Revisional stay of discharge order cannot be granted ex parte; custody direction is impermissible except in rare cases.

In revision against an order of discharge, the SC held that an ex parte stay of the discharge order cannot be granted mechanically because it revives criminal process and curtails liberty. Revisional powers under Sections 397 and 401 CrPC may permit suspension of an impugned order, but such drastic interim relief is confined to rare and exceptional cases after hearing the discharged accused. Where the object is to secure the accused's presence pending revision, the proper course is to use bail-type safeguards under Section 390 rather than directing surrender to custody. The ex parte stay and consequential custody direction were therefore impermissible and liable to be quashed.

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Issues: Whether the High Court could, in revision against an order of discharge, grant an ex parte stay of the discharge and direct the discharged accused to surrender to custody.

Analysis: The revisional powers under Sections 397 and 401 of the Code of Criminal Procedure, 1973 permit suspension of an impugned order and, in an appropriate case, the exercise of appellate powers including Section 390. However, an order of discharge has the effect of releasing the person from the status of an accused, and a stay of such an order has the consequence of reviving criminal process and curtailing liberty. Such a drastic interim order is not to be granted mechanically or ex parte, and can be made only in rare and exceptional cases after hearing the discharged accused. Where the purpose is securing presence pending revision, the proper course is to resort to bail-type safeguards under Section 390 rather than committing the discharged person to custody. An ex parte stay of the discharge order, followed by a direction to surrender, was therefore impermissible.

Conclusion: The ex parte stay and the consequential custody direction were illegal and liable to be quashed, and the discharged accused was entitled to relief.

Ratio Decidendi: In revision against discharge, an ex parte stay of the discharge order cannot be granted except in rare and exceptional cases after hearing the accused, and the revisional court should ordinarily secure attendance by bail-type conditions rather than by directing custody.

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