High courts can stay discharge orders only in rare cases: SC

NEW DELHI: Observing that staying a trial court's reasoned order to discharge an accused in a criminal case resulted in curtailing the liberty granted to him, Supreme Court on Friday said high courts should stay an order only in rare and exceptional cases when the discharge order prima facie looked "perverse".
A bench of Justices Abhay S Oka and Ujjal Bhuyan said a discharged accused stood on a higher pedestal than an accused who was acquitted after a full trial as discharge order was passed at the threshold when no incriminating material was found against the person. It said staying of discharge order in such cases resulted in the person becoming an accused again.
"An order staying the order of discharge is a very drastic order which has the effect of curtailing or taking away the liberty granted to the accused by the discharge order. As a result of the order staying the order of discharge, the order of discharge ceases to operate, and the sessions court can proceed to frame charges against the accused and try him further. Thus, the stay of the discharge order has a grave consequence of depriving an accused of the liberty granted under the discharge order," the bench said.
The court set aside Delhi high court's order which had stayed a discharge order without hearing the accused. SC agreed with senior advocate Siddharth Luthra who, appearing for the petitioner, said the consequence of the stay order was that trial would proceed against the petitioner even though he stood discharged.

"It is only in rare and exceptional cases, where the order of discharge is ex-facie perverse, that the revisional court can take the extreme step of staying that order. However, such an order should be passed only after giving an opportunity of being heard to the accused. Moreover, while granting the stay, the court must mould the relief so that the trial does not proceed against the discharged accused," the bench said.
"When a revision application challenging the order of discharge is admitted for hearing, the high court may exercise power under Section 390 by directing the person discharged to appear before the trial court and by directing the trial court to admit him to bail on appropriate terms and conditions. If such an order is passed after the admission of the revision application against the order of discharge, it is a sufficient safeguard for ensuring 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," it added.