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APPLICATION FOR DISCHARGE IN CASES INSTITUTED BASING

ON POLICE REPORTS AND OTHERWISE

J. SYAM KUMAR
Junior Civil Judge
Korutla

Classification of Criminal Cases

Criminal Procedure Code, 1973(for short „Cr.P.C.‟) classifies criminal cases into (i)

Cases instituted basing on police report; and (ii) Cases instituted on complaint. Cr.P.C also

provides for four types of trial procedures. 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 cases1 and the remaining two are tried in a summons cases2

trial.

Discharge of accused in Warrant Cases instituted basing on Police Report :

Under 1973 Cr.P.C „Discharge‟ application is the remedy provided to a 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.

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 227 and 239 of Criminal Procedure Code 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.

1 . Sec.2(x) Cr.P.C defines ''Warrant case'' which means a case relating to an offence punishable
with death, imprisonment for life or imprisonment for a term exceeding two years.
2 Sec.2 (w) Cr.P.C defines ''Summons case'' means a case relating to an offence and not being a
warrant case
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Contents of discharge:

While receiving a discharge application, the court has to consider the following facts:

1. The report and charge sheet submitted by police under section 173 of CrPC.
2. Adequate opportunity to be heard has been given to the prosecution and the accused.
3. The magistrate thinks through the charges as false and unsubstantiated.

Procedure:

While filing an application for discharge, the accused has to consider the following
points:

1. That the report submitted by the Police does not contain effective facts and evidence.

2. That the material facts of the case cannot be determined.

3. That the accusations upon him are unsubstantiated and vague.
4. That the prosecution has not provided with any witnesses.

After examining these facts and evidence, if the magistrate thinks that these grounds

are sufficient to discharge the accused, the application for discharge is accepted.

When accused shall be discharged in warrant case instituted on police report before
Magistrate

Section.239 Cr.P.C., deals with when accused shall be discharged. According to Sec.

239 of Cr.P.C., 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.

Under this section, the Magistrate is required to see whether ground for presuming

commission of offence exists or whether the charge is groundless; wither a prima facie case

pertaining to the commission of the offence is made out or not. This section enjoins upon the

Magistrate to record his reasons for holding the charge against the accused to be groundless

and discharging him. This is simply because his order of discharge is subject to revision by

the higher courts. If there were sufficient documents and evidence indicating that prima

facie charges were made out against the accused, Magistrate cannot discharge the accused.
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Therefore, the remedy for the accused under section 239 of CrPC is available on a

prima facie case, if the report submitted by the Police does not conclude any prima facie

case, then the court has the power to discharge the accused.

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.

Grounds on which Sessions Judge is bound to discharge the accused :

(i) Where the evidence produced is not sufficient

(ii) Where there is no legal ground for proceeding against the accused
(iii) Where no sanction has been obtained
(iv) Where the prosecution is clearly barred by limitation or
(v) Where he is precluded from proceeding because of a prior judgment of High Court.

How to determine Sufficient ground

In Century Spinning & Manufacturing Co.3, Hon‟ble Bombay High Court held that

“there is no sufficient ground for proceeding” mean that no reasonable person could come to

the conclusion that there is ground whatsoever to sustain the charge against the accused. In

Union of India Vs. Prafulla Kumar Samal & Another4, the Apex court 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

3 (1970) 72 Bom LR 585

4 AIR 1979 SC 366
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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.” This judgment was again followed

in Dilwar Balu Kurane vs. State of Maharashtra5.

A Three-Judge Bench of Hon‟ble Apex Court in State of Orissa Vs. Debendra Nath

Padhi6, 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.

Whether the material produced by accused can be looked into by session’s court?

In Satish Mehra v. Delhi Administration and Another7 reported in, 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

5 AIR 2002 SC 564

6 (2005) 1 SCC 568
7 (1996) 9 SCC 766
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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.

Whether the material produced by accused can be looked into by Magistrate?

In Satish Mehra cases stated supra, the Hon‟ble Apex Court also 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.

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
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prosecution is barred by limitation or that he is precluded from holding the trial because of a

prior judgment of the High Court.

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 Rajasthan8.

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.

8 1990 CrLJ 1750 (Raj)

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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.

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?

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. But, in K.M.Matthew v. State of Kerala9 when the accused had sought recalling of

the summoning order in a Summons Case, the Honorable Supreme Court, held that 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 and

no specific provision is required for the Magistrate to drop the proceedings or rescind the

process.

The correctness of the legal proposition set out in K.M.Mathew (supra) came up for

consideration before the Supreme Court in Adalat Prasad v. Rooplal Jindal & Ors10

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

9 (1992) 1 SCC 217

10 2004(7) SCC 338
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of Maharashtra & Anr11 (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) it was ruled that the

Magistrate has the power to discharge an accused in a Summons Case. However, the recent

judgment of the Supreme Court in Amit Sibal vs 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.

Case Laws :

1. 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).

2. 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)

3. Is the Magistrate obliged to Record Reasons

11 (2004) 13 SCC 324

12 (2012) 5 SCC 424
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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.

4. B C Upreti & Anr vs State & Anr (2015), it was held that; “It is well settled that at
the stage of framing of the charges, no roving enquiry is to be made nor the pros and cons of
the materials could be weighed in detail as it would tantamount to a mini trial and such is
not in the scheme of the code. The reason for this is that the prosecution ought to be allowed
to bring its evidence at the trial and the case ought not to be shut out at the threshold when
there is reasonable material for holding trial”.

5. Duty of the Magistrate:-

In Manakshi Bala vs Sudhir Kumar, 1994 SCC (4) 142;
“It was held that the Magistrate was to proceed in accordance with Sections
239 and 240 of the Code, at the time of framing of the charges. Under the above
sections, the Magistrate is first required to consider the police report and the
documents sent with it under Section 173 CrPC and examine the accused, if he thinks
necessary, and give an opportunity to the prosecution and the accused of being heard.
If on such consideration, examination and hearing the Magistrate finds the charge
groundless he has to discharge the accused in terms of Section 239 CrPC; conversely,
if he finds that there is ground for presuming that the accused has committed an
offence triable by him he has to frame a charge in terms of Section 240 CrPC”

6. 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 in
sessions cases. 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 Union of India reported in AIR 1978 SC 514.

Conclusion:

It is settled principle of law that No one should be punished for the offence which is

not committed by him. Therefore, the protection provided under Section 227 and 239 of Crpc

are essential provisions of the law for safeguarding a person against whom the false

allegations have been made. While considering and deciding the application for discharge,

the court is not to see whether there is sufficient ground for conviction of the accused, but it

has to see whether the trial is sure to end in his conviction. The purpose of Secs. 227 and 239
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is to ensure that the Court should be satisfied that the accusation is not frivolous and there is

some material for proceeding against him. The crystallized judicial view is that the Court

cannot conduct a deep roving enquiry into the evidence at this stage.

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