SUDERSHAN SINGH WAZIRversusSTATE (NCT OF DELHI) & ORS.

                 [2025] 2 S.C.R. 1416 : 2025 INSC 281

                         Sudershan Singh Wazir
                                    v.
                        State (NCT of Delhi) & Ors.
                  (Criminal Appeal No(s). 536-537 of 2025)
                                28 February 2025
                [Abhay S. Oka* and Ujjal Bhuyan, JJ.]


                             Issue for Consideration
       Issue arose as regards the correctness of orders passed by the
       High Court staying the discharge of the accused and directing him
       to surrender before the trial court.

                                     Headnotes†
       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


* Author
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         Sudershan Singh Wazir v. State (NCT of Delhi) & Ors.


     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]

                              Case Law Cited
     State of Uttar Pradesh v. Poosu & Ors. [1976] 3 SCR 1005 : (1976)
     3 SCC 1; Amin Khan v. State of Rajasthan & Ors. [2009] 3 SCR
     348 : (2009) 3 SCC 776; State of Maharashtra v. Mahesh Kariman
     Tirki & Ors. (2022) 10 SCC 207; Parvinder Singh Khurana v.
     Directorate of Enforcement [2024] 7 SCR 979 : 2024 SCC OnLine
     SC 1765 – referred to.

                                 List of Acts
     Code of Criminal Procedure, 1973; Penal Code, 1860; Arms Act,
     1959; Bharatiya Nagarik Suraksha Sanhita, 2023.

                              List of Keywords
     Revisional court; Order of discharge; Stay of discharge order; Bail;
     Surrender to trial court; Murder of former member of Legislative
     Council of Jammu and Kashmir and Chairman of Jammu and
     Kashmir Gurudwara Prabandhak Committee; Power to stay the
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     order of discharge; Status of accused on bail; Status of discharged
     accused; Grave consequences of depriving accused of liberty;
     Ex-facie perverse order; Fait accompli; Opportunity of being heard;
     Ex-parte stay of the order of discharge; Bail is the rule, jail is the
     exception.

                             Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
     536-537 of 2025
     From the Judgment and Order dated 21.10.2023 in CRLMA No.
     29229 of 2023 and dated 04.11.2024 in CRLMA No. 2699 of 2024
     in CRL. REV. P. No. 1139 of 2023 of the High Court of Delhi at
     New Delhi

                         Appearances for Parties
     Advs. for the Appellant:
     Siddharth Luthra, Sr. Adv., Rajiv Mohan, Mahfooz Ahsan Nazki,
     Meeran Maqbool, Mihir Joshi, Ms. Akanksha Gupta, Ms. Aranya
     Sinha, Ms. Nitika Pancholi, Vivek Rajan D.B..
     Advs. for the Respondents:
     Satya Darshi Sanjay, A.S.G., Mukesh Kumar Maroria, Kartikeya
     Asthana, Shaurya Rai, Alabhya Dhamija, Akshay Amritanshu, Satya
     Jha, Arjun Deewan, Nitin Saluja.

                Judgment / Order of the Supreme Court

                                 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
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         Sudershan Singh Wazir v. State (NCT of Delhi) & Ors.


     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
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      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 the learned Judge of the High Court
      had recorded a prima facie finding in the first impugned order that
      the learned Sessions Judge had overlooked material evidence.
      Inviting our attention to Sections 397 and 401 of the CrPC, the
      learned ASG submitted that the High Court has the power to stay
      or suspend the operation of the impugned order. In fact, as per
      sub-section (1) of Section 401 of the CrPC, the High Court while
      dealing with a revision application, is empowered to exercise all the
      powers of the Court of Appeal under Sections 386, 389, 390 and
      391 of the CrPC. Therefore, after admitting the revision application
      for hearing, the High Court had power under Section 390 of the
      CrPC to direct that the appellant should be committed to prison. He
      urged that considering the prima facie finding recorded in the first
      impugned order, the High Court had every justification to order the
      appellant to be taken into custody.
5.    Shri Arjun Deewan, the learned counsel appearing for the fifth
      respondent (a son of the deceased), has also made detailed
      submissions. He relied upon a decision of the Constitution Bench
      in the case of State of Uttar Pradesh v. Poosu & Ors1. He relied
      upon paragraph No.10 of the decision, which reads thus:
             “10. This is the rationale of Section 427. As soon as the
             High Court on perusing a petition of appeal against an


1    (1976) 3 SCC 1
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            Sudershan Singh Wazir v. State (NCT of Delhi) & Ors.


