Discharge of Accused

In Arvind Kejriwal & Ors vs Amit Sibal & Anr on 16 January, 2014 ^[1], Discharge of Accused

In Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424, the Supreme Court observed that it is the bounden duty of the Trial Court in Section 251 Cr.P.C. to satisfy whether the offence against the accused is made out or not and to discharge the accused if no case is made out against him. The relevant findings of the Supreme Court are reproduced hereunder:- “20. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a Crl. M.C.5245/2013 Page 3 of 25 summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge-sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code.”

Discharge of Accused in Summons Case

16. If the Trial Court has to frame the notice under Section 251 Cr.P.C. where no prima facie case is made out against the petitioners, the hearing at the stage of notice under Section 251 Cr.P.C. would be a mere farce and would result in failure of justice. In warrant cases whether arising out of police report or complaint, the learned Magistrate is empowered to discharge the accused if no prima facie case is made out against him under Section 239 Cr.P.C. whereas in summons cases, such a power is given to the Magistrate only in cases other than complaint cases meaning thereby that the Magistrate has to frame the notice and proceed with the matter even if no prima facie case is made out against the accused. As such, the denial of the remedy of discharge to the accused in summons cases at the stage of notice under Section 251 Cr.P.C. is clearly discriminatory and therefore, this case is squarely covered by the principles laid down by the Supreme Court in Maneka Gandhi (supra).

In Ajoy Kumar Ghose vs State Of Jharkhand & Anr on 18 March, 2009 ^[2],

14. However, in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) Cr.P.C., the Magistrate has to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) Cr.P.C. on the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) Cr.P.C., whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) Cr.P.C. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trial on police report, where there is only one opportunity. In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge. Of course, under Section 245(2) Cr.P.C., a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless.

In Ajoy Kumar Ghose vs State Of Jharkhand & Anr on 18 March, 2009 ^[2],

25. The Learned Single Judge in this ruling has also noted another ruling by the same High Court in Abdul Nabi Vs. Gulam Murthuza reported in 1968 Criminal Law Journal 303 (cited supra). We, therefore, find that consistently, the view taken by the High Court is that there would have to be some evidence before the charge is framed. In the last mentioned case of P. Ugender Rao & Ors. Vs. J. Sampoorna & Ors. reported in 1990 Criminal Law Journal 762, there is one incorrect observation in respect of a decision of this Court in Cricket Association of Bengal & Ors. Vs. State of West Bengal & Ors. reported in 1971 (3) SCC 239 (cited supra) to the effect that the Magistrate cannot discharge the accused before  25 recording any evidence, whatsoever, under Section 244 Cr.P.C. We have not been able to find out such an expression in the aforementioned case of Cricket Association of Bengal & Ors. Vs. State of West Bengal & Ors. (cited supra). That was a case under old Section 253(2), which is pari materia to the present Section 245(1). On the other hand, the Court has very specifically stated therein that Section 253(2) gives ample jurisdiction to the Magistrate to discharge the accused in the circumstances mentioned therein and the order of discharge can be passed at any previous stage of the case. It is further stated in Para 13 that sub-Section (1) under those circumstances will not operate as a bar to the exercise of jurisdiction by the Magistrate under sub-Section (2). Since we have found error in the above mentioned judgment, we have mentioned so. However, the ruling in Cricket Association of Bengal & Ors. Vs. State of West Bengal & Ors. (cited supra) also supports our earlier finding that the Magistrate has the power to discharge the accused, even before any evidence is recorded and thus, an application for discharge at that stage is perfectly justifiable. However, insofar as Section 246(1) Cr.P.C. is concerned, we are of the clear opinion that some evidence would have to be there for framing the charge.

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In Lalu Prasad @ Lalu Prasad Yadav vs State Of Bihar Through Cbi (Ahd) … on 6 December, 2006 ^[3],

The question raised relating to recording of reasons at the time of framing of charge is different from a case of opinion on the basis of which an order of discharge of the accused is passed. Sections 227 and 228 of the Code with regard to discharge of accused and framing of charges against the accused respectively in a case triable by Court of Session; Sections 239 and 240 concern discharge and framing of charge in case of warrant, triable by the Magistrate whereas Section 245 deals with discharge and framing of charges in cases instituted other than on the police report, indicates the difference.

In Lalu Prasad @ Lalu Prasad Yadav vs State Of Bihar Through Cbi (Ahd) … on 6 December, 2006 ^[3],

“It is pertinent to note that this section required a Magistrate to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that the accused had committed the offence which he is competent to try. In such a situation he is only required to frame a charge in writing against the accused.   Even in cases instituted otherwise than on a police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. This is clear from Section 245. As per the first sub-section of Section 245, if a Magistrate, after taking all the evidence considers that no case against the accused has been made out which if unrebutted would warrant his conviction, he shall discharge the accused. As per sub- section (2) the Magistrate is empowered to discharge the accused at any previous stage of the case if he considers the charge to be groundless. Under both sub-sections he is obliged to record his reasons for doing so. In this context, it is pertinent to point out that even in a trial before a Court of Session, the Judge is required to record reasons only if he decides to discharge the accused (vide Section 227 of the Code). But if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge.”

