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APPLICATION FOR DISCHARGE IN CASES INSTITUTED BASING
ON POLICE REPORTS AND OTHERWISE
by
K.SRINIVASA RAO,
Principal Senior Civil Judge,
Rajampet
Under Criminal Procedure Code.1973 (for short Cr.P.C) ‘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 discharge, if the evidence
provided to the Court is not sufficient to prove the offence.
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
[1] Trial before a court of Sessions,
[2] Trial of warrant cases by Magistrates,
[3] Trial of summons cases by Magistrates, and
[4] 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.
2. 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.
3. 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.
4. 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
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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.
5. 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.
6. 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.
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7. 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.
8. 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.
9. 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.
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10. 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.
11. 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
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within its power to consider even material which the accused may
produce at the stage contemplated in Section.227 of the Code.
12. 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.
13. 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.
14. 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.
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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).
15. 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)
16. 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.
17. 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)
18. 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
19. 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.
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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.
20. 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
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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.
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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.
21. CONCLUSION:
'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
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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.
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