             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.”
6.    He submitted that once a revision application against the order of
      discharge is admitted, the status of the appellant as an accused is
      revived and therefore, the trial must proceed against him and he has
      to be taken into custody. He relied upon a decision of this Court in
      the case of Amin Khan v. State of Rajasthan & Ors2 and submitted
      that the power under Section 390 of the CrPC has been correctly
      exercised by passing the second impugned order. He also relied
      upon a decision of this Court in the case of State of Maharashtra v.
      Mahesh Kariman Tirki & Ors3. He submitted that a higher Court
      can always stay the order of discharge.
7.    The learned senior counsel appearing for the appellant, in response
      to the submissions of the respondents, relied upon the 154th Report
      of the Law Commission of India, by which a recommendation was
      made to incorporate Section 437A in the CrPC. He also relied upon
      a decision of this Court in the case of Parvinder Singh Khurana v.
      Directorate of Enforcement.4

      CONSIDERATION OF SUBMISSIONS

      REVISIONAL JURISDICTION OF THE HIGH COURT
8.    Firstly, we will examine the power of the High Court of revision. It is
      governed by Sections 397 and 401 of the CrPC. The corresponding
      provisions in the Bhartiya Nagarik Suraksha Sanhita, 2023 (for short,
      ‘the BNSS’) are Sections 438 and 442 respectively. Sections 397
      and 401 of the CrPC read thus:
             “397. Calling for records to exercise powers of
             revision.—(1) The High Court or any Sessions Judge
             may call for and examine the record of any proceeding


2    (2009) 3 SCC 776
3    (2022) 10 SCC 207
4    2024 SCC OnLine SC 1765 : 2024 INSC 546
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        before any inferior Criminal Court situate within its or
        his local jurisdiction for the purpose of satisfying itself or
        himself; to the correctness, legality or propriety of any
        finding, sentence or order, recorded or passed, and as to
        the regularity of any proceedings of such inferior Court,
        and may, when calling, for such record, direct that the
        execution of any sentence or order be suspended,
        and if the accused is in confinement that he be released
        on bail or on his own bond pending the examination of
        the record.
        Explanation.—All Magistrates, whether Executive or
        Judicial, and whether exercising original or appellate
        jurisdiction, shall be deemed to be inferior to the Sessions
        Judge for the purposes of this sub-section and of section
        398.
        (2) The powers of revision conferred by sub-section (1)
        shall not be exercised in relation to any interlocutory order
        passed in any appeal, inquiry, trial or other proceeding.
        (3) If an application under this section has been made by
        any person either to the High Court or to the Sessions
        Judge, no further application by the same person shall be
        entertained by the other of them.
        ..       ..       ..       ..       ..       ..       ..

        401. High Court’s powers of revision.—(1) In the case
        of any proceeding the record of which has been
        called for by itself or which otherwise comes to its
        knowledge, the High Court may, in its discretion,
        exercise any of the powers conferred on a Court of
        Appeal by sections 386, 389, 390 and 391 or on a
        Court of Session by section 307, and, when the Judges
        composing the Court of Revision are equally divided in
        opinion, the case shall be disposed of in the manner
        provided by section 392.
        (2) No order under this section shall be made to the
        prejudice of the accused or other person unless he has
        had an opportunity of being heard either personally or by
        pleader in his own defence.
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         Sudershan Singh Wazir v. State (NCT of Delhi) & Ors.


