DISCHARGE APPLICATION IN CRIMINAL CASES:
Under Criminal Procedure Code.1973 Discharge
application is the remedy provided to the person who has been charged
maliciously. If the false allegations have been made against him, he can file
an application for discharge. He is entitled to acquittal if the evidence provided
to the court is not sufficient to prove the offence.
This application can be filed even before the
charges have been set against him if the judge contemplates that there are no
sufficient grounds available for implementing the proceedings against the
accused.
The discharge application can only be filed against warrant cases. Warrant
cases consist of serious crimes that are punishable with death or imprisonment
more than 2 years. A warrant is a document or order that empowers the Police to
arrest a person holding criminal charges.
1. Classification of
Criminal Cases
There
are two major classifications of criminal cases under Cr.P.C:
(1) Cases instituted basing on police report
(2) Cases instituted on complaint
Further
the Cr.P.C provides for four types of trial procedure. They are
2. Trial before a court of Sessions,
ii. Trial of warrant
cases by Magistrates,
iii. Trial of summons cases by
Magistrates, and
iv. Summary
trials. Both the trial before the court of sessions and warrant cases
by Magistrates are tried under the procedure of warrant cases and
the remaining two are tried in a summons cases trial.
3. What are Summons Cases?
Sec.2 (w) Cr.P.C:- ''Summons – case'' means a case relating to
an offence and not being a warrant case.
4. What are Warrant Cases?
Sec.2(x) Cr.P.C: ''Warrant case'' means a case relating to an
offence punishable with death, imprisonment for life or imprisonment for a term
exceeding two years.
5. Contents of discharge:
While
receiving a discharge application, the court has to consider the following
facts:
i.
The report and charge sheet submitted by police under section 173 of Cr.PC.
ii.
Adequate opportunity to be heard has been given to the prosecution
and the accused.
iii.
The magistrate thinks through the charges as false and unsubstantiated.
6. Discharge of accused in Warrant Cases
instituted basing on Police Report
The general process of law is that after the police on completing its
investigation, files the final charge sheet against the accused under
section.173 Cr.P.C. Thereafter the accused is put to trial for framing of
charges against him, by the concerned Court. However there lies a provision under section.239
and 227 of Code of Criminal Procedure that the Accused person can be discharged
before the charges are framed against him. These provisions can be resorted to
by the Accused in warrant cases only.
7. When accused shall be discharged in warrant case instituted on police report before Magistrate
Section.239 Cr.P.C,
When accused shall be discharged. - If, upon considering the police report and
the documents sent with it under Section.173 and making such examination, if
any, of the accused as the Magistrate thinks necessary and after giving the
prosecution and the accused an opportunity of being heard, the Magistrate
considers the charge against the accused to be groundless, he shall discharge
the accused, and record his reasons for so doing.
At the stage of
framing of a charge by magistrate, probative value of the materials on record
cannot be gone into, the materials brought on record by the prosecution have to
be accepted as true at that stage. The crystallized judicial view is that the Court
cannot conduct a deep roving enquiry into the evidence at this stage.
8. Whether the material produced by accused can be looked into by Magistrate?
In Satish
Mehra v. Delhi Administration and Another reported in (1996) 9 SCC 766,
the Hon’ble Apex Court observed that; Under Section.239 of the Code (which
deals with trial of warrant cases on police report). The Magistrate has to
afford the prosecution and the accused an opportunity of being heard besides
considering the police report and the documents sent therewith. The Code
enjoins on the Court to give audience to the accused for deciding whether it is
necessary to proceed to the next Stage. It is a matter of exercise of judicial
mind. There is nothing in the code which shrinks the scope of such audience to
oral arguments. If the accused succeeds in producing any reliable material at
that stage which might fatally affect even the very sustainability of the case, it is unjust to
suggest that no such material shall be looked into by the Court at that stage.
Here the "ground" may be any valid ground including insufficiency of
evidence to prove charge.
9. When accused shall be discharged in Sessions trail
Section.227 of Cr.P.C
provides that if, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the submissions of the accused
and the prosecution in this behalf, the judge considers that there is no
sufficient ground for proceeding against the accused,
he shall discharge the accused and record his reasons for so doing. Discharge
can be ordered only after considering averment in charge-sheet and the relevant case-law.
10. The Sessions Judge is bound to discharge the accused in the
following cases:
(a) Where the evidence produced is not sufficient
(b) Where there is no legal ground for
proceeding against the accused
(c) Where no sanction has been obtained
(d) Where the prosecution is clearly barred by limitation or
(e) Where he is precluded from proceeding because of a prior judgment of High Court.
