Discharge

What is Discharge?

‘Discharge’ has not been defined under the Code of Criminal Procedure, 1973, or the Bharatiya Nagarik Suraksha Sanhita, 2023. According to the Black’s Law Dictionary, it has been defined as the opposite of charge; to release, liberate, annul, unburden, disencumber.”

Official Definition

The provision of discharge comes after an investigation into a crime is completed by the police and a chargesheet under Section 173 of the CrPC (s. 193 of BNSS) or a complaint under Section 190 of the CrPC (s. 210 of BNSS), as the case may be, is filed against the accused. It can be said that discharge means refusing to proceed further after the issue of process.

It is a remedy that can be granted by the court to the accused who has been maliciously charge-sheeted by the police or against whom there is insufficient evidence to make out the offence as alleged. It is a beneficial provision to save the accused from prolonged harassment which is a necessary concomitant of a protracted trial.

Legal Provisions Relating to Discharge

Section 59 CrPC (Section 60 BNSS)

A person arrested by a police officer shall be discharged only after furnishing his own bond or on bail or under the special order of a Magistrate.

Section 227 CrPC (Section 250 BNSS)

After consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution on this behalf, if 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 in a trial before a court of session.

Section 250(1) of BNSS has introduced a sixty days period for the accused to file a discharge application from the date of committal in a case triable by Sessions court.

Section 239 CrPC (Section 262 BNSS)

In a warrant case instituted on a police report, after considering the police report and the documents sent with it under section 173 (s.193 of BNSS) 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.

Section 262(1) of BNSS has introduced a sixty days time limit to file a discharge application from the date of supply of copies of documents.

Section 245 CrPC (Section 268 BNSS)

In a warrant case instituted otherwise than a police report, after taking all the evidence referred to in section 244 of the CrPC (s.267 of BNSS), 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, the Magistrate shall discharge him.

Section 249 CrPC (Section 272 BNSS)

In the absence of the complainant on the day fixed for hearing of the case of an offence that is compoundable or non-cognizable the accused may be discharged by the Magistrate at his discretion.

Section 272 of BNSS has introduced and given discretionary powers to Magistrates to issue thirty days’ notice to the complainant before discharging an accused in a Complaints case.

Section 274 BNSS

Section 274 of BNSS has conferred expressed power to a Magistrates to discharge an accused in summons cases if he considers the accusations groundless and after recording the reasons in writing. No such provision was present in section 251 of CrPC.

Section 348 CrPC (Section 387 BNSS)

In a case being forwarded to a Magistrate for trial under section 345 or 346 for refusing or omitting to do anything which he was lawfully required to do or for any international insult or interruption, the court on submission of an apology by the offender may discharge him.

Section 398 CrPC (Section 439 BNSS)

On examining any record under section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrate subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate to make inquiry into the case of any person accused of an offence who has been discharged however unless such person should be given an opportunity of showing cause why such direction should not be made.

Procedure to seek Discharge

• To obtain this relief, the accused must file an application before the Magistrate Court or a Court of Sessions, depending on the nature of the offence before framing of charges by the court.
• While considering an application for discharge the court must review the Chargesheet filed and accompanying documents provided by the Police. It may choose to question the Accused if deemed necessary. Once both the Prosecution and the Accused have presented their arguments, the Court will assess the evidence.
• If it is determined that on the prima facie consideration of the documents and evidence on record, there are not sufficient grounds to frame charges against the accused, then the court shall discharge the accused and not proceed to the next stage of Criminal trial i.e. framing of charges.
• In case multiple accused persons are discharged and one or more of such accused persons are discharged, the court shall proceed to frame charges against other accused person(s) who have not been discharged, and the case shall then proceed only against such accused person(s).
• The Magistrate/ Sessions Court is bound to record reasons for passing an order of discharge or otherwise. An unreasoned order or a mechanical order rejecting a discharge application is liable to be set aside by a higher court through revision. The power of revision is available only to the Sessions Court and the High Court.

Types of Discharge

Discharge varies depending on the type of trial held. There are four types of trial procedures under the Criminal Procedure Code, 1973, and the Bharatiya Nagarik Suraksha Sanhita, 2023.

1. Trial before a court of Sessions
2. Trial of warrant cases by Magistrates
3. Trial of summons cases by Magistrates, and
4. Summary trials

Discharge in Trial before a Court of Session

As per section 227 of the CrPC (s. 250 of BNSS) upon consideration of the record of the case and the documents submitted, and after hearing the submissions of the accused and the prosecution on this behalf, if 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.

Additionally, Section 250(1) of BNSS has introduced a sixty-day time period for the accused to file a discharge application from the date of committal in such cases.

