This article is written by Prakhar Rathi, currently pursuing B.A.LLB (Hons) from the Department of Law, Aligarh Muslim University. This is an exhaustive article which deals with the Discharge under CrPC.
Table of Contents
Introduction
Under the Criminal Procedure Code, 1973, the Discharge Application is the remedy that is granted to the person who has been maliciously charged. If the allegations which have been made against him are false, this Code provides the provisions for filing a discharge application. If the evidence given before the Court is not sufficient to satisfy the offence and in the absence of any prima facie case against him, he is entitled to be discharged.
Classification of Criminal Cases
The two major classifications of criminal cases under the Code of Criminal Procedure are:
- Cases instituted on the basis of a police report (Section 238-243).
- Cases instituted otherwise than on police report based on the complaint (Section 244-247).
There are four types of the trial procedures provided under CrPC:
- Summary trials (Section 260-265),
- Trial of summons cases by Magistrates (Section 251-259),
- Trial of warrant cases by Magistrates (Section 238-250), and
- Trial before a court of Sessions (Section 225-237).
The procedure of warrant cases is used for the trial of warrant cases by the Magistrates and the trial before the court of sessions whereas trial of summons cases by Magistrates and summary trials are tried in a summons case trial.
What are the Summons Cases?
Section 2(w) of the CrPC defines ‘Summons case’ as a case that is related to an offence and it is also not a ‘warrant case’. It includes those offences other than warrant cases i.e, those offences which are not punishable with death, life imprisonment, or imprisonment exceeding two years.
What are Warrant Cases?
Warrant case is defined under Section 2(x) of the CrPC as a case of an offence which is punishable with death, life imprisonment, or imprisonment exceeding two years.
Discharge of accused in warrant cases on the basis of a police report
The regular procedure of law is that the police after completing its investigation files the final charge sheet under Section 173 of the code. Thereafter trial against the accused begins by the concerned Court. However, Section 239 and 227 of CrPC, provide provisions that before the charges are framed against an Accused person, he can be discharged. However, in warrant cases only, these provisions can be used by the Accused.
Discharging of accused in warrant case instituted on a police report before Magistrate
The general procedure of law is that the police, after completing its investigation, files the final charge sheet against the accused. Thereafter the accused is put to trial as the charges are framed against him, by the concerned Court. However, the Code of Criminal Procedure grants a procedure that states that the Accused person can be discharged before the charges are framed against him.
Section 239 of the Code of Criminal Procedure states when accused shall be discharged.
If, upon due consideration of the police reports and all the documents sent under Section 173 along with examinations of the accused, if any, as Magistrate thinks obligatory and after hearing prosecution as well as accused, the Magistrate considers the charge to be groundless against the accused, he shall discharge the accused and also record his reasons for doing so.
The significant value of the materials on record cannot be looked into at the stage of framing of a charge by the Magistrate and the materials brought on record by the prosecution against the accused have to be trusted as true at that stage. The emerging judicial view is that the Court cannot initiate an in-depth inquiry into the evidence at this stage.
Essential elements for Discharge
The Court will have to consider the Charge sheet and the Police Report submitted to it by the Police under Section 173, following are the essential elements:
- The Magistrate may, if he deems fit, examine the Accused.
- Thereafter the arguments of both the Prosecution and the Accused Parties and their versions would be heard versions.
- Grounds against the accused to be baseless- There should not be any evidence present against the accused. The Court also has to assure itself that there is no prima facie case against the accused.
If all the above conditions are fulfilled, then the Accused shall be discharged.
Whether the magistrate has to take cognizance of the material brought by the accused?
In the case of Satish Mehra v. Delhi Administration and Another reported in (1996) 9 SCC 766, the Hon’ble Apex Court held that, Under Section 239 of the code, the Magistrate has to give the prosecution and the accused a chance of being heard besides taking cognizance of the police report and the documents sent therewith. The Code makes it mandatory for the Court to give a hearing to the accused to determine whether it is essential to proceed to the next stage. It is a matter of the application of the judicial mind.
Nothing in the code restricts the scope of such an audience to oral arguments. If the accused produces any trustworthy material at that stage which might drastically affect even the very feasibility of the case, it would be very inappropriate to recommend that no such material shall be taken into consideration by the Court at that stage. The word ground includes the insufficiency of evidence to justify the charge.
