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Discharge of Accused in Criminal Cases

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Discharge of Accused in Criminal Cases PAPER PRESENTATION ON DISCHARGE OF ACCUSED IN CRIMINAL CASES By Smt. Prema Rajeswari Special Sessions Judge for Trial of offences under SC's/ST's (POA) Act-cum- V-Additional District & Sessions Judge, Karimnagar. Pg.1 DISCHARGE OF ACCUSED IN CRIMINAL CASES Introduction: 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. Classification of Criminal Cases: The two major classifications of criminal cases under the Code of Criminal Procedure are: 1. Cases instituted on the basis of a police report (Sections 238-243). 2. Cases instituted otherwise than on police report based on the complaint (Sections 244-247). There are four types of the trial procedures provided under Cr.P.C.: 1. Summary trials (Sections 260-265), 2. Trial of summons cases by Magistrates (Sections 251-259), 3. Trial of warrant cases by Magistrates (Sections 238-250), and 4. Trial before a court of Sessions (Sections 225-237). The procedure of warrant cases is used for the trial of warrant cases by the Magistrates and the trial before the court of sessions. Whereas trial of summons cases by Magistrates and summary trials are tried in a summons case trial. Discharge of accused in warrant cases on the basis of a police report. The regular procedure of law is that the police after completing its investigation files the final report/charge sheet under Section 173 of the code. Thereafter trial against the accused commences by the concerned Court. However, Section 239 and 227 of Cr.P.C, provide that before the charges are framed against an Accused person, he can be discharged. Pg.2 Section 239 of the Code of Criminal Procedure states when accused shall be discharged. If, upon due consideration of the police report and all the documents sent under Section 173 along with examination of the accused, if any, as Magistrate 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 have to consider the Charge sheet and documents appended thereto by the Police under Section 173, Cr.P.C: •The Magistrate may, if he deems fit, examine the Accused. •Thereafter the arguments of both the Prosecution and the Accused should be heard. •Grounds against the accused to be baseless- There should not be any evidence present against the accused. If the Court considers that there is no prima facie case against the accused. If all the above conditions are fulfilled, then the Accused shall be discharged. Whether the magistrate has to take cognizance of the material brought by the accused? In the case of Satish Mehra v. Delhi Administration and Another reported in (1996) 9 SCC 766, the Hon'ble Apex Court held that, Under Section 239 Cr.P.C, 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 Magistrate should apply judicial mind while considering the discharge application. If the accused produces any trustworthy material at that stage which might drastically effect 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. Pg.3 When accused shall be discharged in Sessions trial: Section 227 of the Code defines that if the judge considers that there is no sufficient ground for proceeding against the accused, upon hearing the submissions, of the prosecution and the accused and consideration of the record of the case along with the documents submitted therewith, he shall discharge the accused and record reasons also for doing so. Mandatory cases where Sessions Judge is bound to discharge: 1. Where he is precluded from proceeding because of a prior judgment of High Court, 2.Where the prosecution is clearly barred by limitation, 3.Where the evidence produced is not sufficient, 4.Where there is no legal ground for proceeding against the accused, or 5.Where no sanction has been obtained. Discharge of Accused and its Procedure under Section 227 of Cr.P.C. Section 227 Cr.P.C deals with ªdischarge of the accused in a ªSessions Casesº. Section 226 Cr.P.C also must be read together. There are ªtwoº important words in Section 227 Cr.P.C. (a) Hearing submission of the accused [AIR 2005 SC 359] (b) ªNo sufficient grounds for proceeding against the accusedº. 1) AIR 2008 SC 299. 2) Union of India Vs. Prafulla Kumar Samal and another [1979 (3) SCC P.4] (c) Proper basis for framing of charge [2008 (2) SCC 561] After receipt of case documents supplied under section 207 Cr.P.C whether the accused can bring it to the notice of the Court, that no material is available to proceed the case against him and can he ask for discharge. 1) Dattatreya Samant Vs. State of Maharashtra [1981 Cr.L.J.1819 (Bombay)] 2) Public Prosecutor Vs. T.D. Khajanalli [1980(2) ALT 138]. Discharge is a Judicial order. 3) Rama Swamy Gounder Vs. State [1981 Crl.L.J. 1054 (Madras)] 4) Ajay Kumar Parmar Vs. State of Rajasthan [2012 (12) SCC 406] Pg.4 7 GUIDING PRINCIPLES ON DISCHARGE AND FRAMING OF CHARGE In the case of Vijayan Vs. State of Kerala and another (2010 SCC 398 SC. 1979 3 SCC P.4=AIR 1979 SC P.366) in the case of Union of India Vs. Prafulla Kumar Samal and another. Where in the Hon'ble 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 can not 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. Pg.5 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. Legal Authorities on the above seven points: 2009(3) SCC 850 (Palwinder Singh Vs. Balwinder Singh). 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. 2010 (9) SCC 368 (Sajjan Kumar V. CBI) ± Land mark Judgment. 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. 2014(11) SCC 709 State of Tamilnadu Represented by the Inspector of Police Vigilance and Anti corruption Vs. N.Suresh Rajan (In ACB case). 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. Whether the material which is produced by the accused can be looked into by the session's court? In the case of Satish Mehra v. Delhi Administration and Another reported in (1996) 9 SCC 766, the Hon'ble Supreme Court held that if the accused produces any convincing material at the stage framing of charge which might drastically effect the very sustainability of the case, it is unfair to suggest that no such material should be considered into by the court at that stage.
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