The Hon’ble Supreme Court formulated the following four guiding principles to be followed while exercising the power of discharging the accused under section 227 of the CrPC in the case of Union of India v. Prafulla Kumar Samal. They are -

1. The judge while considering the question of framing the charges 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.
4. The court can not act merely as a post office or a mouthpiece of the prosecution but it has to consider the broad probabilities of the case. However, this doesn’t mean that the judge should make a roving inquiry into the pros and cons of the matter and weigh the evidence as if a trial were being conducted.

In the case R.S. Mishra v. State of Orissa it was held that the victim has the right to be heard during Discharge. Normally a victim does not participate in discharge proceedings under section 227 of the CrPC. But if in a case wherein the victim is not sufficiently reported by the prosecution and in cases where the interest of the victim is adequately protected, there is nothing wrong with the part of the victim in stepping in with a request for being heard. In such cases, the version of the victim should not remain unheard.

Discharge in a Trial of Warrant Cases By Magistrate

In cases Instituted on a Police Report -

As per section 239 of CrPC (s.262 of BNSS) upon considering the police report and the documents sent with it under section 173 (s.193 of BNSS) 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.

Additionally, section 262(1) of BNSS requires an accused to file a discharge application within sixty days from the date copies of documents were supplied.

In cases Instituted otherwise than on a Police Report -

As per section 245(1) of the CrPC (s.268 of BNSS) upon taking all the evidence referred to in section 244 of the CrPC (s. 267 of BNSS), 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, the Magistrate shall discharge him.

Subsection (2) of 245 of CrPC (s.268(2) of BNSS) gives the Magistrate enough jurisdiction to discharge the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

Discharge in a Trial of Summons Case

There is no express provision for discharge in a summons case under CrPC. The accused's only alternative way to seek remedy was to invoke the High Court's extraordinary jurisdiction under section 482 of CrPC.

In Subramanium Sethuram v. State of Maharashtra & Anr, it was held that Discharge, Review, Re-Consideration, Recall of order of issue of process under section 204 of the CrPC, is not contemplated under the CrPC in a Summons Case.

The Supreme Court analysed the discharge or dropping of proceedings in the 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.

However, the BNSS has added a new provision under section 274 conferring the Magistrate to release the accused if he considers the accusations to be groundless, provided, the reasons have been recorded in writing. This shall have the same effect as discharge.

Discharge in a Summary Trial

Similarly, there is no provision for discharge in a summary trial in either CrPC or BNSS. In every summary trial in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding.

Appearance in Official Databases

The National Crimes Records Bureau gives annual data of cases discharged in various crimes under the Indian Penal Code and Special Local Laws across all states and UTs.

Research that Engages with the term

This blog analyses the changes brought in by the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 to the procedure of discharge.

International Experiences

Under UK legislation “A discharge means that the person is released from court without any further action. But they will still get a criminal record. It is a type of conviction where a court finds you guilty but does not give you a sentence because the offence is very minor. Discharge can be of two types - absolute & conditional. An absolute discharge means that the court has decided not to impose a punishment because the experience of going to court has been punishment enough. A conditional discharge means that, if the offender commits another crime, they can be sentenced for the first offence and the new one.”

In American law under the Federal Rules of Criminal Procedure during the preliminary hearing, If the magistrate judge finds no probable cause to believe an offence has been committed or the defendant committed it, the magistrate judge must dismiss the complaint and discharge the defendant. A discharge does not preclude the government from later prosecuting the defendant for the same offence.

Under Canadian law, a discharge means that an individual has been found guilty of an offence, but it will not result in a conviction on their record. Although a discharge does not count as a criminal record, it does stay on record for a specified period. An absolute discharge will appear on record for one year without any probationary term, while a conditional discharge requires a probationary term and remains on record for three years.

Section 730 of the Criminal Code of Canada states that after a guilty plea or a finding of guilt, the court may “instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order.”  If you receive a conditional discharge and are caught breaching any of the conditions of your probation, you may be convicted of the original offence and sentenced accordingly.

Related Terms

Acquittal

An order of acquittal establishes the innocence of the accused after a full-fledged trial. It is recorded after the framing of charge against an accused and recording evidence and after the judgment on merit. It bars a fresh trial and it is not open to a court to prosecute such a person once again on the ground that fresh facts, further evidence, or additional materials are available against him. The verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is binding and conclusive in all subsequent proceedings between the parties to the adjudication.

Acquittal is a verdict that declares the accused is not guilty of the offence, and it occurs after the charges are framed against the accused. On the other hand, discharge is an order given by the Magistrate that there are not enough grounds to lead the proceedings further against the accused, and it takes place prior to the framing of charges. If strong and material evidence is found, fresh proceedings can be started in case of discharge. However, acquittal restrains the second trial regarding the same offence or a different offence, considering the same facts.