How to File a Discharge Petition Under CRPC Section 239 in a Domestic Violence Case.

Discharge in criminal cases and Quash are favorite topics of discussion in most of the Men’s Rights Group’s weekly meetings, discussions on web portals and even in WhatsApp groups. The same is buoyed by the partial discharges from 406 or other allied offences like 325, 313, etc. or even when some of the relatives are discharged in a criminal case entirely from all sections, including 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023). It seems to have caught the fancy of people facing Dowry Harassment charges. But sadly, most don’t understand the intricacies of the same and spend considerable time, money and effort uselessly trying for Discharge in criminal cases or Quash.

In this article, I am trying to focus on what a discharge in a criminal case is and under which circumstances the same may be presented in a court of law in India. Discharge in criminal cases and Quash are two different things, and I will discuss Quashing in another article. But one thing is common: Discharge in criminal cases and Quashing happen on legal grounds only and are not based on evidence.

Generally and taking the definition , Discharge of accused under section 239 crpc is as provided would mean:

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.

The provisions of section 239 CrPC apply only to Warrant Cases instituted on Police complaints. A criminal case under section 138 of the Negotiable Instruments Act for dishonour of cheque is a summons case, and section 239 CrPC would not apply. (Bhwani Denim and Apparels Ltd. V. M/s Bhaskar Industries Ltd, 2003 CrLJ NOC31:2002 1 MPLJ 243). Provisions of Section 239 CrPC would not apply to the Protection of Women from Domestic Violence Act, 2005.

There are Supreme Court judgements on section 239 crpc, which explains that the magistrate has to give the prosecution and the accused the chance of being heard besides taking cognizance of the police report and the document sent along with it.

Before a discharge is ordered, three preliminary steps are taken:

1. con: consideration of the police report and the document referred to in section 173, which are furnished to the accused.
2. examination, if any, of the accused as the Magistrate thinks necessary and
3. giving prosecution and the accused an opportunity of being heard and then to consider where the charge is groundless. (State of Mizoram v. K. Lalruata, 1992 Cri LJ 970 (Gau)). The statements under section 161 CrPC are part of the documents mentioned under section 173 CrPC. However, the Magistrate cannot look into the accused’s statement in the case diary as it is extraneous.

It essentially means that this is just a beneficial provision of law, which enables the court to save the accused from a protracted and lengthy trial if there is no sufficient ground to proceed against him. The words “giving the accused an opportunity of being heard” mean hearing the accused’s submission on record of the case as filed by the prosecution and documents submitted therein. It cannot mean that an opportunity is granted to the accused at this time to file any material that favours him. (State of Orissa Vs Debendra Nath Padhi AIR 2005 SC 359, (2005) I SCC 568) Such an exercise would be nothing more than a mini-trial.

When can a court order discharge of the accused under section 239 crpc? When a magistrate concludes that there are insufficient grounds for proceeding against the accused for trial, he may record reasons for the same and discharge the accused under section 239 croc. In this context, the term ‘ground’ does not mean the ground sufficient for conviction but only sufficient for trial. Because the guilt can be ascertained only at trial after taking all evidence and putting them for cross-examination, a loosely defined thumb rule for understanding may be whether the material collected by the prosecution through oral statements and any other evidence constitutes a case against the accused or not. Whether the material is accurate, false, make-believe, laughable or whatever is not considered now.

In other words, if the evidence the prosecution proposes to adduce is entirely accepted and, even without cross-examination or rebuttal, would not lead to the conviction of the accused or is not connected with the crime charged, we can assume that the prosecution has no case and thus no sufficient ground for proceeding with the trial.

This test, which we call the test of the prima-facie case, has been stated by Apex Court in Union of India Vs Prafulla Kumar Samal AIR 1979 SC 366 as “By and large, if the evidence placed before the judge gives rise to suspicion only as distinguished from grave suspicion, the trial judge will be fully within his right to discharge the accused.” Recently again, the Supreme Court judgements on section 239 crpc under P Vijayan Vs State of Rajasthan AIR 2010 SC 2951, (2010) 2 SCC 398 re-iterated, “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. At this stage, he is not supposed to see whether the trial will end in conviction or acquittal. He has to merely sift the evidence to see whether there is sufficient ground to proceed against the accused.” Based on the specific facts of your case, I can provide case-law research per your case requirement.

The discharge of the accused under section 239 crpc is thus a statutory right, and a third party cannot have any say in the matter (R. Balakrishna Pillai v. State of Kerala, 1995 Cri LJ 1244 (ker)). Where the court has taken cognizance of a time-barred offence, the accused can be discharged when framing the charge. Mere delay in trial is no grounds for discharging the accused. An illegality committed by the investigating agency during the investigation will not be sufficient grounds for discharge. No right of appeal is provided against an order made in the exercise of power under this section.

Under this section, Supreme Court judgements on section 239 crpc are given to understand the importance of the discharge petition.

Sadly, for all people facing malicious prosecution but possessing enough evidence, all courts and judgments have been unanimous that – Appreciation of Evidence is not permissible at discharge.

Hence, when deciding whether to spend time and money on discharge, please read the material in Challan and Chargesheet and keep all your evidence aside. I also provide realistic legal guidance on such matters, and you may contact me for my legal opinion on your case.

“The safety of the people shall be the highest law.” Marcus Tullius Cicero In case you are looking for answer on some queries of discharge, most of the queries are answered in detail in this Myth Buster HERE You may be interested in reading Landmark Judgments on Dischare or Supreme Court Judgments on section 239 crpc  by clicking HERE You may read Following Success Stories of Discharge:

1. Husband Discharged of 498a on grounds of territorial Jurisdiction and Vague Allegations.
2. All family members including Husband discharged of 498A/ 406 on grounds of no specific allegation

In case, you wish to get your case evaluated for success on discharge or quash, you may contact me for your specific case by visiting Contact Us