Stay On Discharge Orders Should Not Be Granted Unless Circumstances Are Exceptional : Supreme Court

The Supreme Court on Friday (February 28) held that High Courts should not ordinarily stay the discharge orders passed by the trial courts in criminal cases.

"Stay on discharge should never be granted unless circumstances are exceptional," the Court stated.

The Court further held that even when the appellate court invokes Section 390 CrPC to arrest an accused while considering an appeal against acquittal, then also bail should be rule.

"And even for action under section 390 CrPC, it should be bail and not jail," Justice Abhay S Oka said during the pronouncement.

A bench of Justice Abhay Oka and Justice Ujjal Bhuyan delivered its judgment on a plea filed by Sikh leader Sudershan Singh Wazir, challenging the Delhi High Court's order that stayed his discharge in a murder case and directed him to surrender.

The case involves 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.

On October 26, 2023, the trial court discharged Wazir along with co-accused Balbir Singh, Harpreet Singh Khalsa, and Rajinder Chaudhary, while retaining charges against another accused, Harmeet Singh. Following this, the prosecution moved the Delhi High Court in revision proceedings.

On November 4, 2024, the Delhi High Court stayed the trial court's discharge order and directed Wazir to surrender, reasoning that his release following the discharge had become invalid due to the stay on the discharge order. The High Court asserted that Wazir could not continue to benefit from an order that was under appellate scrutiny and stated that not securing his custody would render the stay order ineffective. However, it clarified that Wazir was not barred from seeking bail from the trial court, which would be considered independently on its merits.

The Supreme Court, on November 11, 2024, issued notice on Wazir's plea challenging the High Court's order. The Court stayed the direction to surrender and also directed that the trial proceedings against Wazir would not proceed until further notice. The Supreme Court questioned the legality of staying a discharge order, with Justice Oka observing, “How order of discharge can be stayed? Staying an order of discharge is completely unheard of.”

During the hearing on January 28, 2024, the Court raised several questions about the implications of the High Court's decision to grant an ex parte stay on the discharge order. He observed that staying the discharge order allowed the trial to proceed even though the discharge order was not set aside, effectively subjecting Wazir to trial. Justice Oka termed the High Court's order as “absurd,” emphasizing that the ex parte stay resulted in Wazir facing trial despite his discharge.

Additional Solicitor General Rajkumar Bhaskar Thakare argued that the High Court exercised its power under Section 397 read with Section 401 of the CrPC after finding a prima facie case that the discharge order was flawed due to “non-application of mind” and amounted to a “mini-trial.”

The victim's counsel argued that the High Court's stay did not necessarily mean that Wazir's trial would proceed and justified the High Court's decision based on its preliminary finding that the discharge order was incorrect. It was contended that the High Court found the discharge order to be “absolutely incorrect ex facie” and, therefore, stayed the order while allowing Wazir to apply for bail.

However, Justice Oka expressed scepticism about the process of seeking bail in such circumstances, noting the complexities and delays involved in the legal system.

The Supreme Court further raised concerns about the implications for due process under Article 21 of the Constitution, particularly questioning how the release following a discharge order could be considered invalid without the discharge order being set aside.

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

Click Here To Read/Download Judgment