11. How to determine Sufficient ground
There is no sufficient
ground for proceeding” means that no reasonable person can come to the
conclusion that there is any ground whatsoever to sustain the charge against
the accused. If the Sessions Judge is almost certain that the trial would only
be an exercise in futility or sheer waste of time, he has to discharge the
accused For the purpose of determining whether there is sufficient ground
for proceeding against an accused, the Court possesses a comparatively
wider discretion to determine the question whether the material on record, if un-rebutted
is such on which a conviction can be said to be reasonably possible. the words “not sufficient ground
for proceeding against the accused” appearing in the Section.227 postulate
exercise of judicial mind on the part of the judge to the facts of the case in
order to determine whether a case for trial has been made out by the
prosecution. However, in assessing this fact, the Judge has the power to shift
and weigh the material for the limited purpose of finding out whether or not a
prima-facie case against the accused has been made out.
12. How to determine prima-facie case
The test to determine
a prima-facie case depends upon the facts of each case and in this regard it is
neither feasible nor desirable to lay down a rule of universal application. By
and large, however, if two views are equally possible and the Judge is
satisfied that the evidence produced before him gives rise to suspicion only as
distinguished from grave suspicion, he will be fully within his right to
discharge the accused. At this stage, he is not to see as to whether the trial
will end in conviction or not. The broad test to be applied is whether the
materials on record, if un-rebutted, make a conviction reasonably possible.
The word ‘ground’ in
the context is not a ground for conviction, but a ground for putting the
accused on trial. The ground may be that the evidence produced is not
sufficient for the judge to proceed against the accused or it may be that the
Sessions Judge finds that the accused cannot be proceeded with as no sanction
has been obtained or that the prosecution is barred by limitation or that
he is precluded from
holding the trial because of a prior judgment of the High Court.
13. The ambit and scope of power of the Court at the time of
considering the discharge application
In Union of India Vs.
Prafulla Kumar Samal & Another, (1979) 3 SCC 4 the Apex court in paragraph
No 7 held that:
“The words “not sufficient ground for proceeding against the
accused” clearly show that the Judge is not
a mere post office to frame the charge at the behest of the
prosecution, but has to exercise his judicial mind to the facts of the case in
order to determine whether a case for trial has been made out by the
prosecution. In assessing this fact, it is not necessary for the court to enter
into the pros and cons of the matter or into a weighing and balancing of evidence and
probabilities which is really his function after the trial starts. At the stage of Section.227, the Judge
has merely to sift the evidence. in order to find out whether or not there is
sufficient ground for proceeding against the accused. The sufficiency of ground
would take within its fold the nature of the evidence recorded by the police
or the documents produced
before the court which ex facie disclose that there are suspicious
circumstances against the accused so as to frame a charge against him.”
A Three-Judge Bench of Hon’ble Apex Court in State
of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568, it was
held that Section 227 was incorporated in the Code with a view to save the
accused from prolonged harassment which is a necessary concomitant of a
protracted criminal trial. It is calculated to eliminate harassment to accused
persons when the evidential materials gathered after investigation fall short
of minimum legal requirements.
14. Whether the material produced by accused can be looked into by
session’s court?
In Satish
Mehra v. Delhi Administration and Another reported in (1996) 9 SCC
766, the Hon’ble Apex court observed that if the accused succeeds
in producing any reliable material at the stage of taking cognizance or framing
of charge which might fatally affect even the very sustainability of the case,
it is unjust to suggest that no such material should be looked into by the
court at that stage. It was held that the object of providing an opportunity to
the accused of making submissions as envisaged in Section 227 of the Cr.P.C.,
is to enable the court to decide whether it is necessary to proceed to conduct
the trial. If the materials produced by the accused even at that early stage
would clinch the issue, why should the court shut it out saying that such
documents need be produced only after wasting a lot more time in the name of
trial proceedings. It was further observed that there is nothing in the Code
which shrinks the scope of such audience to oral arguments and, therefore, the trial court would be within
its power to consider even material which the accused may produce at the stage
contemplated in Section.227 of the Code.
15. Nature of jurisdiction to be exercised by the
Court at the time of discharge
While considering the discharge application, the Court is to
exercise its judicial mind to determine whether a case for trial has been made
out or not. in such proceedings, the Court is not to hold the mini trial by
marshalling the evidence.
