Supreme Court: Where An Order To Arrest U/S. 390 CrPC Is Passed, Normally Accused Must Be Admitted To Bail
The Supreme Court quashed the “illegal” ex-parte stay on the discharge Order against Sudershan Singh Wazir in Ex-MLC Trilochan Wazir’s murder case.
Justice Abhay S. Oka, Justice Ujjal Bhuyan, Supreme Court
The Supreme Court held that when a Court invokes Section 390 of the CrPC to order arrest an accused in an Appeal against acquittal, the accused should generally be admitted to bail rather than committed to prison.
The Court set aside the Order passed by the Delhi High Court wherein the State’s Application under Section 390 of the CrPC was allowed. The Court held that a revisional Court can take the extreme step of staying an Order of discharge only in “rare and exceptional cases” where the order is ex-facie perverse.
A Bench of Justice Abhay S Oka and Justice Ujjal Bhuyan held, “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.”
The Senior Advocate Siddharth Luthra appeared for the Appellant, while Additional Solicitor General Satya Darshi Sanjay represented the Respondents.
Brief Facts
The Appellant was charged under Sections 302, 201, 34 and 120B of the IPC read with Sections 25 and 27 of the Arms Act. He was not named in the FIR but was included in the third supplementary charge sheet.
The Trial Court in 2023 passed an Order discharging the Appellant from all charges, Consequently, he was released from custody on the same day after furnishing the bond.
Stay of Discharge Order
The State (NCT of Delhi) challenged the discharge Order by filing a revision application before the High Court. The High Court, through an ex-parte Order dated October 21, 2023, stayed the Order of discharge. On November 4, 2024, the High Court directed the Appellant to surrender after holding that he cannot avail the benefit of a prior discharge order by the Trial Court.
The High Court held that the Appellant, who had secured release following the discharge order, must return to custody, observing that the stay effectively paused the discharge order and reinstated his status as an accused.
On November 11, 2024, the Supreme Court issued a stay on the High Court’s second order while allowing the High Court to continue hearing the revision application.
Court’s Reasoning
The Supreme Court clarified that “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 Bench examined the scope of the High Court’s revisional jurisdiction under Sections 397 and 401 of the CrPC and held that while the High Court has the power to stay an impugned order, such discretion should be exercised only in “rare and exceptional cases.”
“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.” it remarked.
The Court held, “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.”
“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 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,” the Bench remarked.
Consequently, the Court held, “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.”
Accordingly, the Supreme Court allowed the Appeal.
Cause Title: Sudershan Singh Wazir v. State (NCT of Delhi) & Ors. (Neutral Citation: 2025 INSC 281)
Appearance:
Appellant: Senior Advocate Siddharth Luthra; Advocates Rajiv Mohan, Meeran Maqbool, Mihir Joshi, Akanksha Gupta, Aranya Sinha, Nitika Pancholi and Vivek Rajan D.B.; AOR Mahfooz Ahsan Nazki
Respondents: Additional Solicitor General Satya Darshi Sanjay; AOR Mukesh Kumar Maroria and Nitin Saluja; Advocates Kartikeya Asthana, Shaurya Rai, Alabhya Dhamija, Akshay Amritanshu, Satya Jha and Arjun Deewan