           (3) Nothing in this section shall be deemed to authorise
           a High Court to convert a finding of acquittal into one
           conviction.
           (4) Where under this Code an appeal lies and no appeal
           is brought, no proceeding by way of revision shall be
           entertained at the instance of the party who could have
           appealed.
           (5) Where under this Code an appeal lies but an application
           for revision has been made to the High Court by any person
           and the High Court is satisfied that such application was
           made under the erroneous belief that no appeal lies thereto
           and that it is necessary in the interests of Justice so to do,
           the High Court may treat the application for revision as a
           petition of appeal and deal with the same accordingly.”
                                                     (emphasis added)

     Hence, while exercising the revisional jurisdiction under Section 401,
     the High Court has all the powers of the Appellate Court under Sections
     386, 389, 390 and 391 of the CrPC. The corresponding provisions
     under the BNSS are Sections 427, 430, 431 and 432 respectively.
     In view of what is provided under Section 397(1), the High Court
     has the power to suspend the operation of the order impugned in
     the revision application. The question is whether the power to grant
     a stay can be exercised for staying an order of discharge.
9.   Section 386 provides for the procedure for the hearing of appeals.
     Section 389 of the CrPC, on its plain reading, is applicable when the
     order impugned is an order of conviction. It deals with suspension of
     sentence pending an appeal against conviction. Section 390 of the
     CrPC is the provision which deals with an appeal against acquittal.
     Section 391 of the CrPC deals with the power of the Appellate Court
     to take further evidence. Section 390 reads thus:
           “390. Arrest of accused in appeal from acquittal.—When
           an appeal is presented under section 378, the High Court
           may issue a warrant directing that the accused be arrested
           and brought before it or any Subordinate Court, and the
           Court before which he is brought may commit him to prison
           pending the disposal of the appeal or admit him to bail.”
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     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.

     ORDER OF DISCHARGE
10. Before we go to the power of the revisional Court to stay the order
    of discharge, it is necessary to consider the effect of discharge. In a
    trial before a Court of Sessions, the power to discharge is conferred
    on the Court by Section 227 of the CrPC. In the case of a trial of
    a warrant case, there is a similar power to grant a discharge under
    Section 245 of the CrPC. We are concerned with Section 227, which
    deals with discharge and Section 228, which deals with the framing
    of charge, which read thus:
          “227. Discharge.—If, upon consideration of the record
          of the case and the documents submitted therewith, and
          after hearing the submissions of the accused and the
          prosecution in this behalf, the Judge considers that there
          is not sufficient ground for proceeding against the
          accused, he shall discharge the accused and record
          his reasons for so doing.
          228. Framing of charge.—(1) If, after such consideration
          and hearing as aforesaid, the Judge is of opinion that
          there is ground for presuming that the accused has
          committed an offence which—
                (a) is not exclusively triable by the Court of Session,
                he may, frame a charge against the accused and, by
                order, transfer the case for trial to the Chief Judicial
                Magistrate, [or any other Judicial Magistrate of the
                first class and direct the accused to appear before the
                Chief Judicial Magistrate, or, as the case may be, the
                Judicial Magistrate of the first class, on such date as
                he deems fit, and thereupon such Magistrate] shall
                try the offence in accordance with the procedure for
                the trial of warrant-cases instituted on a police report;
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         Sudershan Singh Wazir v. State (NCT of Delhi) & Ors.


                (b) is exclusively triable by the Court, he shall frame
                in writing a charge against the accused.
           (2) Where the Judge frames any charge under clause (b)
           of sub-section (1), the charge shall be read and explained
           to the accused and the accused shall be asked whether he
           pleads guilty of the offence charged or claims to be tried.”
                                                   (emphasis added)

