Summary
In a revision against an order discharging the appellant in a murder case, the High Court stayed the discharge ex parte while issuing notice and later directed the appellant to surrender to custody. The Court held that a stay of a discharge order is a drastic measure amounting to final relief, permissible only in rare cases of ex facie perversity after hearing the accused, that under Section 390 read with Section 401 CrPC the revisional court should ordinarily direct the discharged person to furnish bail rather than commit him to custody, quashed both orders and directed the appellant to furnish bail before the Sessions Court pending the revision.
Issues
- Whether a High Court exercising revisional jurisdiction under Sections 397 and 401 CrPC can stay an order of discharge, and if so in what circumstances.
- What is the effect of an order of discharge under Section 227 CrPC on the status of the accused.
- Whether the power under Section 390 CrPC to arrest an acquitted accused is available in a revision against discharge, and whether the discharged person should be committed to custody or admitted to bail.
- Whether the ex parte stay of discharge and the consequent direction to surrender were sustainable.
Provisions considered
- Sections 397 and 401 (corresponding to Sections 438 and 442 BNSS, 2023), Code of Criminal Procedure, 1973The Court read Section 397(1) as empowering the High Court to suspend the operation of an order impugned in revision and Section 401(1) as conferring on it all the powers of an appellate court under Sections 386, 389, 390 and 391; it then examined whether these powers extend to staying an order of discharge. (¶¶ 8, 18)
- Sections 386, 389, 390 and 391 (corresponding to Sections 427, 430, 431 and 432 BNSS, 2023), Code of Criminal Procedure, 1973Section 389 applies only to suspension of sentence pending an appeal against conviction and Section 391 to taking further evidence; Section 390, which permits the High Court in an appeal against acquittal to have the accused arrested and then committed to prison or admitted to bail, was held exercisable in a revision against discharge because Section 401 expressly makes it applicable. (¶¶ 9, 18, 19, 20, 24)
- Sections 226, 227 and 228, Code of Criminal Procedure, 1973The Court explained the sequence from opening of the prosecution case, through consideration of the record and hearing, to either discharge for want of sufficient ground (Section 227) or framing of charge on a ground for presuming an offence (Section 228), and held that a discharged person ceases to be an accused and stands on a higher pedestal than one acquitted after trial. (¶¶ 10, 11, 12)
- Section 437A, Code of Criminal Procedure, 1973The Sessions Court had released the appellant on discharge against bonds under this provision, which requires bonds to appear before the higher court when notice is issued and keeps them in force for six months. Since their validity may have expired, the Court directed fresh bail under Section 390. (¶¶ 3, 23, 24)
- Section 482 (with Section 390), Code of Criminal Procedure, 1973The State's application in the revision seeking the appellant's surrender was made under Section 390 read with Section 482; the second impugned order allowing it was set aside. (¶¶ 2, 22)
Held
- In exercising revisional jurisdiction under Section 401 CrPC the High Court has all the powers of an appellate court under Sections 386, 389, 390 and 391, and under Section 397(1) it may suspend the operation of the order under revision. Section 389 applies only to orders of conviction; Section 390, which deals with appeals against acquittal, is expressly made applicable by Section 401 and can therefore be invoked in a revision against an order of discharge. (¶¶ 8, 9, 18)
- A discharge under Section 227 CrPC is ordered when the chargesheet does not contain sufficient material to proceed; on discharge the person ceases to be an accused and is set at liberty. A discharged accused stands on a higher pedestal than one acquitted after a full trial, and higher still than an accused released on bail, whose status as an accused continues. (¶¶ 12, 16)
- An order staying an order of discharge is a very drastic order: it revives the trial against a person who has ceased to be an accused and takes away the liberty granted by the discharge. Since the final relief in the revision is itself that the accused face trial, a stay of discharge amounts to granting final relief by way of interim order and cannot be said to be in aid of the final relief. Only in rare and exceptional cases where the discharge order is ex facie perverse may the revisional court take this extreme step, and then only after giving the accused an opportunity of being heard and moulding the relief so that the trial does not proceed against the discharged accused pending the revision; otherwise the outcome of the revision becomes a fait accompli. (¶¶ 13, 14)
- The principles in Parvinder Singh Khurana v. Directorate of Enforcement on staying an order granting bail (stay only in very rare cases on a very strong prima facie case, with brief reasons, and ex parte stay not to be granted as a standard rule) apply more strictly and rigorously to an application to stay an order of discharge, because the discharged accused stands on a higher pedestal than one released on bail. (¶¶ 15, 16)
- The object of Section 390 CrPC is to secure the presence of the acquitted accused at the hearing of the appeal and for undergoing sentence if the acquittal is reversed. Since an acquittal strengthens the presumption of innocence and bail is the rule and jail the exception, the normal rule under Section 390 is to admit the accused to bail rather than commit him to prison, with commitment only in extreme and rare cases; this applies all the more where the challenge is to a discharge. When a revision against discharge is admitted, the High Court may under Section 390 direct the discharged person to appear before the trial court and be admitted to bail on appropriate terms, which is a sufficient safeguard and is in aid of the final relief. (¶¶ 18, 19, 20)
- The ex parte stay of the discharge order granted while issuing notice, without the appellant ever being heard on the stay before the second order was passed, should not have been granted and was entirely illegal given its drastic consequences; the consequent order directing the appellant to surrender to custody on the footing that his status as an accused stood restored was set aside. State of Maharashtra v. Mahesh Kariman Tirki, where a stay was granted in the peculiar case of a discharge ordered in an appeal against conviction solely for want of sanction, was held to be of no relevance. (¶¶ 17, 21, 22)
Result
Appeals allowed. High Court orders dated 21.10.2023 (ex parte stay of discharge) and 04.11.2024 (direction to surrender) quashed; the revision to be decided uninfluenced by this judgment, with liberty to the State and complainant to seek priority. Appellant to appear before the Sessions Court within four weeks and furnish bail till disposal of the revision, with usual conditions and a condition to cooperate in its early disposal; failing compliance he is to be taken into judicial custody, and the High Court may cancel bail for non-cooperation after hearing him.