TaxTMI 
TaxTMI 
2025 (2) TMI 1336
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....as an accused in the 3rd Supplementary Chargesheet under Section 302, 201, 34, 120B IPC read with 25, 27 of the Arms Act. The learned Additional Sessions Judge passed an order dated 20th October 2023 discharging the present appellant in connection with all the offences subject to furnishing a personal bond in the sum of Rs.25,000/- with one surety of like amount to the satisfaction of the Jail Superintendent. Pursuant to the said order of discharge, the appellant was released from custody on the same day after he furnished the bond. 2. A revision application was filed by the first respondent NCT of Delhi, challenging the order of discharge before the High Court of Delhi. A prayer was made in the revision application for stay of the order of discharge. By the first impugned order dated 21st October 2023, while issuing a notice in the revision application, the learned Single Judge of the High Court stayed the discharge order. It was an ex-parte order of stay, which was extended from time to time. An application was filed under Section 390, read with Section 482 of the CrPC, by the first respondent in the revision application seeking a direction against the appellant to surrender t....
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....e-witnesses. He submitted that the order of discharge is perverse. He submitted that the learned Judge of the High Court had recorded a prima facie finding in the first impugned order that the learned Sessions Judge had overlooked material evidence. Inviting our attention to Sections 397 and 401 of the CrPC, the learned ASG submitted that the High Court has the power to stay or suspend the operation of the impugned order. In fact, as per sub-section (1) of Section 401 of the CrPC, the High Court while dealing with a revision application, is empowered to exercise all the powers of the Court of Appeal under Sections 386, 389, 390 and 391 of the CrPC. Therefore, after admitting the revision application for hearing, the High Court had power under Section 390 of the CrPC to direct that the appellant should be committed to prison. He urged that considering the prima facie finding recorded in the first impugned order, the High Court had every justification to order the appellant to be taken into custody. 5. Shri Arjun Deewan, the learned counsel appearing for the fifth respondent (a son of the deceased), has also made detailed submissions. He relied upon a decision of the Constitution ....
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....sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. Explanation.-All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. .. .. .. .. .. .. .. 401. High Court's powers of revision.- (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court ....
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....ay issue a warrant directing that the accused be arrested and brought before it or any Subordinate Court, and the Court before which he is brought may commit him to prison pending the disposal of the appeal or admit him to bail." When an appeal against the order of 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. After the accused is produced, there is a discretion in the Court to either commit him to prison or admit him to bail. As Section 390 has been made expressly applicable to Section 401, the power under Section 390 can be exercised in a revision against an order of discharge. ORDER OF DISCHARGE 10. Before we go to the power of the revisional Court to stay the order of discharge, it is necessary to consider the effect of discharge. In a trial before a Court of Sessions, the power to discharge is conferred on the Court by Section 227 of the CrPC. In the case of a trial of a warrant case, there is a similar power to grant a discharge under Section 245 of the CrPC. We are concerned with Section 227, which deals with discharge and Section 228, which deals with the framing of charge,....
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....accused has committed an offence. 12. After considering the material on the charge sheet and the submissions of parties, if the Court concludes that there is no sufficient ground for proceeding against the accused, the Court must discharge the accused for the reasons recorded. Thus, an order of discharge is passed when there is no sufficient material to proceed against the accused. When a discharge order is passed, the person discharged ceases to be an accused. The position of a discharged accused is on a higher pedestal than that of an accused who is acquitted after a full trial. The reason is that a charge can be framed, and an accused can be tried only when there is sufficient material in the charge sheet to proceed against him. An order of discharge is passed when the charge sheet does not contain sufficient material to proceed against the accused. Therefore, he is discharged at the threshold. After an accused is discharged under Section 227 of the CrPC, he is set at liberty as he ceases to be an accused. POWER TO STAY THE ORDER OF DISCHARGE 13. An order staying the order of discharge is a very drastic order which has the effect of curtailing or taking away the liberty....
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....n away for the asking. The undertrial is not a convict. An interim relief can be granted in the aid of the final relief, which could be finally granted in proceedings. After cancellation of bail, the accused has to be taken into custody. Hence, it cannot be said that if the stay is not granted, the final order of cancellation of bail, if passed, cannot be implemented. If the accused is released on bail before the application for stay is heard, the application/proceedings filed for cancellation of bail do not become infructuous. The interim relief of the stay of the order granting bail is not necessarily in the aid of final relief. 12. The Court dealing with the application for cancellation of bail can always ensure that notice is served on the accused as soon as possible and that the application is heard expeditiously. An order granting bail can be stayed by the Court only in exceptional cases when a very strong prima facie case of the existence of the grounds for cancellation of bail is made out. The prima facie case must be of a very high standard. By way of illustration, we can point out a case where the bail is granted by a very cryptic order without recording any reas....
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....he Bombay High Court, while finally hearing an appeal against an order of conviction of the accused after a full-fledged trial, passed an order of discharge only on the ground of the absence of sanction. The High Court did not advert to the merits of the conviction. Considering this peculiar order, this Court passed a drastic order of stay while issuing notice on Special Leave Petition against the order of discharge. Therefore, the said order is of no relevance to this case. SECTION 390 OF CrPC 18. 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. That is what is held in the case of State of Uttar Pradesh v. Poosu & Ors. ....
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....he 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. 20. 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. OUR VIEW ON THE FACTS OF THE CASE 21. Now, coming to the facts of the case, the first impugned order has been passed ex-parte while issuing notice by which the order of discharge was stayed. There is nothing placed on record to show that till the second impugned order was passed, at any time, the High Court had given an opportunity to the appellant to be heard on the prayer for stay. The second impugned order runs into as many as twenty-six pages and involves 62 paragraphs, which, in substance, holds that as the order of discharge was no longer operative, the status of the appellant as an accused has been restored, and the....