Code of Criminal Procedure, 1973 – ss.390, 397, 401 – Revisional court – Power to stay the order of discharge – Appellant not named in the FIR but was formally arraigned as an accused in the 3rd Supplementary Chargesheet u/ss.302, 201, 34, 120B IPC and ss.25, 27 Arms Act – Trial court discharged the appellant in connection with all the offences and was released from custody – Revision application by the respondent-State – By the first impugned order, the High Court stayed the discharge order which was an ex parte order – By the second impugned order, the High Court held that on account of the stay granted by the High Court, the appellant cannot avail the benefit of the discharge order, thus, the appellant was directed to surrender before the trial court and granted liberty to apply for bail thereafter – Correctness: Held: Stay of the discharge order has a grave consequence of depriving an accused of the liberty granted under the discharge order – If the discharge order is ultimately set aside by grant of final relief in the revision, the accused has to face the trial – Order staying the order of discharge by way of interim relief cannot be said to be in the aid of final relief – It is only in rare and exceptional cases where the order of discharge is ex-facie perverse that the revisional court can take the extreme step of staying that order – 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 – 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 – As a normal rule, where an order u/s.390 is passed, the accused must be admitted to bail rather than committing him to prison – Passing an order u/s.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 – On facts, ex-parte order of stay of the order of discharge should not have been passed by the High Court – Consequences of such an order are very drastic – Ex-parte order of stay is entirely illegal – Thus, the second impugned order to be set aside – Both the impugned orders quashed and set aside. [Paras 13, 14, 16, 18, 20, 22, 25] Code of Criminal Procedure, 1973 – ss.227, 228, 390, 397,
401 – Revisional jurisdiction of the High Court – Order of Discharge – Power to stay order of discharge – Objects of s.390 – Discussed. [Paras 8-20]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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