DISCHARGE OF ACCUSED

IN CRIMINAL CASES

A. 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.

B. Classification of Criminal Cases: The two major classifications of criminal

cases under the Code of Criminal Procedure are:

a. Cases instituted on the basis of a police report (Sections 238-243).

b. Cases instituted otherwise than on police report based on the
complaint (Sections 244-247).

C. There are four types of the trial procedures provided under Cr.P.C.:
a. Summary trials (Sections 260-265),
b. Trial of summons cases by Magistrates (Sections 251-259),
c. Trial of warrant cases by Magistrates (Sections 238-250), and
d. Trial before a court of Sessions (Sections 225-237).

D. Warrant Case
a. 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.

b. Discharge of accused in warrant cases on the basis of a police report.

i. The regular procedure of law is that the police after

completing its investigation files the final report/charge sheet
under Section 173 of the code. Thereafter trial against the
accused commences by the concerned Court. However,
Section 239 and 227 of Cr.P.C, provide that before the charges
are framed against an Accused person, he can be discharged.

ii. Section 239 of the Code of Criminal Procedure states when

accused shall be discharged. If, upon due consideration of the
 police report and all the documents sent under Section 173
along with examination 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 the reasons for doing so.

E. Essential elements for Discharge:

a. The Court have to consider the Charge sheet and documents
appended thereto by the Police under Section 173, Cr.P.C:
b. The Magistrate may, if he deems fit, examine the Accused.
c. Thereafter the arguments of both the Prosecution and the Accused
should be heard.
d. Grounds against the accused to be baseless- There should not be any
evidence present against the accused. If the Court considers that
there is no prima facie case against the accused.

If all the above conditions are fulfilled, then the Accused shall be
discharged.

F. Whether the magistrate has to take cognizance of the material brought by

the accused?

a. 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 Cr.P.C, 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
Magistrate should apply judicial mind while considering the
discharge application.

b. If the accused produces any trustworthy material at that stage which

might drastically effect 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.

G. When accused shall be discharged in Sessions trial:

a. 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 and
consideration of the record of the case along with the documents
submitted therewith, he shall discharge the accused and record
reasons also for doing so.
 b. Mandatory cases where Sessions Judge is bound to discharge:
i. Where he is precluded from proceeding because of a prior
judgment of High Court,
ii. Where the prosecution is clearly barred by limitation,
iii. Where the evidence produced is not sufficient,
iv. Where there is no legal ground for proceeding against the
accused, or
v. Where no sanction has been obtained.

H. Discharge of Accused and its Procedure under Section 227 of Cr.P.C.

a. Section 227 Cr.P.C deals with “discharge of the accused in a
“Sessions Cases”. Further, Section 226 Cr.P.C also must be read
together. There are “two” important words in Section 227 Cr.P.C.
i. Hearing submission of the accused
ii. “No sufficient grounds for proceeding against the accused”.
iii. Judgments
1. State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC
568
2. Union of India Vs. Prafulla Kumar Samal and another
1979 (3) SCC 4
3. Proper basis for framing of charge Onkar Nath Mishra
v. State (NCT of Delhi), (2008) 2 SCC 561
b. After receipt of case documents supplied under section 207 Cr.P.C
whether the accused can bring it to the notice of the Court, that no
material is available to proceed the case against him and request for
discharge.
i. Dattatraya Samant (Dr.) v. State of Maharashtra, 1980 SCC
OnLine Bom 170
ii. Public Prosecutor v. Throvagunta Doodka Khajavalli, 1979
SCC OnLine AP 57 | Discharge is a Judicial order.
iii. Ramaswamy Gounder v. State, 1981 SCC OnLine Mad 52
iv. Ajay Kumar Parmar v. State of Rajasthan, (2012) 12 SCC 406

