S.390 CrPC | 'Bail Is The Rule' Even When Higher Court Orders Arrest Of Accused While Considering Challenge To Acquittal/Discharge : Supreme Court

The Supreme Court has held that when an appellate court invokes Section 390 of the Code of Criminal Procedure (CrPC) to arrest an accused while considering an appeal against acquittal, bail should be the norm.

“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”, the Court observed.

The bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan said that even under revision proceedings against an order of discharge, the High Court could exercise power under Section 390 by directing the discharged person to appear before the trial court and granting bail on appropriate terms and conditions.

“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”, the Court observed.

The Court also ruled that High Courts should not ordinarily stay discharge orders passed by trial courts in criminal cases, emphasizing that such a stay should only be granted in exceptional circumstances.

The Court allowed appeals filed by Sikh leader Sudershan Singh Wazir, challenging the Delhi High Court's orders that stayed his discharge in a murder case and directed him to surrender. The case pertains to the 2021 murder of former National Conference MLC Trilochan Singh Wazir, in which Sudershan Singh Wazir, a former President of the Jammu and Kashmir State Gurdwara Parbandhak Board, is one of the accused.

Section 390 of the CrPC provides that when an appeal against an 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. In view of Section 401(1) of the CrPC, the revisional Court can exercise power under Section 390 in a given case, the Court noted.

The court before which the accused is produced has the discretion to either commit him to prison or admit him to bail. The Supreme Court observed that once an appeal against acquittal is admitted, the status of the acquitted person as an accused is restored. The provision ensures that if the acquittal is overturned, the accused is available to undergo the sentence. Additionally, it facilitates securing the presence of the accused during the appeal hearing.

With respect to revision applications challenging an order of discharge, the Court noted that a direction under section 390 ensures the presence of the accused during the hearing and subsequent trial, if the discharge order is set aside..

Regarding the facts of the present case, the Supreme Court noted that the first impugned order, which stayed Wazir's discharge, was passed ex parte without granting him an opportunity to be heard. The second impugned order held that since the discharge order was no longer operative, Wazir's status as an accused had been restored, leading to a directive for his immediate custody. The Supreme Court held that the ex parte stay order was illegal due to its severe consequences and set it aside.

On October 26, 2023, the trial court discharged Wazir along with three co-accused while retaining charges against another accused, Harmeet Singh. The Sessions Court then ordered Wazir's release on a personal bond of Rs. 25,000 with one surety in a similar amount. The Supreme Court noted that the validity of the bail bonds might have expired and, therefore, directed Wazir to furnish fresh bail under Section 390 of the CrPC.

The Supreme Court set aside the impugned orders dated October 21, 2023, and November 4, 2024. It directed the High Court to decide the revision application independently, without being influenced by the Supreme Court's observations, and permitted the respondents were permitted to seek an expedited hearing.

Case no. – Crl.A. No. 536-537/2025

Case Title – Sudershan Singh Wazir v. State (NCT of Delhi) and Ors.

Citation : 2025 LiveLaw (SC) 262

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