What court considers before discharging an accused in crminal cases..

Under the Criminal Procedure Code, 1973, the Discharge Application is the remedy that is granted to the person who has been maliciously charged. If the allegations which have been made against him are false, this Code provides the provisions for filing a discharge application. If the evidence given before the Court is not sufficient to satisfy the offence and in the absence of any prima facie case against him, he is entitled to be discharged.

If, upon due consideration of the police report and all the documents under Section 173 along with examination of the accused, if any, as thinks obligatory and after hearing prosecution as well as accused, the Magistrate considers the charge to be groundless against the accused, he shall discharge the accused and also record the reasons for doing so.

Essential Elements For Discharge:

The Court must consider the Charge sheet and documents appended thereto by the Police under Section 173, Cr.P.C by taking of the following essentials-

1. The Magistrate may, if he deems fit, examine the accused.

2. Thereafter, the arguments of both the Prosecution and the Accused should be heard (audi alteram partem).

3. In the instance where the grounds against the accused are found to be baseless, upon the condition that no evidence is present against the accused, the Court shall consider that there is no prima facie case against the accused and must be discharged.

If all the above conditions are fulfilled, then the Accused shall be discharged.

Seven Guiding Principles On Discharge And Framing Of Charge:

In the case of Vijayan v. State of Kerala and another, in the case of Union of India v. Prafulla Kumar Samal and another, the Supreme Court formulated the following 7 guiding principles.

1. The judge while considering the question of framing the charges U/Sec 227 Cr.P.C 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. To determine prima facie case would depend upon the facts of each case.

2. Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.

3. The court cannot act merely as a post office or a mouth piece of the prosecution but it has to consider the broad probabilities of the case. There cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if a trial was being conducted.

4. On the basis of material on record if the court could form an opinion that the accused might have committed the offence, it can frame the charge.

 5. At the time of framing of the charges, the probative value of the material on record can not be gone into but before framing of charge the Court must apply it’s judicial mind on the material placed on record and must be satisfied that the commission by the accused was possible.

6. At the stage of Sec.227 and 228 Cr.P.C, the court is required to evaluate the material and documents on record with a view to find out the existence of all the ingredients constituting the alleged ofence but the court cannot be expected to presume that the prosecution story is gospel truth.

7. If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial judge will be empowered to discharge the accused irrespective of the result of the trial.

Case Laws on The Seven Points:

The jurisdiction of Sessions Judge at the time of discharge is very limited. Charges can also be framed on the basis of strong suspicion. Marshaling and appreciation of evidence is not in the domain of the court at that point of time.

In case of Sajjan Kumar vs. CBI, 2010 it was held that at the stage of framing of Charge U/Sec. 228 Cr.P.C or while considering the discharge petition filed U/Sec. 227 Cr.P.C, it is not for the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability etc; The evidentiary value and its credibility and veracity has to be considered at the stage of trial.2

In case of State of Tamilnadu vs. N. Suresh Rajan, 2014 it was held that at the Stage of consideration of an application for discharge, Court has to proceed with an assumption that the materials brought on record by prosecution are true and to evaluate the said materials and documents with a view to find out whether the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the offence.

Discharge Post Framing of Charge:

In the case of Ratilal Bhanji Muthani v. State of Maharastra, it is observed that, after framing of charge the question of discharge does not arise. The same view was taken in the case of Stree Atyachar Veerodi Parishadh v. Dilip Nathumal Chordiya.?

In the case of Tapati Bag v. Patipaban Ghosh, it was held that if the Court considers that there are no sufficient grounds for proceeding against the accused, the accused has to be discharged, but if the Court is of the opinion after such consideration that there is ground for presuming that the accused has committed the offence which is exclusively triable by the Court of Session then the charge against the accused must be framed. Once the charges are framed, the accused is put to trial and thereafter either acquitted or convicted, but he cannot be discharged. Once charges are framed under Section 228 of the code, there is no backgear for discharging the accused under Section 227 of the code.

Discharge in 498a is quite rare and normally at the level of magistrate court it is not granted . However in exceptional circumstances it can be granted.

Now one of the exceptional case circumstances is discussed in the case of Madhu Pamnani vs . Hanish Pamnani And Anr. on 31 May, 2014

In this case wife has as usual leveled dowry harassment against various family members of the Husband.

But what was unique in this case was wife had implicated Brother in laws of the husband.

