The High Court's power to stay a discharge order must be exercised cautiously, as it significantly impacts the accused's liberty, requiring exceptional circumstances for such action.

JUDGMENT :

(Abhay S. Oka, J.)

FACTUAL ASPECTS

1. The appellant was arraigned as an accused in connection with a First Information Report (for short, ‘the FIR’) for the offences punishable under Sections 302, 201 and 34 of the Indian Penal Code, 1860 (for short, ‘the IPC’). He was not named in the FIR and was formally arraigned as an accused in the 3rd Supplementary Chargesheet under Section 302, 201, 34, 120B IPC read with 25, 27 of the Arms Act. The learned Additional Sessions Judge passed an order dated 20th October 2023 discharging the present appellant in connection with all the offences subject to furnishing a personal bond in the sum of Rs.25,000/- with one surety of like amount to the satisfaction of the Jail Superintendent. Pursuant to the said order of discharge, the appellant was released from custody on the same day after he furnished the bond.

2. A revision application was filed by the first respondent- NCT of Delhi, challenging the order of discharge before the High Court of Delhi. A prayer was made in the revision application for stay of the order of discharge. By the first impugned order dated 21st October 2023, while issuing a notice in the revision application, the learned Single Judge of the High Court stayed the discharge order. It was an ex-parte order of stay, which was extended from time to time. An application was filed under Section 390, read with Section 482 of the CrPC, by the first respondent in the revision application seeking a direction against the appellant to surrender to judicial custody on the ground that the discharge order has already been stayed. By the second impugned order dated 4th November 2024, the learned Single Judge of 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. Therefore, the High Court observed that if the custody of the appellant is not secured, the order of stay granted by the first impugned order will become ineffective. Therefore, by the second impugned order, the appellant was directed to surrender before the Trial Court and was granted liberty to apply for bail thereafter. While issuing notice on 11th November 2024, this Court stayed the second impugned order. However, this Court clarified that the High Court was free to proceed with the hearing of the revision application.

SUBMISSIONS

3. Shri Siddharth Luthra, the learned senior counsel appearing for the appellant, submitted that the High Court ought not to have stayed the order of discharge. The consequence of the stay order is that the trial will proceed against the appellant, though he has been discharged. He submitted that unless the order of discharge is set aside, the trial cannot proceed. He submitted that the appellant has been discharged for the cogent reasons recorded and that the order cannot be nullified by granting a stay. He submitted that the grant of stay to the discharge order would virtually amount to allowing the revision application without examining the merits or demerits of the discharge order. He submitted that the appellant has complied with the directions issued by the Sessions Court of furnishing bail in accordance with Section 437A of the CrPC. Therefore, the presence of the appellant is secured, if at all, he is required to face trial.

4. Shri Satya Darshi Sanjay, the learned Additional Solicitor General (ASG) appearing for the first respondent-NCT of Delhi, strenuously urged that though a strong prima facie case was made out to proceed on the basis of the charge sheet filed against the appellant, the learned Sessions Judge has passed an order of discharge. He pointed out that it is a very serious case of murder of a former Member of the Legislative Council of Jammu and Kashmir and the Chairman of Jammu and Kashmir Gurudwara Prabandhak Committee. He submitted that apart from the CCTV footage, there is evidence of CDR and eye-witnesses. He submitted that the order of discharge is perverse. He submitted that th