11. Under Section 226 of the CrPC, after the order of commitment, when
    the accused appears or is brought before the Court of Sessions, the
    prosecutor has to open his case by describing the charge levelled
    against the accused by stating what evidence is proposed to prove
    the guilt of the accused. At that stage, the Sessions Court has to
    consider the record of the case. The record of the case will be the
    charge sheets. The Sessions Court is under an obligation to hear
    the submissions of the accused and the prosecution as provided in
    Section 227 of the CrPC. After hearing the parties, if the Sessions
    Court is of the opinion that there is a ground for presuming that
    the accused has committed an offence, it may proceed to frame a
    charge in writing against the accused. The charge can be framed
    only after the Court comes to a conclusion that there is a ground for
    presuming that the accused has committed an offence.
12. After considering the material on the charge sheet and the submissions
    of parties, if the Court concludes that there is no sufficient ground
    for proceeding against the accused, the Court must discharge the
    accused for the reasons recorded. Thus, an order of discharge is
    passed when there is no sufficient material to proceed against the
    accused. When a discharge order is passed, the person discharged
    ceases to be an accused. The position of a discharged accused is
    on a higher pedestal than that of an accused who is acquitted after a
    full trial. The reason is that a charge can be framed, and an accused
    can be tried only when there is sufficient material in the charge sheet
    to proceed against him. An order of discharge is passed when the
    charge sheet does not contain sufficient material to proceed against
    the accused. Therefore, he is discharged at the threshold. After an
    accused is discharged under Section 227 of the CrPC, he is set at
    liberty as he ceases to be an accused.
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     POWER TO STAY THE ORDER OF DISCHARGE
13. 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 grant of stay to the order of
    discharge amounts to the grant of final relief, as the trial can proceed
    against him. An interim order can be granted pending disposal of the
    main case only if the interim order is in the aid of final relief sought
    in the main case. If the discharge order is ultimately set aside by
    grant of final relief in the revision, the accused has to face the trial.
    Therefore, the order staying the order of discharge by way of interim
    relief cannot be said to be in the aid of final relief.
14. 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. However, such an order should be passed
    only after giving an opportunity of being heard to the accused.
    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.
15. In the case of Parvinder Singh Khurana4, this court dealt with
    the power of the Court to stay the order granting bail pending final
    disposal of the proceedings filed for cancellation of bail. In paragraphs
    11 to 13 of the said decision, this Court held thus:
          “11. While issuing notice on an application for cancellation
          of bail, without passing a drastic order of stay, if the facts
          so warrant, the High Court can, by way of an interim order,
          impose additional bail conditions on the accused, which
          will ensure that the accused does not flee. 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. The reason is that when an undertrial is ordered
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         Sudershan Singh Wazir v. State (NCT of Delhi) & Ors.


           to be released on bail, his liberty is restored, which cannot
           be easily taken away for the asking. The undertrial is not
           a convict. An interim relief can be granted in the aid of the
           final relief, which could be finally granted in proceedings.
           After cancellation of bail, the accused has to be taken into
           custody. Hence, it cannot be said that if the stay is not
           granted, the final order of cancellation of bail, if passed,
           cannot be implemented. If the accused is released on bail
           before the application for stay is heard, the application/
           proceedings filed for cancellation of bail do not become
           infructuous. The interim relief of the stay of the order
           granting bail is not necessarily in the aid of final relief.
           12. The Court dealing with the application for cancellation of
           bail can always ensure that notice is served on the accused
           as soon as possible and that the application is heard
           expeditiously. 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,
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          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. Moreover, the Court must record specific
          reasons why it concluded that it was a very rare and
          exceptional case where a very drastic order of ex-parte
          interim stay was warranted. Moreover, since the issue
          involved is of the accused›s right to liberty guaranteed
          by Article 21 of the Constitution, if an ex-parte stay is
          granted, by issuing a short notice to the accused, the
          Court must immediately hear him on the continuation of
          the stay.”
                                                  (emphasis added)

16. We may note here that the 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. The
    power of the Court to stay the order granting bail can be exercised
    only in rare and exceptional cases. As a discharged accused stands
    on a still higher pedestal than an accused released on bail, the law
    laid down in the case of Parvinder Singh Khurana4 will apply more
    strictly and rigorously while dealing with the application for grant of
    stay of the order of discharge.
17. In the case of State of Maharashtra v. Mahesh Kariman Tirki &
    Ors3, a bench of the Bombay High Court, while finally hearing an
    appeal against an order of conviction of the accused after a full-
    fledged trial, passed an order of discharge only on the ground of the
    absence of sanction. The High Court did not advert to the merits of
    the conviction. Considering this peculiar order, this Court passed a
    drastic order of stay while issuing notice on Special Leave Petition
    against the order of discharge. Therefore, the said order is of no
    relevance to this case.

