Y. Jyothi Sheeran,
Guest faculty at School of Excellence in Law, Chennai
And a practicing advocate at Madras High Court.
DISCHARGE IN CRIMINAL CASES
The Justice delayed is Justice denied. With increasing numbers of pendency of cases, the time taken for final disposal of cases has increased considerably. The Criminal Procedure Code provides for early disposal of cases in which no sufficient materials are produced by the prosecution to prove the case against accused. A criminal case can be set into motion by anybody. Based on the information relating to an offence received by the police officer, the first information report is registered and after completing the investigation the police officer would file the final report before the court as per section 173 of Cr.P.C. Such cases are called as cases instituted on police report. The litigants can also directly approach the court in respect of criminal offences by way of filing complaint under section 200 Cr.P.C. Such cases are called as cases instituted otherwise than on Police report. The above cases are tried in any one of the following categories of trial, based on the punishments prescribed for the alleged offence. The Criminal Procedure code has categorized the trial of cases in following manner,
1) Summary Trial,
2) Trial of summons cases by Magistrates,
3) Trial of warrant cases by Magistrates,
4) Trial before a court of sessions.
Discharge in Trial before a court of session:
The Chapter XVIII of Cr.P.C. deals with “Trial before a Court of Session”. As per Section 226, when the accused person is brought before the Court, after commitment of the case u/s 209, the prosecutor is required to open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. The section 227 deals with discharge of accused in such cases. The section 227 of Cr.P.C provides as follows,
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.
As per the above provision, upon consideration of the records and the documents submitted before the court and after hearing the submissions of the accused and the prosecution if the court is of the opinion that, there is no sufficient ground to proceed against the accused, then he shall be discharged and the court must record its reasons for doing so. If the court finds that there are sufficient grounds for presuming that the accused would have committed the offence, then the court can proceed to frame charge under section 228 of Cr.P.C.
The scope of Sections 227 and 228 Cr.P.C. was observed and considered in Amit Kapoor v. Ramesh Chander and another ((2012) 9 SCC 460) and it is held that
“ Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code…..
19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage.”
At the stage of framing charge, the trial court should not see that whether the accused could be convicted based on the available materials on records rather it should see that whether there is strong suspicion or grounds to presume that accused would have committed the offence. It is observed in the above said Judgement that 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 the offence, then there will be no sufficient ground for proceeding with the trial. It is also observed in the above Judgment 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. 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. 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. The Judge should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
Discharge in Trial of warrant cases:
In respect of cases instituted under police report, the court after receiving the final report would take cognizance of the case and the accused would be summoned by the court. On appearance of accused, the copies of the case would be furnished to the accused. The court then proceeds to frame charge as provided under section 240 of Cr.P.C. At this stage, for discharging the accused, the court would invoke the section 239 in trial of warrant cases by magistrates. The section 239 of Cr.P.C provides as follows,
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.
As per the section 239 Cr.P.C. the accused can be discharged from the case, after hearing both sides and upon considering the materials placed by the prosecution under section 173 Cr.P.C, if the court thinks that the charge against accused is groundless. While discharging the accused the court must record its reason for doing so. The apex court in cantena of judgments has laid down the principles to be followed while deciding discharge under section 239 Cr.P.C. In nutshell, while deciding discharge under section 239 Cr.P.C, the following points has to be borne in mind.
(i) The most proper stage for filing discharge is before framing charge.
(ii) Only the materials placed by the prosecution under section 173 Cr.P.C. has to be taken in to account except under unavoidable circumstances.
(iii) The section 239 Cr.P.C. and section 240 Cr.P.C. always go together. As such accused can be discharged only when there is no sufficient ground to presume that he could have committed the offence and he could not be adequately punished.
(iv) Only prima facie case should be seen and it should not see whether the accused can be convicted while deciding discharge.
(v) The strong suspicion that the accused could have committed the offence is needed to frame charge. And in the absence of such strong suspicion, the accused can be discharged.
The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers of discharge is observed in Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr ((2008) 2 SCC 561) as below,
“11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.”
Discharge in cases instituted otherwise on police report:
The Section 245 of Cr.P.C states that when accused shall be discharged in the cases instituted otherwise than on police report. As per Section 245(1) Cr.P.C the Magistrate should consider the evidence adduced U/Sec. 244 Cr.P.C and if no case has been made out against the accused, i.e., if unrebutted it would not warrant a conviction, then he shall discharge the accused from the case under section 245(1) Cr.P.C. Otherwise, the Magistrate has to proceed to frame charge under section 246(1) Cr.P.C.
Can trial court take into consideration the materials produced by the accused at the time of considering discharge application?
In the case of Satish Mehra v. Delhi Administration and Another ((1996) 9 SCC 766) the Hon’ble Apex Court held that, Under Section 239 of the code, the Magistrate has to give the prosecution and the accused a chance of being heard besides taking cognizance of the police report and the documents sent therewith. The Code makes it mandatory for the Court to give a hearing to the accused to determine whether it is essential to proceed to the next stage. The accused is entitled to present his oral arguments at the stage of framing charge. The Hon’ble apex court observed in the above judgment that, if the accused produces any trustworthy material at that stage which might drastically affect even the very feasibility of the case, it would be very inappropriate to recommend that no such material shall be taken into consideration by the Court at that stage.
The Hon'ble Supreme Court regarding the right of the accused to produce materials and documents before the Courts at an early stage of the Trial has held in 'Rajiv Thapar vs. Madan Lal Kapoor' ((2013) 3 SCC 330), that if the accused by producing documents of sterling and impeccable quality which cannot be justifiably refuted, is able to show that it is not necessary to proceed with the Trial since the said material would rule out the assertions contained in the charges levelled against the accused as being false, then the Court should not shut out those documents as the same can save a lot more time of the Court from being wasted in the name of Trial proceedings.
Further, in 'Nitya Dharmananda @ K. Lenin vs. Sri Gopal Sheelum Reddy' (AIR 2017 SC 5846) regarding invoking of provision under section 91 of Cr.P.c at the stage of framing charge, it is held by the Hon’ble apex court that,
“it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet. It does not mean that the defence has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of the court, at the stage of charge.”
Discharge in summons case:
The Section 251 Cr.P.C deals with the questioning of the accused in “Summons case”. As per Sec. 251 Cr.P.C the particulars of the offence must be put to the accused. There is no express provision for discharge in summons case. The Supreme Court analysed the discharge or dropping of proceedings in summons case in the case of Amit Sibal v. Arvind Kejriwal and observed that the trial court has no power to drop proceedings/discharge in a Summons Trial.
Conclusion:
The conviction rate in India is far less in criminal cases. Most of the cases end in acquittal for want of sufficient proof or materials. The section 227, 239 and 245 of Cr.P.C if invoked in appropriate cases, considerable number of maliciously prosecuted cases can be disposed off at the initial stage. The advocates should also consider filing discharge applications before the trial court instead of invoking provisions under section 482 of Cr.P.C for quash. The speedy disposal is the one of the fundamental rights of the accused persons guaranteed under the Indian Constitution. The discharge is an effective provision which provides speedy disposal in cases of malicious prosecution. Both the courts and the advocates should invoke this provision as much as possible. As a result, there would be less numbers of malicious prosecution by the police. I would like to conclude by saying that the provisions for discharge ensures the fundamental right of accused persons and the courts should consider invoking the said provisions Suo moto in appropriate cases and the advocates should also choose to file discharge application in appropriate cases.