When accused shall be discharged in Sessions trial
Section 227 of the Code defines that if the judge considers that there is no sufficient ground for proceeding against the accused, upon hearing the submissions of the prosecution and the accused in the behalf and consideration of the record of the case along with the documents submitted therewith, he shall discharge the accused and record his reasons also for so doing.
Only after considering allegations in the charge-sheet and the relevant case-law, the Discharge of an accused can be ordered.
Mandatory cases where Sessions Judge is bound to discharge:
- Where he is precluded from proceeding because of a prior judgment of High Court,
- Where the prosecution is clearly barred by limitation,
- Where the evidence produced is not sufficient,
- Where there is no legal ground for proceeding against the accused, or
- Where no sanction has been obtained.
How to decide Sufficient ground
As per Section 227 of the Code, the magistrate should ensure that there is no sufficient ground for proceeding, it means that no prudent person can conclude that there are grounds or even a single ground to sustain the charge against the accused. If the Sessions Judge is certain that the trial would only be a futile exercise or complete waste of time, he has the authority to discharge the accused.
For the purpose of deciding whether the grounds are sufficient for proceeding against an accused, the Court determines the question whether the material on record, if it is un-rebutted, is sufficient to make the conviction possible. It postulates the exercise of the judicial mind to the facts of the case to decide whether a case has been made out by the prosecution for trial.
How to decide a prima-facie case
It is only through the facts of each case through which the judge can determine if it is a prima-facie case and in this regard, it is neither possible nor desirable to formulate rules of universal application. However, if both of the views are possible and the Judge is convinced that the evidence presented before him gives rise to suspicion but not grave suspicion, he can discharge the accused. At this stage, he does not need to bother whether the trial will lead in conviction or not.
The test to be applied is whether the materials on record, if unrebutted, is sufficient to make conviction possible. The ground word used in the context is a ground for putting the accused on trial and not a ground for conviction. If the evidence produced is not sufficient for the judge to proceed against the accused, it may be a ground or that the prosecution is barred by limitation or as no sanction has been obtained, the accused cannot be proceeded with or due to a prior judgment of the High Court, he is precluded from holding the trial.
Whether the material which is produced by the accused can be looked into by the session’s court?
In the case of Satish Mehra v. Delhi Administration and Another reported in (1996) 9 SCC 766, the Hon’ble Supreme Court held that if the accused produces any convincing material at the stage framing of charge which might drastically affect the very sustainability of the case, it is unfair to suggest that no such material should be considered into by the court at that stage.
It was held that the main motive of granting a chance to the accused of making submissions as envisaged in Section 227 of the CrPC, is to assist the court to determine whether it is required to proceed to conduct the trial. It was also observed that nothing in the Code limits the ambit of such hearing to oral arguments only and, therefore, the trial court can consider the material produced by the accused at the stage observed under Section 227 of the Code.
The Judicial power of the Court at the time of considering the discharge application
The Magistrate cannot be assumed to be a post office to frame the charges at the instruction of the prosecution, and application of judicial mind to the facts of the case is necessary to determine whether a case has been made out by the prosecution for trial. In determining this fact, it is not mandatory to dive into the pros and cons of the matter by the court.
At the stage observed under Section 227, the Judge has to merely examine the evidence in order to determine whether or not the grounds are sufficient for proceeding against the accused. The nature of the evidence recorded by the police or the documents produced in which prima facie reveals that there is a suspicious situation against the accused so as to frame a charge against him before the court would be taken into account in order to find out the sufficiency of ground.
Discharge Post Framing of Charge
In the case of Tapati Bag v. Patipaban Ghosh reported in 1993 Cr.L.J 3932 (cal), it was held that if the Court considers that there are no sufficient grounds for proceeding against the accused, the accused has to be discharged, but if the Court is of the opinion after such consideration that there is ground for presuming that the accused has committed the offence which is exclusively triable by the Court of Session then the charge against the accused must be framed. Once the charges are framed, the accused is put to trial and thereafter either acquitted or convicted, but he cannot be discharged. Once charges are framed under Section 228 of the code, there is no back-gear for discharging the accused under Section 227 of the code. Discharge post framing of charge is not viewed in CrPC.