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In Selvi.J.Jayalalithaa vs Central Bureau Of Investigation on 30 September, 2011 ^[4],

“The Cr.P.C. contemplates discharge of the accused by the Court of Session under S.227 in a case triable by it ; cases instituted upon a police report are covered by S.239 and cases instituted otherwise than on police report are dealt with in S.245. The three sections contain somewhat different provisions in regard to discharge of the accused. Under S.227, the trial Judge is required to discharge the accused if he ‘considers that there is not sufficient ground for proceeding against the accused’. Obligation to discharge the accused under S.239 arises when “the Magistrate considers the charge against the accused to be groundless.” The power to discharge is exercisable under S.245 (1) when “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 …..” It is a fact that Ss.227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under S.245, on the other hand, is reached only after the evidence referred to in S.244 has been taken. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under S.245 (1) is a preliminary one and the test of “prima facie” case has to be applied. In spite of the difference in the language of the three sections the legal position is that if the trial court is satisfied that a prima facie case is made out, charge has to be framed.”

In Selvi.J.Jayalalithaa vs Central Bureau Of Investigation on 30 September, 2011 ^[4],

29. No doubt the Magistrate can discharge the accused at any stage of trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. .The principles laid down by the Hon’ble Apex Court in the decisions cited supra would make it crystal clear that while invoking the provision under Section 239 of the Code, the Court has to consider and examine only materials available on record as produced by the prosecution while filing the final report in order to find out whether there is a prima facie case made out against the accused, whereas, the inherent power under Section 482 of the Code can be exercised by the High Court to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. Therefore, the inherent power conferred under Section 482 of the Code is a wider one than that of the power under Section 239 of the Code.

In State Rep By vs K.P. Jai Xavier on 4 November, 2011 ^[5],

23. As far as the discharge of the accused from the case is concerned, the Supreme Court has expressed its view in AIR 1979 SC 366 = 1979 Crl.L.J.154 [Union of India v.Prafulla Kumar Samal and another] that if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. In the case on hand, in the presence of the statement of witness No.21, the Court has got reasonable suspicion over the statement of witness No.22. Hence, discharge of the accused is proper.

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In State Rep By vs K.P. Jai Xavier on 4 November, 2011 ^[5],

35. Mr. R.Anand, learned counsel appearing for the accused 4 to 7 would cite the decision of Prafulla Kumar Samal’s case supra, in which the Supreme Court has formulated the Guidelines and principles in the matter of discharge of the accused from a case followed by Courts. They are as follows:- “10.Thus, on a consideration of the authorities mentioned above, the following principles emerge:   (1) That the Judge while considering the question of framing the charges under section 227 of the Code 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:   (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 test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult 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 while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

In A.Meenakshi Sundaram vs The Additional Superintendent Of … on 1 August, 2014 ^[6],

 In a warrant case instituted otherwise than on a police report, ‘discharge’ or ‘acquittal’ of accused are distinct concepts applicable to different stages of the proceedings in Court. The legal effect and incidents of ‘discharge’ and ‘acquittal’ are also different. An order of discharge in a warrant case instituted on complaint, can be made only after the process has been issued and before the charge is framed. Section 253(1) shows that as a general rule there can be no order of discharge unless the evidence of all the prosecution witnesses has been taken and the Magistrate considers for reasons to be recorded, in the light of the evidence, that no case has been made out. Sub-section (2) which authorises the Magistrate to discharge the accused at any previous stage of the case if he considers the charge to be groundless, is an exception to that rule. A discharge without considering the evidence taken is illegal.

In A.Meenakshi Sundaram vs The Additional Superintendent Of … on 1 August, 2014 ^[6],

239. 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. 11. A plain reading of the above would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. Section 240 of the Code provides for framing of a charge if, upon consideration of the police report and the documents sent therewith and making such examination, if any, of the accused as the Magistrate thinks necessary, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561. (AIR 2008 SC (Supp) 204 : 2008 AUR SCW 96). That too was a case in which a complaint under Sections 498-A and 406 read with Section 34 of the I.P.C. was filed against the husband and parents-in-law of the complainant-wife. The Magistrate had in that case discharged the accused under Section 239 of the Cr.P.C, holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the trial Court to frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the Court at the stage of framing of charges or directing discharge in the following words:

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In A.Meenakshi Sundaram vs The Additional Superintendent Of … on 1 August, 2014 ^[6],

12. Now reverting back to the question of power of the learned trial Judge to discharge the accused, I have to state the following. As held by the Honourable Supreme Court in Ratilal Bhanji Mithani’s case reported in 1979 Supreme Court Cases (Crl.) 405 that after framing of charges, the question of discharge of an accused does not arise, is the view consistently taken by the Honourable Supreme Court in several judgments. Before the said judgment as well as after, the law stands well settled that when once charges have been framed, the question of discharging an accused does not arise at all

In A.Meenakshi Sundaram vs The Additional Superintendent Of … on 1 August, 2014 ^[6],

57. It is to be borne in mind that the standard of proof requires at the final stage is not required before taking a decision to frame charge or discharge the accused. The term ‘legal evidence’ is not an appropriate one, when a Court of Law is to make up its mind to frame charge or discharge an accused and the materials placed, then, it will not have the status of evidence. In fact, even the accused cannot be discharged under Section 239 Cr.P.C, on prosecution failure to produce the record under Section 161 (3) of Cr.P.C in original.

References

1. Arvind Kejriwal & Ors vs Amit Sibal & Anr on 16 January, 2014
2. Ajoy Kumar Ghose vs State Of Jharkhand & Anr on 18 March, 2009
3. Lalu Prasad @ Lalu Prasad Yadav vs State Of Bihar Through Cbi (Ahd) … on 6 December, 2006
4. Selvi.J.Jayalalithaa vs Central Bureau Of Investigation on 30 September, 2011
5. State Rep By vs K.P. Jai Xavier on 4 November, 2011
6. A.Meenakshi Sundaram vs The Additional Superintendent Of … on 1 August, 2014