I. Guiding Principles on Discharge and Framing of Charge

a. Hon’ble Supreme Court formulated the following 7 guiding
principles.
i. The judge while considering the question of framing the
charges U/Sec. 227 Cr.P.C has the undoubted power to sift and
weigh the evidence for the limited purpose of finding out
whether or not a prima facie case against the accused has been
made out. To determine prima facie case would depend upon
the facts of each case.
 ii. Where the materials placed before the court disclose grave
suspicion against the accused which has not been properly
explained, the court will be fully justified in framing a charge
and proceeding with the trial.
iii. The court can not act merely as a post office or a mouth piece
of the prosecution but it has to consider the broad probabilities
of the case. There cannot be a roving enquiry into the pros and
cons of the matter and weigh the evidence as if a trial was
being conducted.
iv. On the basis of material on record if the court could form an
opinion that the accused might have committed the offence, it
can frame the charge.
v. At the time of framing of the charges, the probative value of
the material on record can not be gone into but before framing
of charge the Court must apply it’s judicial mind on the
material placed on record and must be satisfied that the
commission by the accused was possible.
vi. At the stage of Sec.227 and 228 Cr.P.C, the court is required
to evaluate the material and documents on record with a view
to find out the existence of all the ingredients constituting the
alleged ofence but the court cannot be expected to presume
that the prosecution story is gospel truth.
vii. If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the trial
judge will be empowered to discharge the accused
irrespective of the result of the trial.

b. Legal Authorities on the above seven points:

i. Palwinder Singh v. Balwinder Singh, (2008) 14 SCC 504: The
jurisdiction of Sessions Judge at the time of discharge is very
limited. Charges can also be framed on the basis of strong
suspicion. Marshaling and appreciation of evidence is not in
the domain of the court at that point of time.
ii. Sajjan Kumar v. CBI, (2010) 9 SCC 368: At the stage of
framing of Charge U/Sec. 228 Cr.P.C or while considering the
discharge petition filed U/Sec. 227 Cr.P.C, it is not for the
Judge concerned to analyse all the materials including pros
and cons, reliability or acceptability etc; The evidentiary value
and its credibility and veracity has to be considered at the
stage of trial.
iii. State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709: At the
Stage of consideration of an application for discharge, Court
has to proceed with an assumption that the materials brought
 on record by prosecution are true and to evaluate the said
materials and documents with a view to find out whether the
facts emerging there from taken at their face value disclose
the existence of all the ingredients constituting the offence.

J. Whether the material which is produced by the accused can be looked into
by the session’s court?
a. 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 effect 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.

K. Discharge Post Framing of Charge:

a. Ratilal Bhanji Mithani v. State of Maharashtra, (1979) 2 SCC 179:
After framing of charge the question of discharge does not arise. The
same view was taken in the case of Stree Atyachar Veerodi Parishadh
Ver. Dilip Nathumal Chordiya (1989 SCC(1) 715).

b. Tapati Bag v. Patitpaban Ghosh, 1993 SCC OnLine Cal 30: 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 Cr.P.C.

L. Discharge of the accused in Cases Triable exclusively by Court of Sessions:

a. Sanjay Gandhi v. Union of India, (1978) 2 SCC 39: 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.
b. Sheoraj Singh Ahlawat v. State of U.P., (2013) 11 SCC 476: At the
time of framing of charge the court is required to evaluate the
material and documents on record to decide whether there is a
ground for presuming that the accused had committed the offence.
There is no need to evaluate the sufficiency of evidence to convict
the accused. Materials brought on record by the prosecution can be
believed to be true, but their probative value cannot be decided at
that stage. The accused is entitled to urge his contentions while
entertaining the discharge application only on the material submitted
by the prosecution, but he is not entitled to produce any material at
that stage and the court is not required to consider any such material.
If two views are possible and one of them gives rise to suspicion
only as distinguished from grave suspicision, the trial judge is
empowered to discharge the accused, irrespective of the result of the
trial.

c. R.S. Mishra v. State of Orissa, (2011) 2 SCC 689 :- Victim has right
to be heard during Discharge. : Normally a victim is not participating
in discharge proceedings U/Sec. 227 Cr.P.C, if in a case wherein the
victim is not sufficiently reported by the prosecution and in cases
where the interest of the victim adequately protected, there is
nothing wrong on the part of the victim in stepping in with a request
for being heard. In such cases the version of the victim should not
remain unheard.

d. State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515: At the stage

of considering an application for discharge, the court must proceed
on the assumption that the material which has been brought on
record by the prosecution is true and evaluate the material in order
to determine whether the facts emerging from the material taken on
its face value, disclose the existance of the ingredients necessary to
constitute the offence.

e. State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699: The

Hon’ble Supreme Court Held that the object of the provisions which
require the Sessions Judge to record its reasons while entertaining
Discharge petition U/Sec. 227 Cr.P.C is to enable the superior court
to examine illegality of the impunged order. In that case the trial
court did not assign any reason in the impunged order while refusing
to discharge the accused as such it suffers from serious infirmity.
 f. State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568: A three
judge bench of Hon’ble Supreme Court held that Sec. 227 Cr.P.C is
enacted in the Code for the purpose of saving the accused from
unnecessary harassment, by saying prolonged trial.