     SECTION 390 OF CrPC
18. As we have held earlier, in view of Section 401(1) of the CrPC,
    the revisional Court can exercise power under Section 390 in a
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     given case. As can be seen from Section 390, when an appeal is
     preferred against an order of acquittal, the High Court is empowered
     to issue a warrant directing that the accused be arrested and brought
     before it or any sub-ordinate Court. The Court, before which the
     accused is brought, may commit him to prison pending disposal of
     the appeal or admit him to bail. Once an appeal against acquittal
     is admitted, the status of the person acquitted as an accused can
     be said to be restored. That is what is held in the case of State of
     Uttar Pradesh v. Poosu & Ors.1 The object of Section 390 of the
     CrPC is that if ultimately the order of acquittal is converted into the
     order of conviction, the accused must be available for undergoing
     sentence. The second object of Section 390 is that when an appeal
     against acquittal is finally heard, the accused’s presence at the
     hearing can be secured. Therefore, there is a power vested in the
     High Court to arrest an acquitted accused and bring him before it
     or the Trial Court. The object is that the accused remains under the
     jurisdiction of the Court dealing with the appeal against acquittal.
     It is well settled that an order of acquittal further strengthens the
     presumption of innocence of an accused. Therefore, as a normal
     rule, where an order under Section 390 of the CrPC is passed,
     the accused must be admitted to bail rather than committing him
     to prison. It is well-settled in our jurisprudence that bail is the rule,
     and jail is the exception. This rule must be applied while exercising
     power under Section 390 of the CrPC, as the position of the acquitted
     accused is on a higher pedestal than an accused facing trial. When
     an accused faces trial, he is presumed to be innocent until he is
     proven guilty. In the case of an acquitted accused, as stated earlier,
     the presumption of innocence is further strengthened because of
     the order of acquittal. Only in extreme and rare cases by way of
     exception can an order committing an acquitted accused to prison
     be passed under Section 390.
19. 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
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     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.
20. 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.

     OUR VIEW ON THE FACTS OF THE CASE
21. Now, coming to the facts of the case, the first impugned order has been
    passed ex-parte while issuing notice by which the order of discharge
    was stayed. There is nothing placed on record to show that till the
    second impugned order was passed, at any time, the High Court had
    given an opportunity to the appellant to be heard on the prayer for
    stay. The second impugned order runs into as many as twenty-six
    pages and involves 62 paragraphs, which, in substance, holds that
    as the order of discharge was no longer operative, the status of the
    appellant as an accused has been restored, and therefore, he shall
    be forthwith taken into custody.
22. 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.
23. In the present case, after passing the order of discharge, the Sessions
    Court passed a further order on the same day by directing the release
    of the appellant on furnishing a personal bond of Rs.25,000/- and
    one surety in the like amount to the satisfaction of the concerned
    Jail Superintendent. Apparently, the Sessions Court exercised power
    under Section 437A of the CrPC, which reads thus:
[2025] 2 S.C.R.                                                           1431

          Sudershan Singh Wazir v. State (NCT of Delhi) & Ors.


           “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.
           (2) If such accused fails to appear, the bond stand forfeited
           and the procedure under section 446 shall apply.”
24. The bail bonds furnished by the appellant in terms of the order dated
    20th October 2023 were for ensuring his presence when notice of
    the proceedings against an order of discharge is served. Thus, the
    validity of the bail bonds may have expired. Hence, we propose to
    direct the appellant to furnish bail in terms of Section 390 of the CrPC.
25. Accordingly, we pass the following order:
     a.    The impugned orders dated 21st October 2023 and 4th November
           2024 are, hereby, quashed and set aside;
     b.    The High Court will decide the revision application without
           being influenced by any observations made in this judgment. It
           will be open for the first respondent-NCT of Delhi, and the fifth
           respondent to apply before the High Court for giving necessary
           priority to the disposal of the revision application;
     c.    We direct the appellant to appear before the Sessions Court
           within four weeks from today and furnish bail effective till disposal
           of the revision application on such terms and conditions as
           may be fixed by the Sessions Court. If the appellant fails to
           comply with the above directions, he shall be forthwith taken
           into custody and sent to judicial custody till the disposal of the
           revision application; and
     d.    While admitting the appellant to bail, the Sessions Court shall
           impose usual conditions. In addition, a condition of cooperating
           with the High Court for early disposal of the revision application
           shall be also imposed. If the High Court finds that the appellant
1432                                                         [2025] 2 S.C.R.

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            is not cooperating with the early disposal of the revision
            application, it will be open for the High Court to cancel the bail
            after hearing the appellant.
26. The appeals are allowed on the above terms.

    Result of the case: Appeals allowed.




    †
        Headnotes prepared by: Nidhi Jain