Discharge Not Acquittal
In the case of P Viswanathan Vs, A.K Burman, the Hon’ble Calcutta High Court held that the discharge of an accused under Section 227 of CrPC, is not tantamount to the acquittal of an accused. Under Section 227 of the code, the accused is released on the ground of non-availability of the materials collected by the officeduring the investigation, the Court does not absolve the accused from all the charges at that stage. The discharge may be due to inept inquiry and investigation. The discharged person can again be charged subsequently after proper investigation and collection of relevant materials. The basic intention of the legislature is to prevent one’s subjection to the judicial process without any foundation.
Review of a Discharge Order
In the case of Vishanu Murya vs the State of Rajasthan reported in 1990 CrLJ 1750 (Raj), it was held that a Discharge Order does not lead to acquittal as no trial has taken place. Where the Magistrate had discharged some of the accused after recording the evidence let in by the prosecution, but if the fresh materials are found against the discharged accused, he can consider the offence as it is not the review of the discharge order, earlier passed by the Magistrate.
Discharge of the accused in Cases Triable exclusively by Court of Sessions
In the case of Sanjay Gandhi vs Union of India reported in AIR 1978 SC 514, it was held that there is no such provision that permits the Magistrate to discharge the accused. Discharge order can be given only by a trial court and in respect of the offences exclusively triable by a court of session, the court of the Judicial Magistrate is not the trial Court.
Discharge of accused in Warrant Cases instituted on Complaint
Section 245 of CrPC: When accused shall be discharged;
1) If the Magistrate views that no case has been made out against the accused which, if unrebutted, would warrant his conviction, after taking all the evidence referred to in Section 244, for reasons to be recorded, the Magistrate shall discharge him
2) Nothing in this section can forbid a Magistrate from discharging the accused at any precedent stage of the case if he contemplates the charge to be groundless and the reasons shall be recorded by him.
Under Section 245(1), the Magistrate has to consider whether the evidence produced by the prosecution, if remains unrebutted, is sufficient to make conviction of the accused possible. If there is no convincing material on record against the accused, then the Magistrate shall proceed to discharge the accused under Section 245(1) CrPC.
Section 245(2) CrPC empowers the Magistrate to discharge the accused at any precedent stage of the case which means even before such evidence is led. However, the Magistrate has to come to the conclusion that the charge is groundless in order to discharge an accused under Section 245(2) CrPC. The Magistrate can take this decision even prior to the appearance of the accused before the Court or the evidence which is taken under Section 244 CrPC. The words ‘At any previous stage of the case’ written in Section 245(2) CrPC. brings clarity to this position.
What is the previous stage?
The previous stage in the context means that any stage prior to the evidence of the prosecution, under Section 244(1) of the code, is completed. Such stages would lie under Section 200 CrPC to Section 204 CrPC.
Discharge in Summons Case
Whether the magistrate is empowered to drop proceedings and discharge an accused in a Summons case which is instituted on a complaint has the power?
Section 251 of the CrPC states:
The substance of accusation to be stated – In a summons case, When the accused appears or is brought before the Magistrate, he should be made aware of the particulars of the offence of which he is accused, and the question shall be asked to him whether he pleads guilty or has any defence to make, but it shall not be obligatory to frame a formal charge. On a bare reading of Section 251 CrPC, it becomes clear that there is no particular power to discharge or drop proceedings granted to the Magistrate in a Summons Trial.
In the case of K.M. Matthew v. the State of Kerala reported in (1992) 1 SCC 217 in which the accused had asked for the recalling of the summoning order in a Summons Case. The Honorable Apex Court held that If there are no accusations made in the complaint related to the accused in the commission of the crime, then it is certain that the Magistrate has no jurisdiction to proceed further against the accused. It is upon the discretion of the accused to plead before the Magistrate is convinced on reconsideration of the complaint that there is no such offence for which the accused could be tried and that the process against him should not have been issued then the Magistrate may drop the proceedings. No specific provision is needed for the Magistrate to repeal the process or drop the proceedings.
The validity of the legal proposition set out in K.M. Mathew case came up for consideration before the Apex Court in the case of Adalat Prasad v. Rooplal Jindal & Ors reported in 2004 (7) SCC 338 where a three-Judge bench held that If the Magistrate issues process without any reason or basis, then the remedy lies in a petition under Section 482 of the Code, but the Magistrate is not empowered to review that order and recall the summons issued to the accused.