M. APPLICATION FOR DISCHARGE IN CASES INSTITUTED BASING

ON POLICE REPORT AND OTHER WISE.( SECTION 239 OF CR.P.C.)

a. In the warrant-case instituted upon police complaint, the Magistrate

has to consider the Final Report, statement of witnesses recorded
under Section 161 Cr.P.C., documents, if he feels necessary he can
examine the accused also and if he finds the charges (allegations) are
groundless, he can discharge the accused under Section 239 Cr.P.C.,
or frame charges under Section 240 Cr.P.C. However, in a case
instituted upon a private complaint, the procedure for charge or
discharge is completely different from a police case.

b. A close reading of Section 245(2) Cr.P.C., would show that in a

warrant- case instituted upon a private complaint, after recording
evidence, discharge petition can be entertained.

c. In a police case there will be only one cross-examination. However,

in a private complaint case, there will be two cross- examinations.
In a police case, trial commences on issuing copies under Section
207 Cr.P.C and on hearing the accused will be examined U/Sec. 227
and 239 Cr.P.C.

d. But, in a private complaint case, trial will commence only after

framing charges under Section 246 Cr.P.C., that will be only after
recording evidence under Section 244 Cr.P.C. While recording
preliminary evidence under Section 244 Cr.P.C., the accused can
cross-examine the witnesses then and there or he may defer the cross
to be done after framing of the charges. After framing of charges,
again the accused can cross-examine the witnesses. It is pertinent to
note that at that stage the quantum of evidence adduced is not the
choice of the accused, but it is the choice of the complainant, which
would be sufficient to frame charges in the opinion of the
complainant.

N. Discharge in Warrant case

a. Section 239 Cr.P.C is the provision under which the Magistrate can
discharge the accused in a “Warrant Case” based on
i. The Police report and the documents filed U/Sec. 173 Cr.P.C.
 ii. Opportunity must be given to both prosecution and the
accused. The Court has to hear them.
iii. Magistrate must feel that allegations are groundless.

b. The Magistrate has to give an opportunity of being heard, before

considering the police report and documents to consider the
documents and the evidence placed by the accused at the time of
discharge. The Hon’ble Supreme Court held in the (3) decisions.
i. Satish Mehra Vs. Delhi Administration [(1996) 9 SCC 766]
ii. State of Orissa Vs. Debendra nath pardhi ](2005)1 SCC 568]
iii. Rajiv Thapar and others Vs. Madan Lal Kapur [AIR 2013 SC
1056]

c. Munna Devi v. State of Rajasthan, (2001) 9 SCC 631: Reasoned

order is necessary at the time of framing charge. The standard proof
for discharge U/Sec. 239 Cr.P.C is the non existence of prima facie
case, it means when no prima facie case is made out.

d. Manakshi Bala Vs. Sudhir Kumar, 1994 SCC (4) 142: The
Magistrate is required to consider the Police report and the
documents submitted U/Sec. 173 Cr.P.C and he should take decision
regarding discharge after hearing the both parties, he has to
discharge the accused U/Sec. 239 Cr.P.C, if the charge is groundless.

e. State of W.B. v. Swapan Kumar Guha, (1982) 1 SCC 561: Once

charges framed U/Sec. 240 Cr.P.C, if the accused aggrieved he
should invoke the revisional jurisdiction of High Court or Sessions
Judge claiming that the charge sheet U/Sec. 173 Cr.P.C and the
documents does not disclose any ground to presume that he had
committed any offence for which he was charged.

f. State of West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274: It

may be noted that at the stage of framing charges, the prosecution
evidence will not be commenced. The magistrate had therefore to
consider the material placed before him by the I.O. At this stage the
truth, veracity and effect of evidence which prosecutor proposes to
adduce are not to be meticulously judged. The finding with regard
to guilt of accused cannot be exactly to be applied nor any
presumption could be drawn. The only thing is to be taken into
consideration regarding the existance of factual ingredients
constituting the offence as alleged.
 g. Smt. Rumidhar Ver. State of West Bengal 2009 (6) SCC 364: The
Hon’ble Supreme Court held that the Magistrate while entertaining
the discharge petition U/Sec.239 Cr.P.C he has to go into the details
of allegations made against each accused in order to form an opinion
as to whether any primafacie case is made out or not as well as strong
suspicion in regard to sub serve the requirement of law.

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 if he did not commit any offence, otherwise people did not have
faith and respect for the justice delivery system.

Drafted By Abhijit Mishra