“How Can There Be Interim Stay On Discharge? Tomorrow, Courts Will Grant Interim Stay On Acquittal!” Supreme Court Questions HC's Order

The Supreme Court on Tuesday (January 28) questioned the implications of Delhi High Court's decision to grant an ex parte stay on order discharging a murder accused, observing that it effectively subjects the accused to trial without even setting aside the discharge order.A bench comprising Justice Abhay S. Oka and Justice Ujjal Bhuyan was hearing a plea filed by Sikh leader Sudershan Singh Wazir, challenging the Delhi High Court's order that stayed his discharge in a murder case and directed him to surrender.Justice Abhay S. Oka questioned the rationale behind staying an order of discharge, stating that it allowed the trial to proceed even though the discharge order had not been set aside.He questioned, “Is it not the effect of staying the discharge order that the trial court is free to proceed with the trial even before discharge is set aside? HC has rendered the release of the accused invalid.” He further remarked, “How there can be interim stay of order of discharge? Tomorrow court will grant interim stay of order of acquittal. Tomorrow someone will stay order of acquittal and say that person should be taken into custody!”The counsel for victim's son submitted that the High Court had allowed Wazir to apply for bail. Justice Oka expressed scepticism, stating, “Person is discharged. Notwithstanding the fact that order of discharge is not set aside, person is taken into custody. Then he will first apply to sessions Court. Sessions Court will not grant, High Court will not grant. He has to come to Supreme Court. Is this the way our legal system works?” He added, “Our legal system is such that even complete justice is done even to Ajmal Kasab. This is our legal system. Please remember that.” Justice Oka also questioned, “If in this manner person is taken into custody, later on, the petition challenging order of discharge is dismissed. Will the State pay compensation to such person who is detained? One year, two years, four years High Court could take time to decide revision?”Highlighting the principles of granting interim relief, Justice Oka stated, “Ex parte stay on order of discharge is granted. So person has to face trial, though he is discharged! Basic principle is, interim relief has to be in the aid of final relief. Now your grant of stay is not in the aid of final relief…Even if that stay is not granted, court is capable of granting final relief of setting aside order of discharge. At highest High Court have passed an order under section 390 (CrPC) directing him to furnish bail because revision application is pending.” He termed the High Court's order as absurd, observing, “This is drastic order. He gets discharged, revisional court stays the discharge then person faces trial! This is absurd.”Additional Solicitor General Rajkumar Bhaskar Thakare submitted that the High Court had exercised power under Section 397 read with Section 401 of the CrPC and found a prima facie case that the discharge order was bad.Justice Oka pressed for recorded reasons, asking, “Show us where is the reason recorded that prima facie order is wrong order of discharge. Where is that finding recorded? It says one sentence, prima facie prosecution submission appears to have substance. And there is an ex-parte stay on order of discharge! Where are we going?” He clarified, “No one is questioning the power of revisional court to stay an order. Question is, how can stay of discharge be granted and person is compelled to face trial? It is absurd.”The ASG argued that the trial court's discharge order suffered from “non-application of mind” and amounted to a “mini trial.” Justice Oka responded, “You argue that in revision. Naturally if the discharge order is set aside he will have to face trial.”Justice Oka repeatedly pointed out the implications of such an ex-parte stay. “The Court goes to the extent of saying that order is invalid and he had been ordered to be taken into custody. If appeal against acquittal is admitted action under Section 392 CrPC is taken, all that he has to do is to take bail before the court. He is not taken into custody. Here, the court says that the release itself has become invalid. How can Court say this? The order of discharge is not set aside. How the release has become invalid? There's something like due process of law, Article 21.”The ASG urged the Court to balance societal interests and victims' rights. He also sought two weeks' time to file a counter affidavit. However, Justice Oka strongly criticised the practice of filing counters in matters challenging High Court orders. He stated, “Now we want to tell members of the bar this wrong practice of filing counter in every matter must be stopped. If orders of the High Court are challenged, there is no material which is placed on record which is not part of the High Court records. Why should counter be filed?”The victim's counsel argued that the High Court's stay did not necessarily mean that Wazir's trial will proceed. He contended that the High Court's...

“How Can There Be Interim Stay On Discharge? Tomorrow, Courts Will Grant Interim Stay On Acquittal!” Supreme Court Questions HC's Order

Amisha Shrivastava

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