The decision in Adalat Prasad was reiterated by the Supreme Court in the case of Subramanium Sethuraman v. State of Maharashtra & Anr. reported in (2004) 13 SCC 324 (which was a Summons Case connected with the dishonour of cheque under Section 138 of the Negotiable Instruments Act, 1881), wherein it was held that: Discharge, Re-Consideration, Review, Recall of the order of issue of process under Section 204 of the Code of Criminal Procedure, is not viewed under the Cr.P.C in a Summons Case. Once the accused has been summoned by the Court, it is mandatory for the trial court to record the plea of the accused (as provided under Section 251 of the Code of Criminal Procedure) and the case has to be concluded and no law permits the dropping of proceedings in the midstream.
However, in the case of Bhushan Kumar v. State (NCT of Delhi) 2012 (5) SCC 424, the Hon’ble Apex Court held that the Magistrate can discharge an accused in a Summons Case. It was followed in a chain of decisions including Urrshila Kerkar v. Make My Trip (India) Private Ltd (2013) SCC Online Del.4563 with observations such as:
It is obvious that Apex Court in the case of Adalat Prasad v. Rooplal Jindal and Ors. (2004) 7 SCC 338 held that there cannot be recalling of summoning order, but as it was held in the backdrop of decisions of Hon’ble Supreme Court in Bhushan Kumar and Krishan Kumar, the aforesaid decision cannot be misunderstood to mean that once summoning order has been issued, the trial must follow. If it was meant to be so, then what is the motive of hearing accused at the phase of framing Notice as defined under Section 251 of the Code of Criminal Procedure. In the opinion of the Court, Supreme Court’s decision in Adalat Prasad cannot be interpreted to mean that proceedings in a summons complaint case cannot be discontinued against an accused at the phase of framing of Notice under Section 251 of the Code, even if an ex-facie case is not made out.
In the case of Satish Mehra v. Delhi Administration and Another (1996) 9 SCC 766, the Hon’ble Supreme Court held that if the accused produces any convincing material at the stage framing of charge which might drastically affect the very sustainability of the case, it is unfair to suggest that no such material should be considered into by the court at that stage.
The Supreme Court in the case of Amit Sibal v. Arvind Kejriwal (2016 SCC OnLine SC 1516) states that the trial court has no power to drop proceedings/discharge in a Summons Trial.
So relying on the Subramanium Sethuraman which is supported in the case of Amit Sibal v. Arvind Kejriwal and also provided under Cr.P.C, the conclusion is that no provision in the Code allows a ‘discharge’ or ‘dropping of proceedings’ in a Summons Case.
Difference between discharge and acquittal
Discharge of an accused can be done even before charges are framed whereas acquittal can be done only when the trial concludes.
Session Trial
Discharge: As defined under Section 227, if the Judge considers that there is no sufficient ground for proceeding against the accused, upon hearing the submissions of the prosecution and the accused in the behalf and consideration of the record of the case along with the documents submitted therewith, he shall discharge the accused and record his reasons also for so doing.
Acquittal: If the Judge considers that there is no proof or evidence that the accused has committed the alleged offence after evaluating the evidence given by the prosecution, the Judge exonerates the accused person under Section 232.
However, if the offender is not exonerated under Section 232, he is allowed to give his defence and evidence to the court. The court may acquit or convict the person under Section 233 after hearing the arguments of both sides.
Trial Of Warrant Cases By Magistrate
Discharge: As provided under Section 239, If, upon considering the police reports together with all the documents sent along with it under Section 173 including of making such examinations, if any, of the accused as Magistrate thinks obligatory and after giving an opportunity to the prosecution as well as accused of being heard, the Magistrate contemplates the charge to be groundless against the accused, he shall discharge the accused and also record his reasons for doing so.
Acquittal: As per Section 248, If the Magistrate finds the accused not guilty, he shall acquit the accused and record his reasons for doing so in any case under this Chapter in which a charge has been framed.
Discharge connotes that there is not enough evidence to proceed with the trial and not that the accused has not committed the said offence. Most importantly, if any evidence is collected, later on, the accused may be tried again.
Acquittal connotes that the court has held the accused innocent and once he has been acquitted, he cannot be tried again for the same offence.