16. Discharge Post Framing of Charge
Once the charge has been framed, the accused has to be put on
trial and thereafter convicted or acquitted, he cannot be discharged.
Discharge post framing
of charge is not contemplated in Cr.P.C-Held in Tapati Bag Vs
Patipaban Ghosh reported in 1993 Cr.L.J 3932(cal).
17. Is the Magistrate obliged to Record Reasons
In Sankaranda
Nayak vs State of Orissa reported in 2001(1) crimes 564 (569) it was
held that the Magistrate is obliged to record his reasons if he decides to
discharge the accused.
18. Discharge Not Acquittal
The discharge of an accused under Sec.227
Cr.P.C., does not tantamount to acquittal of an accused. P
Vishwanathan Vs A.K Burman reported in 2003 Cr L J 949 (959) (cal
– DB)
19. Review of Order of Discharge:-
An order of discharge
under this section does not amount to acquittal as no trial has taken place and
as such fresh trial can be held and for fresh trial, cognizance can be taken on
the basis of fresh materials. Where the Magistrate had discharged some of the
accused but after recording the evidence let in by the prosecution, fresh
materials were found against the discharged accused, he can take cognizance of
the offence as it is not a case of reviewing the order of discharge passed by
the Magistrate earlier. It was held in Vishanu Murya
vs State of Rajasthan reported in 1990 cr L J 1750 (Raj)
20. Discharge of the accused by Magistrate in Cases exclusively
Triable by Court of Sessions
There is no provision
which empowers the Magistrate to discharge the accused. Power of discharge can
be exercised only by a trial court and the court of the Judicial Magistrate is
not the trial Court in respect of the offences exclusively triable by a court
of session. Held in Sanjay Gandhi vs Inion of India reported in
AIR 1978 SC 514
21. Discharge of accused in Warrant Cases
instituted basing on Complaint
Sec 245 Cr.P.C.: When
accused shall be discharged;
1. If upon taking all the evidence referred
to in section 244, the Magistrate
considers, for reasons to be recorded,
that no case against the accused has been made out which, if unrebutted, would
warrant his conviction, the Magistrate shall discharge him.
2. Nothing in this section shall be deemed
to prevent a Magistrate from discharging the accused at any previous stage of
the case if, for reasons to be recorded by such magistrate, he considers the
charge to be groundless.
There is a clear
difference in Sections.245(1) and 245(2) of the Cr.P.C. Under Section.245(1),
the Magistrate has the advantage of the evidence lead by the prosecution before
him under Section.244 and he has to consider whether if the evidence remains
unrebutted, the conviction of the accused would be warranted. If there is no
discernible incriminating material in the evidence, then the Magistrate
proceeds to discharge the accused under Section 245(1) Cr.P.C.
The situation under
Section.245(2) Cr.P.C. is, however, different, under Sub-section(2), the
Magistrate has the power of discharging the accused at any previous stage of
the case, i.e., even before such evidence is lead. However, for discharging an
accused under Section.245(2) Cr.P.C., the Magistrate has to come to a finding
that the charge is groundless. There is no question of any consideration of
evidence at that stage, because there is none. The Magistrate can take this
decision before the accused appears or is brought before the Court or the
evidence is led under Section.244 Cr.P.C. The words appearing in Section.245(2)
Cr.P.C. "At any previous stage of the case", clearly bring out this position.
What is that "previous
stage"
The
previous stage would obviously be before the evidence of the prosecution under
Section.244(1) Cr.P.C, is completed or any stage prior to that. Such stages
would be under Section.200 Cr.P.C to Section.204 Cr.P.C.
22. Discharge in Summons Case
Whether the
magistrate, in a 'Summons case based on a complaint' has the power to drop
proceedings and discharge an accused, or not?
Section 251 of the
Cr.P.C reads as follows:-
251. Substance of
accusation to be stated:- When in a summons case the accused appears or is brought before
the Magistrate, the particulars of the offence of which he is accused shall be
stated to him, and he shall be asked whether he pleads guilty or has any
defence to make, but it shall not be necessary to frame a formal charge. On a bare reading, of section.251 Cr.P.C, it
becomes apparent that
there is no specific power of discharge or dropping of proceedings available
with the Magistrate in a Summons Trial.
