The Supreme Court on Friday (February 28) ruled that High Courts should generally refrain from staying discharge orders issued by trial courts in criminal cases.

"Stay on discharge should never be granted unless circumstances are exceptional," the Court stated.

The Court further stated that even when an appellate court exercises its power under Section 390 CrPC to arrest an accused during an appeal against acquittal, granting bail should remain the norm.

"And even for action under section 390 CrPC, it should be bail and not jail," Justice Abhay S. Oka said during the pronouncement.

A bench comprising Justice Abhay Oka and Justice Ujjal Bhuyan delivered its judgment on a plea filed by Sikh leader Sudershan Singh Wazir, who challenged the Delhi High Court's order staying his discharge in a murder case and directing him to surrender. 

The case pertains to the 2021 murder of former National Conference MLC Trilochan Singh Wazir, in which Sudershan Singh Wazir, the former President of the Jammu and Kashmir State Gurdwara Parbandhak Board, is among the accused.

On October 26, 2023, the trial court discharged Sudershan Singh Wazir along with co-accused Balbir Singh, Harpreet Singh Khalsa, and Rajinder Chaudhary, while retaining charges against another accused, Harmeet Singh. Subsequently, the prosecution challenged this order in revision proceedings before the Delhi High Court. 

On November 4, 2024, the Delhi High Court stayed the trial court's discharge order and directed Wazir to surrender, reasoning that his release had become invalid due to the stay. The court emphasized that Wazir could not continue to benefit from an order under appellate scrutiny and stated that failing to secure his custody would render the stay ineffective. However, it clarified that Wazir was free to apply for bail before the trial court, which would decide the matter independently on its merits.

On November 11, 2024, the Supreme Court issued notice on Wazir's plea challenging the Delhi High Court's order. It stayed the direction for his surrender and ruled that trial proceedings against him would not continue until further notice.

The Supreme Court questioned the legality of staying a discharge order, with Justice Abhay Oka remarking, “How can an order of discharge be stayed? Staying an order of discharge is completely unheard of.” During the hearing on January 28, 2024, the Court raised concerns about the implications of the High Court’s ex parte stay, noting that it effectively subjected Wazir to trial despite the discharge order remaining intact.

Justice Oka termed the High Court's order as “absurd.”

Additional Solicitor General Rajkumar Bhaskar Thakare defended the High Court’s decision, arguing that it exercised its powers under Sections 397 and 401 CrPC after finding a prima facie case of “non-application of mind” in the discharge order, which he described as a “mini-trial.”

The victim’s counsel supported the stay, contending that the discharge order was “absolutely incorrect ex facie” and that the High Court merely preserved the status quo while allowing Wazir to apply for bail.

However, Justice Oka expressed skepticism about the bail process in such cases, highlighting potential legal complexities and delays.

The Supreme Court also raised concerns about due process under Article 21 of the Constitution, questioning how Wazir’s release following a valid discharge order could be deemed invalid without the order being formally set aside.

Case no. – Crl.A. No. 536-537/2025

Case Title – Sudershan Singh Wazir v. State (NCT of Delhi) and Ors.