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Acquittal |
Discharge |
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A person cannot be arrested for the same case in which he has been acquitted by the court. |
A person who has been discharged can be rearrested for further inquiry. |
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An acquittal can also be an outcome of the non-appearance of the complainant or compounding or withdrawal of offence. |
When a Magistrate acts with the less grave offence, it amounts to a discharge of serious charge, and the accused can be commanded to be committed. |
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An order of acquittal is a decision that is taken by the court only after full inquiry establishing that the accused is innocent. |
An order of discharge means that there is no prima facie evidence against the accused which can justify further inquiry in link to the charge; such order does not prove or establish anything regarding the guilt of the accused. |
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An acquittal forbids succeeding trial for the same offence with the same facts, or for any other offence with the same facts for which different charges made might have been made under Section 221(1) of CrPC against the accused. |
A discharge does not forbid the court from fresh proceedings if new or better evidence is available against the accused. |
Landmark Judgments
In the case of Smt. Rumi Dhar v. State of West Bengal & Anr. (2009) 6 SCC 364, the Hon’ble Supreme Court held that the learned Judge should go into the details of the accusations made against each of the accused persons while considering an application for discharge filed in terms of Section 239 of the Code, in order to determine to whether any case at all has been made out or not.
In the case of Manakshi Bala v. Sudhir Kumar, 1994 SCC (4) 142, the Court held that the Magistrate shall proceed in accordance with Sections 239 of the Code, at the time of framing of the charges. Under the given sections, it is indispensable for the Magistrate to consider the police report and the documents sent with it under Section 173 of the Code and give an opportunity to the prosecution and the accused of being heard and examine the accused if he feels necessary. After much consideration, examination, and hearing the Magistrate concludes that the charges are groundless, he has to discharge the accused in terms of Section 239 of the Code of Criminal Procedure.
In the case of Satish Mehra v. Delhi Administration and Another (1996) 9 SCC 766, the Hon’ble Supreme Court held that, Under Section 239 of the code of Criminal Procedure, the Magistrate shall grant the prosecution as well as the accused a chance of being heard besides taking cognizance of the police report and the documents sent therewith. The Code makes it mandatory for the Court to give a hearing to the accused to determine whether it is essential to proceed to the next stage. It is a matter of the application of the judicial mind. Nothing in the code restricts the scope of such an audience to oral arguments.
In the case of Union of India v. Prafulla Kumar Samal & Another, (1979) 3 SCC 4 the Hon’ble Supreme Court held that the words used in the context ‘not sufficient ground for proceeding against the accused’ show that the Judge cannot be assumed to be a post office to frame the charges at the instruction of the prosecution, and application of judicial mind to the facts of the case is necessary to determine whether a case has been made out by the prosecution for trial. In determining this fact, it is not mandatory to dive into the pros and cons of the matter by the court.
At the stage observed under Section 227, the Judge has to merely examine the evidence in order to determine whether or not the grounds are sufficient for proceeding against the accused. The nature of the evidence recorded by the police or the documents produced in which prima facie reveals that there is a suspicious situation against the accused so as to frame a charge against him before the court would be taken into account in order to find out the sufficiency of ground.
In the case of State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, A three-Judge Bench of Hon’ble Supreme Court held that Section 227 was enacted in the Code with the purpose of saving the accused from unnecessary harassment. It is assessed to forbid harassment of accused persons when the gathered evidential materials fall short of minimum legal requirements after investigation.
in the case of State Of Karnataka vs L. Muniswamy & Ors, 1977 AIR 1489, 1977 SCR (3) 113, the Hon’ble Apex Court observed that it would be a complete waste of public resources and time to allow the proceedings to continue against the accused when there is no evidence which is sufficient for any Court to could reasonably convict them for any offence related with the assault on the complainant’
Conclusion
The Legal Maxim ‘Let a hundred guilty be acquitted, but one innocent should not be convicted’ is the guiding principle behind rules of the procedure and evidence guiding and inspiring our courts. When any law relating to procedure and evidence requires some sort of interpretation, the interpretation is made usually in favour of the accused, which is, upholding the presumption of innocence.
The reason for this is that an innocent man should not be convicted for a crime that he did not commit, otherwise people did not have faith and respect for the justice delivery system. Therefore, I may conclude this article by saying that when, in any warrant, case allegations are made against the accused but there is no sufficient evidence that could end the accused in conviction, it is the duty of the Court to discharge the accused.
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