In K.M.Matthew
v. State of Kerala reported in (1992) 1 scc 217 Where the accused had
sought recalling of the summoning order in a Summons Case. The Honorable
Supreme Court, held that "If there is no allegation in the
complaint involving the accused in the commission of the crime, it is implied that
the Magistrate has no jurisdiction to proceed against the accused. It is open
to the accused to plead before the Magistrate that the process against him
ought not to have been issued. The Magistrate may drop the proceedings if he is
satisfied on reconsideration of the complaint that there is no offence for
which the accused could be tried. It is his judicial discretion. No specific
provision is required for the Magistrate to drop the proceedings or rescind the
process. The order issuing the process is an interim order and not a judgment.
It can be varied or recalled. The fact that the process has already been issued
is no bar to drop the proceedings if the complaint on the very face of it does
not disclose any offence against the accused" With these
observations, the proceedings against the accused were dropped.
The correctness of the
legal proposition set out in K.M.Mathew (supra) came up for consideration
before the Supreme Court in in Adalat Prasad v. Rooplal Jindal &
Ors reported in 2004 (7) SCC 338 wherein a three Judge bench was
specially constituted since the validity of K.M.Mathew (supra) was open to
question. The Court held that "If the Magistrate issues
process without any basis, the remedy lies in petition u/s 482 of the Cr.P.C,
there is no power with the Magistrate to review that order and recall the
summons issued to the accused"
The decision in Adalat
Prasad was reaffirmed by
the Supreme Court in Subramanium Sethuraman v. State of Maharashtra & Anr
reported in (2004) 13 scc 324 (which was a Summons Case relating
dishonour of cheque u/sec.138 of the
Negotiable Instruments Act, 1881 - "NI Act"), Wherein it was held
that: Discharge, Review, Re-Consideration, Recall of order of issue of
process u/s.204 of the Cr.P.C, is not contemplated under the Cr.P.C in a
Summons Case. Once the accused has been summoned, the trial court has to record
the plea of the accused (as per Section.251 of the Cr.P.C) and the matter has
to be taken to trial to its logical conclusion and there is no provision which
permits a dropping of proceedings, along the way.
However in Bhushan
Kumar v. State (NCT of Delhi) reported in 2012 (5) SCC 424 it was ruled
that the Magistrate has the power to discharge an accused in a Summons Case. It
was followed in a catena of decisions including Urrshila Kerkar V.
Make My Trip (India) Private Ltd (2013 SCC Online Del.4563) with
the following observations:
"It is no doubt
true that Apex Court in Adalat Prasad Vs. Rooplal Jindal and Ors. (2004) 7 SCC 338 has ruled that there cannot be recalling of
summoning order, but seen in the backdrop of decisions of Apex Court in Bhushan
Kumar and Krishan Kumar (supra), aforesaid decision cannot be misconstrued to
mean that once summoning order has been issued, then trial must follow. If it
was to be so, then what is the purpose of hearing accused at the stage of
framing Notice under Section 251 of Cr.P.C. In the considered opinion of this
Court, Apex Court's decision in Adalat Prasad (supra) cannot possibly be misread
to mean that proceedings in a summons complaint case cannot be dropped against
an accused at the stage of framing of Notice under Section 251 of Cr.P.C, even
if a prima-facie case is not made out."
The recent order of the Supreme Court
in Amit Sibal v. Arvind Kejriwal (2016 SCC OnLine SC 1516) suggest
that the trial court has no power to drop proceedings/discharge in a Summons
Trial.
So placing reliance on
Subramanium Sethuraman (supra)
(supported broadly by Amit Sibal v. Arvind Kejriwal -supra) and the bare
provisions of Cr.P.C, constrain us to conclude
that there is no such provision in Cr.P.C, that permits a 'discharge' or
'dropping of proceedings' in a Summons Case.
23. CONCLUSION NOTE:
'Let a hundred guilty
be acquitted, but one innocent should not be convicted'
This maxim is based on
Blackstone's formulation that "It is better that ten guilty persons
escape than that one innocent suffer". It was expressed by the English
jurist William Blackstone in his seminal work, Commentaries on the
Laws of England, published in the 1760s.
This statement is the
guiding principle behind rules of procedure and evidence guiding our courts,
when any law relating to procedure and evidence requires interpretation, the interpretation given to such
provision is usually in favor of the accused upholding the presumption of
innocence. The reason for this is to ensure that the police and prosecution do
their job right, and to ensure that an over- zealous prosecution does not
result in an innocent man being convicted of a crime he did not commit,
otherwise people did not have faith and respect for the justice delivery system.
Thanks & Regards
Dr. Zulfiqar Ali Khan,
M.A., M.L., M.Phil(Law),Ph.D
Advocate & Legal Consultant
Supreme Court of India
MB: 9884102961
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