SCOPE OF DISCHARGE UNDER SECTION 227 OF THE CRIMINAL PROCEDURE CODE, 1973

MEANING OF DISCHAGRE UNDER CRIMINAL LAW
Discharge in legal criminal parlance is defined in Black Law Dictionary as “The opposite of charge; hence to release; liberate; annul; unburden; disencumber” as opposed to its meaning in contractual law, which is to cancel or unloose the obligation of a contract; to make an agreement or contract null and inoperative. In layman’s language, the provisions of discharge under sections 227 & 239 of the Criminal Procedure Code, 1973 (Cr.P.C) comes into the picture after investigation in a crime is complete by the prosecution and the chargesheet is filed against the accused. If there is nothing incriminating against the accused in the chargesheet, he / she can prefer a discharge application (in warrant cases1) under section 227 of the Cr.P.C if the offence/s is triable by Sessions Court and under section 239 of the Cr.P.C if the offence/s is triable by Magistrate Court whereby the Magistrate Court is required to consider the police reports and the documents sent along with the police reports under section 173 of the Cr.P.C and if necessary, examine the accused and after giving the accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless / baseless, the accuse is liable to be discharged by recording reasons thereof. The accused may exercise this right in order save himself / herself from the entire rigamarole of trial where no prima facie case is made out in the entire chargesheet placed on record before the appropriate court qua the accused.

WHEN CAN AN ACCUSED BE DISCHARGED IN SESSIONS TRIAL
Under section 227 of the Cr.P.C., after considering the entire material placed on record and after hearing the arguments of the accused as well as the prosecution, if the Judge reaches the conclusion that there is no sufficient ground for proceeding against the accused and that the commence of trial will only waste the valuable time of the court, the Judge may discharge the accused.

LEGAL PRINCIPLES APPLICABLE IN REGARD TO AN APPLICATION SEEKING DISCHARGE
The parameters for grant of discharge are well settled by a catena of judicial precedent A recent judgment of the year 2017 which elaborately deals with the said legal proposition has been passed by the Hon’ble Supreme Court in the case of P. Vijayan vs. State of Kerala2. The Apex Court held in the said case that the Judge is not a mere post office to frame charge but the Judge should exercise his judicial mind and discretion to determine whether a case for trial has been made out by prosecution. It was further clarified that the Judge should be satisfied that the evidence produced by the prosecution before the Court discloses grave suspicion that the accused has committed the crime. Based on these aforesaid, the Supreme Court laid down the following principles-

  1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the accused.
  2. The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution.
  3. The Judge has to merely sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court. It is to be noted here that the Judge has to merely sift the evidence on record and not go in depth of it in order to decide an application for discharge.
  4. If the evidence, which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross - examination or rebutted by the defence evidence, if any, ‘cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial.’
  5. It is open to the accused to explain away the materials giving rise to the grave suspicion.
  6. The Court has to consider the broad probabilities, the total effort of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This, however, would not entitle the Court to make a roving enquiry into the pros and cons.
  7. At the time of framing the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.
  8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.

PARAMETERS GOVERNING THE EXERCISE OF JUDICIAL DISCHARGE U/S. 227 OF CRIMINAL PROCEDURE CODE, 1973
The parameters which govern the exercise of this jurisdiction have found expression in several decisions of the Supreme Court. The Supreme Court in State of Karnataka vs. M.R. Hiremath3 have observed that 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 should be true and the Court should evaluate the material in order to determine whether the facts emerging from the material, taken on its face value discloses the existence of the ingredients necessary to constitute the offence.

In another case of State of Tamil Nadu vs. N. Suresh Rajan4 adverting to the earlier decisions on the subject of discharge, the Supreme Court observed that at the stage of discharge, the probative value of the materials has to be gone into and the Court is not expected to go deep into the matter. Whereas what is needed to be considered is whether there is a ground for convicting the accused has been made out. To put it differently, if the Court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge but for the conviction of the accused the Court should come to the conclusion that the accused has committed the offence. The Court further observed in this case that the law does not permit a mini trial at the stage of discharge.

In the case of Dilawar Balu Kurane vs. The State of Maharashtra5, the Supreme Court observed that in exercising powers under section 227 of the Criminal Procedure Code, 1973, the settled position of law is that the Judge while considering the question of framing the charges under the said section 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 and whether the materials placed before the Court discloses grave suspicion against the accused which has not been properly explained to the Court, then in such a case the Court will be fully justified in framing the charge and proceed with the trial. On other hand, if the Judge is satisfied that the evidence produced before the Court gives rise to some suspicion but not grave suspicion then the Judge will be fully justified in discharging the accused.

On a different footing, in M. E. Shivalingamurthy vs. CBI6, the Supreme Court observed that the defence of accused cannot be looked into at the stage when the accused seeks to be discharged under Section 227 of the Criminal Procedure Code, 1973. In this case the High Court of Karnataka had set aside the order of the Magistrate Court allowing the discharge application of the accused. The legal issue before the Apex Court was whether the accused could rely upon material which he chooses to produce at the stage of discharge application?

The bench comprising of Justice Sanjay Kishan Kaul and Justice KM Joseph upheld the decision of the High Court and noted that the principle is to take the materials produced by the prosecution, both in the form of oral statements and documentary material, and act upon it without it been subjected to questioning through cross - examination and everything assumed in favour of the prosecution, if a scenario emerges where no offence, as alleged, is made out against the accused, it undoubtedly would endure to the benefit of the accused warranting the Trial Court to discharge the accused.

REMEDIES AVAILABLE TO THE ACCUSED IN THE EVENT OF REJECTION OF THE DISCHARGE APPLICATION BY THE SESSIONS COURT
If a discharge application is rejected by the Sessions Court, the accused may challenge such rejection under the revisional jurisdiction vide a criminal revision application under section 397 of the Cr.P.C. However, in exceptional cases of grave miscarriage of justice or abuse of process, the inherent powers of the High Court under section 482 of the Cr.P.C. could also be invoked. However, the power of the High Court under section 482 of the Cr.P.C. is to be used sparingly and in rarest of rare cases inter alia when commencement of trial will only cause unnecessarily harassment to the accused.

CONCLUSION
Under the present judicial system, the scope of discharge is very limited. At the stage of framing of charge, the prosecution merely needs to display a prima facie case qua the accused from the material available on record and trial may thereafter commence. However, at the stage of deciding a discharge application, the accused may opt to refer to and rely upon sterling quality evidence to seek his discharge, and if, on the basis of such unimpeachable record, the Judge is satisfied on the aforesaid legal precepts that the accused is entitled to an absolute exoneration from the alleged crime, it is well within the law for the accused to be discharged.

  1. A "warrant case" is defined u/s. 2(x) of the Cr.P.C.as a case relating to an offence punishable with death, life imprisonment or imprisonment for a term exceeding two years
  2. 2010 2 SCC 135
  3. 2019 7 SCC 515
  4. 2014 11 SCC 709
  5. 2002 2 SCC 135
  6. Supreme Court - Criminal Appeal No. 957 / 2017
Dated: June 10, 2021
Author: Jehan N. Fulwadiwala

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