme: ss. 397 and 401 empower High Courts to call for records and to exercise appellate powers (including those under s. 390). It then contrasted the status conferred by discharge under s. 227 with that of bail or even acquittal: discharge at threshold means there is no sufficient ground to proceed, and the discharged person ceases to be an accused; such a status is on a higher pedestal than even an acquitted accused. Consequently, an order staying discharge has the severe effect of depriving the person of liberty granted by the Sessions Court and of enabling trial machinery to move as if the person remained an accused.

The Court held that an interim order must be in aid of the final relief; but a stay of discharge usually effects the final relief itself because it permits trial to proceed and thereby renders the revision’s eventual outcome ineffective. Therefore, staying a discharge is permissible only in rare and exceptional circumstances where the discharge is ex facie perverse; even then the revisional court must afford an opportunity of being heard and must mould interim relief so the trial does not proceed against the discharged accused.

The Court reviewed Parvinder Singh Khurana (stay of bail cases) and applied its strictures more rigorously to stays of discharge. The Court also elaborated on s. 390: when invoked sensibly in admitted revision, it supplies a measured remedy the discharged person can be directed to appear and be admitted to bail under appropriate terms pending revision, securing both presence and liberty. Applying these principles, the Supreme Court found the High Court’s first impugned order (an ex parte stay while issuing notice) wholly unsustainable and the second order directing surrender and custody an offshoot of that illegal stay; both were quashed.

The Court then directed that the Sessions Court should admit the appellant to bail under s. 390 for the duration of the revision process, ensuring usual conditions plus cooperation with expeditious disposal; failure to furnish bail would result in custody. The High Court was left free to decide the revision on merits without being influenced by observations in the Supreme Court’s judgment. The Court emphasised that only in extreme rare cases could custody be ordered in such circumstances and that ordinarily bail is the rule.

a. RATIO DECIDENDI

The binding legal principle is: a revisional court may not ordinarily stay an order of discharge because such a stay effectively deprives the discharged person of liberty and operates as final relief; the power to stay discharge must be exercised only in rare exceptional cases where discharge is ex facie perverse and only after the discharged person has had an opportunity of being heard.

Where revision is admitted, a proportionate interim measure under s. 390 CrPC directing appearance and admission to bail on terms is the appropriate mechanism to secure attendance and to preserve the utility of the revision while protecting liberty. The Court’s ratio reconciles revisional authority with the sanctity of discharge and the constitutional guarantee of personal liberty.

b. OBITER DICTA

The opinion includes reasoned observations of wider application:

(i) an ex parte stay of bail or discharge should be exceptional and must be supported by brief recorded reasons;

(ii) discharge enjoys a stronger presumption than mere bail and even stronger than acquittal in terms of restoration of liberty at threshold;

(iii) interim orders must be moulded so as not to make the final remedy ineffective;

(iv) s. 437A bond taken at time of discharge may lapse and fresh bail under s. 390 is often necessary to secure presence; and

(v) while revisional courts have wide canvas under s. 401, subsection (2) requires that no order be made to the prejudice of an accused unless he has had an opportunity of being heard a constitutional safeguard that is pressingly relevant when liberty is curtailed.

These observations, while not strictly necessary to decide every fact pattern, give guidance for lower courts and revisional practice.

c. GUIDELINES 

i. An order of discharge under s. 227 CrPC places the person outside the ambit of being an accused; such status warrants heightened protection from interlocutory interference.

ii. A revisional court may exercise s. 390 powers on admission of revision but should ordinarily direct appearance and bail rather than effect custody.

iii. An ex parte stay of a discharge is impermissible except in extremely rare circumstances; where considered, the court must record brief but specific reasons showing why the case is exceptional.

iv. Before staying a discharge, the revisional court must, as a rule, afford the discharged person an opportunity to be heard (consistent with s. 401(2) CrPC).

v. If interim custodial steps are contemplated, they must be justified by a very high prima facie standard (eg. material to show risk of flight, tampering with evidence, or grave perversion of the discharge order).

vi. Where bail or bonds have been furnished under s. 437A at discharge, courts should verify their currency; if expired, fresh bail under s. 390 with conditions ensuring cooperation and expeditious disposal should be imposed.

vii. High Courts and Sessions Courts must avoid issuing orders which, by their practical effect, render a revisional challenge ineffective (the fait accompli risk).

J) CONCLUSION & COMMENTS

The judgment restores doctrinal balance between the revisional reach of superior courts and the protective purpose of a discharge under s. 227 CrPC. It anchors interim relief to the twin pillars of proportionality and hearing: where the State seeks to arrest the effect of a discharge, the revisional court must justify the exceptional step, record reasons, and prefer measures that secure presence without extinguishing the liberty already granted.

The decision importantly articulates that liberty restored at threshold by discharge cannot be lightly interrupted by ex parte stays which, in practice, convert interim orders into final punishment or process. Practically, the judgment requires High Courts to be cautious: calls for prompt service of process, use of s. 390 bail directions, and recording of reasons when severe interlocutory measures are taken. For practitioners, the ruling clarifies litigation strategy: when challenging discharge, the State must demonstrate strong immediate grounds to seek custody; conversely, an accused discharged should press for notice and hearing before any curtailment of discharge.

The judgment will likely curb the incidence of ex parte stays of discharge and promote proportionate interim regimes that protect both prosecutorial interests and constitutional liberty.

K) 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.

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 (as charged).

3. Arms Act, 1959 — ss. 25, 27 (as charged).

4. Bharatiya Nagarik Suraksha Sanhita, 2023 — counterparts ss. 427, 430, 431, 432 (discussed).