Discharge under CrPC.

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Introduction

The meaning of discharge is the act of relieving of something, or release from the custody as from legal confinement in prison. It is the act by which a person in confinement under some legal process, or held on an accusation of some crime or misdemeanour, is set at liberty. The word “discharge” is not defined in the code of criminal procedure,1973.

Section 227 Discharge of CrPC,1973

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 not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

If the Judge after going through the record and documents submitted, and after hearing the prosecution and the accused comes to the conclusion that no sufficient ground exists to proceed against the accused, he shall discharge him. The order of discharge should be supported by reasons. (Sunil kumar Jha alias Bittu Jha v. State of Bihar, 1997 ) The reasons should be recorded in writing. An order of discharge may be passed only where Court is almost certain that there is no prospect of conviction and that time of the Court need not be wasted by holding a trial. Where there was a long delay in lodging the FIR, no evidence, medical or otherwise to corroborate the only infirm and improbable evidence of prosecutrix existed, and no reasonable circumstances were there to show the commission of the offences of rape, the accused deserved to be discharged of the charge.

The judge cannot merely act upon the saying of prosecution. He has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court. While considering case of discharge sought immediately after charge sheet was filed, court could not become Appellate court and start appreciating evidence by finding out inconsistency in statements of witnesses.

State of Tamil Nadu v N Suresh Rajan, (2014) 11 SCC 709 : 2014 Cr LJ 1444 (SC), It has been held by the Supreme Court that at the stage of consideration of an application for discharge, the Court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the materials to find out whether the facts taken at their face value disclose the existence of the ingredients constituting the offence. At this stage, only the probative value of the materials has to be gone, into and the Court is not expected to go deep into the matter to hold a minitrial.

Section 239 When accused shall be discharged, when cases instituted on a police report

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.

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.  The order of discharge can be set aside if it is found that there were sufficient documents and evidence indicating that prima facie charges were made out against the accused but those documents and evidence were neither referred nor considered and the Magistrate discharged the accused on the ground that nobody represented the state.

 At the stage of consideration of an application for discharge, the Court has to proceed with the presumption that material brought on record by the prosecution are true and evaluate such material with a view to find out whether the facts emerging therefrom taken at their face value disclose existence of the ingredients of the offence. State by the Inspector of Police, Chennai v. S Selvi, AIR 2018 SC 81.

 Section 245 When accused shall be discharged, when Cases instituted otherwise than on police report

(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.

In a warrant-case instituted otherwise than on a police report, discharge and acquittal are two different concepts. A person cannot be discharged unless the prosecution evidence has been taken and the Magistrate considers for reasons to be recorded that no case is made out against the accused.

Sub-section (1) enables the Magistrate to discharge an accused after taking all the evidence produced by the prosecution. Since his order is subject to revision, he is required to record his reasons in writing. Sub-section (2) of section 245 is an exception to this rule in so far as it empowers the Magistrate to discharge the accused at any previous stage if he considers that the charge is groundless.

The Magistrate cannot pass an order of discharge until he has examined all the witnesses of the prosecution and such an order passed only after examining the complainant, and not all the witnesses, will be illegal. The order of discharge passed exclusively on the basis of material in cross-examination and without considering other vital pieces of  evidence and documentary evidence on record held sufficient to make out a prima facie case.

Section 246  Procedure where accused is not discharged

The Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused, if such evidence has been taken, or at any previous stage of the case. The charge shall then be read and explained to the accused, and shall be asked whether he pleads guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon.  If the accused refuses to plead, or does not plead or claims to be tried, the witnesses named by him shall be recalled.

Secton 249 Absence of complainant

When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.

Before the charges are framed, if the complainant is not present on the day of hearing of the case, and the offence is non-cognizable, and the magistrate may discharge the accused. The Magistrate should keep in view the gravity of the matter, nature of the offence and ensure presence of the complainant and should not discharge the accused on the complainant’s non-appearance or non-filing of an application explaining his nonappearance.

The complainant can file the fresh complaint. The law provides this facility. A fresh complaint can lie on the same facts. ( Santokh Singh v Geetanjali Woolen Pvt Ltd, 1993 Cr LJ 3744)  Where in the course of a trial for defamation the complainant dies, the Magistrate need not discharge the accused but can continue with the trial.

Conclusion

A person who has been acquitted cannot be arrested for the same case in which he has been acquitted by the court. Magistrate can or cannot order for discharge after referring the nature of offences. A discharged person can be rearrested and committed for a further inquiry. An acquittal may also result from absence of the complainant, or withdrawal or a compounding of offence.

(Author: Palak Jain, pursuing LLB from Faculty of law, Delhi University.)