The usual procedure in a criminal case is that if the police
investigation shows there is a prima facie criminal offence against
the accused, then a final police report (Charge Sheet/Challan) is filed.
The accused is then put to trial for framing of charges against him, by
However, the court can discharge the accused person before it frames the
charges against him if no offence is prima facie made out.
Legal provision on discharging an accused
The Section 227 of the Criminal Procedure Code, 1973 (CrPC) deal with
discharge of the accused in a Sessions Case by the Sessions Judge.
The Section 239 deals with the discharge of an accused in a warrant case
by the Magistrate.
The Section 245 of the CrPC provides for discharge of an accused in a
Complaint Case (instituted otherwise than on police report) by the
When the judge should discharge the accused
In Sessions and Warrant Cases falling under the Sections 227 and 239 of
the CrPC, if the judge considers that there is no sufficient ground for
proceeding against the accused upon
considering the police report along with the documents sent with it
under Section 173,
making necessary examination of the accused and
after giving the prosecution and the accused an opportunity of being
he can outright discharge the accused and record his reasons for so
In discharging the accused the judge has to apply his judicial mind and
decide whether a sufficient case for trial of the accused has been made
out. The recording the reason for the discharge enables the superior
court to examine the correctness of the reasons the judge held while not
proceeding against the accused. In case there are suspicious
circumstances the judge, exercising his wider discretion, can proceed to
the trial as well.
In Complaint Cases falling under Section 245 of the CrPC, the Magistrate
on hearing the prosecution and taking all evidence produced in support
of the complaint if the Magistrate considers that no case against the
accused has been made out he shall discharge him. In this kind of cases,
the Magistrate can discharge the accused well before this stage also.
The precise purpose of the provision of discharge is to save the accused
from prolonged harassment of a protracted trial when a firm accusation
is not sufficiently made out against the accused.
Ingredients for Discharge
The Court will have to consider the final Police Report and the
documents filed by the Police under Section 173. Then both the
prosecution and the defence versions would be heard. If the Charge
against the accused to be found groundless or no iota of evidence
against the accused is brought out against the accused, then the accused
will be discharged.
Principles applicable in discharge
The judge while considering the question of framing the charges has the
undoubted power to sift and weigh the evidence to find out whether a
prima facie case against the accused has been made out or not.
If the materials produced before the court discloses a grave suspicion
the court is justified in framing the charge and proceeding with the
The test to determine a prima facie case is dependent on the facts of
the case. If two views are possible the judge can discharge him when the
materials do not show some sort of suspicion in regard to commission of
the offence. The suspicion need not be a grave one.
while exercising the function of charging or discharging the accused,
the judge should consider broader probabilities of the case, total
effect of the evidence and the documents produced before him, the basic
infirmities appearing in the case, and so on.
Applicability of Discharge
The discharge under Section 239 CrPC is applicable to Warrant Cases
(Cases of a serious nature) alone.
In many of the cases, the Final Report filed by the Police under Section
173 of the CrPC can be assailed in the court when it does not show the
material particulars pertaining to the offences alleged. If vital
elements of the crime are not made out in the police report, then the
court is liable to discharge the accused as no prima facie case is
In such a situation the court is left with no other way other than
discharging the accused.
Documents perused by the Court
At the stage of framing of charge, the prosecution evidence does not
commence. So the Magistrate has to confine his application of mind
primarily to the materials placed before it by the Investigation Officer
to arrive at a proper decision. If the court finds that the accused
might have committed the offence it can frame the charge, though such a
conclusion is not good enough to convict the accused. At the stage of
framing of charge, the court cannot go into the material details of the
evidence on record and cannot make a roving enquiry into the evidence.
Thus the Complainant’s allegations, Witness Statements and Charge Sheet
prepared by the police after investigation, are the crucial materials to
be considered by the Court while deciding the issue of discharge of the
Contents of a Discharge Petition
The petition should assert that no material particulars of the offence
have been specified in the F.I.R and the Charge sheet. It can point out
the vagueness in allegations in F.I.R and Charge sheet. It can also show
how the F.I.R and Charge Sheet do not show prima facie evidence of the
It can point out how the prosecution version of the case do not go
consistent with the testimony of the prosecution witnesses.
Contradictions present in the versions of the prosecution and witnesses
can be highlighted. The difference between the allegations in the charge
sheet and the FIR can be made out.
What a prima facie case means
The term prima-facie in the context of discharge means that there must
not be a single shred of evidence against the accused. Even though some
suspicion exists against the accused he can be discharged when the
suspicion is not so grave.
Difference between acquittal and discharge
An acquittal under the provisions of CrPC is conceptually quite
different from discharge.
After framing a charge there can be only one of the two possibilities in
a trial: the accused is either convicted or acquitted. On framing of
charge, if no evidence is led by the prosecution the court cannot
convict the accused. Then an order of acquittal alone can be passed. It
is not discharge.
But before framing the charge, the court need not conduct any elaborate
enquiry. It only considers whether no sufficient ground exists for
proceedings against the accused or not. If it finds no reason to
proceed, it will discharge the accused, otherwise the court will frame
the charge and proceed with the trial of the accused.