Now these facts were peculiar with respect to two brother in law

A. Brother in Law lived seperately from the husband and wife since 2003.

B. Vague allegation of entrustment of dowry articles in case of brother in law

C. No medical evidence of beating.

Court relied on the Supreme Court Principle

iii)Dilawar Balu Kurane Vs. State of Maharashtra(2002) 2 SCC

(a) The court while considering the question of framing the charge under the Criminal procedure Code has 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. The test to determine prima facie case would depend upon the facts of each case.

(b) Where the materials placed before the court discloses grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.

(c) The court can not act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there can not be a roving enquiry into the pros and cons of the matter and weigh the evidence as if court was conducting a trial.

(d) The Court is required to be evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence.

(e) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial 

The court also held that whatever harassment brother in laws given to the wife do not come under the ambit of 498a.

Discharge can be opportunity to get family members out of 498a

Case Study:

Raj Kishore Roy and Ors. Vs.  State of Jharkhand and Ors.

Criminal – Discharge – Offence committed under Sections 498A, 406, 313, 506, 109/34 of the Indian Penal Code, 1860 (IPC) read with Section 3/4 of Dowry Prohibition Act – Order rejecting application for discharge – Hence, present revision – Held, in the instant case, there was no specific allegation in the complaint petition against the Petitioner Nos. 3 to 5 – Sessions Judge found that although in the complaint petition allegation of miscarriage due to torture was made but the complainant in her statement under Section 161 of the Code of Criminal Procedure, 1973 CrPC, had not stated such thing nor does the father of the complainant had stated so – On this ground the Sessions Judge held that there was no sufficient material to consider the case so far Section 313 of the IPC was concerned – Sessions Judge also failed to take into consideration the fact that even no specific allegation of torture and assault were made in the complaint against Petitioner Nos. 3 to 5 – In absence of specific allegation supported by evidence the Court below ought to have atleast discharge Petitioner Nos. 3 to 5 as no prima facie case had been made out against them – Revision allowed.

Case Study-02

Shobha Devi and Ors. Vs. The State of Jharkhand and Ors.

Case Note: Criminal – Liability for offence – Sections 341,323, 313, 316, 498A and 506 of Indian Penal Code, 1860 (I.P.C.) – Section 4 of Dowry Prohibition Act, 1961 – Additional Judicial Commissioner held that Section 313 of I.P.C. was attracted only against Petitioner’s husband and mother-in-law and found sufficient material to proceed against Petitioners under Sections 498A/323/34/506 and 379 of I.P.C. and prima facie offence under Section 4 of Act was found against all six Accused but father of Accused was discharged from all charges – Hence, this Revision Petition – Whether, there was prima facie materials to proceed against all six Accused Persons – Held, there was prima facie allegation against Petitioner’s husband and mother-in-law to proceed against them for proposed charge under Sections 498A,323,34,506 and 379 of I.P.C. as also under Section 313 of Indian Penal Code besides proposed charge under Section 4 of Act – However, there was no specific overt act was attributed against other Petitioner except that they used to side with their mother i e mother-in-law of informant in extending cruelty in various ways – No offence under Section 316 was attracted against any of Petitioners – Moreover, proposed charge under Section 313 of I.P.C. against Petitioner’s husband and mother-in-law was entirely based on materials to be produced on record in course of their trial as question of fact was involved therin – Allegations against 4 Petitioners, who were married and unmarried Nanads of informant and younger brother of husband of informant, were shaddled with omnibus allegations of siding their mother without specific attribution in demand of dowry or extending torture to informant – Hence, it could not be said to be prima facie materials to proceed against them as against proposed charge – However, there were prima facie materials to proceed against husband and mother-in-law for proposed charge – Thus, impugned order was modified by recording discharge of Petitioners – Revision Petition disposed of.Ratio Decidendi”To determine criminal liability of offence against several accused person there shall be some prima facie materials against each of accused persons.”

Conclusion

The Legal Maxim ‘Let a hundred guilty be acquitted, but one innocent should not be convicted’ is the guiding principle behind rules of the procedure and evidence guiding and inspiring our courts. When any law relating to procedure and evidence requires some sort of interpretation, the interpretation is made usually in favour of the accused, which is, upholding the presumption of innocence.

The reason for this is that an innocent man should not be convicted for a crime that he did not commit, otherwise people did not have faith and respect for the justice delivery system. Therefore, I may conclude this article by saying that when, in any warrant, case allegations are made against the accused but there is no sufficient evidence that could end the accused in conviction, it is the duty of the Court to discharge the accused.

Adv. Nitish Banka

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