Discharge and Quash are favourite topics of discussion in most of the Men’s Rights Groups 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 completely from all sections including 498a. 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 efforts uselessly trying for Discharge or Quash.
In this article I am trying to focus on what is a Discharge Petition and under which circumstances the same may be presented in a court of law in India. Discharge and Quash are two different things and I would discuss Quashing in some other article. But one thing is common, Discharge and Quashing happens on legal grounds only and not based on the evidences.
Generally and taking the definition from section 239 Code of Criminal Procedure, Discharge as provided would mean:
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.
Before a discharge is ordered, three preliminary steps are gone through (i) consideration of police report and the document referred in section 173 and which are furnished to the accused. (ii) examination, if any, of the accused as the Magistrate thinks necessary and (iii) 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. But the Magistrate cannot look into the statement of the accused in the case diary as it is an extraneous material.
So, it essentially means that this is just a beneficial provision of law, which enables the court to save the accused from a protracted and long trial, if there is no sufficient ground to proceed against him. The words “giving the accused an opportunity of being heard” mean hearing the submission of the accused on record of the case as filed by the prosecution and documents submitted therein. It cannot mean that an opportunity be granted to the accused at this time to file any material which is favouring him. (State of Orissa Vs Debendra Nath Padhi AIR 2005 SC 359, (2005) I SCC 568) Such an exercise would essentially be nothing more than a mini-trial.
When can a court order discharge? When a magistrate comes to a conclusion that there are not sufficient grounds for proceeding against the accused for trial, he may record reasons for the same and discharge the accused. The term ‘ground’ in this context 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 evidences and putting them for cross-examintaion. So a loosely defined thumb rule for understanding may be whether the material collected by prosecution by way of oral statements and any other evidence constitute a case against the accused or not. Whether the material is true, false, make believe, laughable or whatever is not considered at this time.
In other words, if the evidence the prosecution proposes to adduce is fully 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 prima-facie case has been stated by Apex Court in Union of India Vs Prafulla Kumar Samal AIR 1979 SC 366 as “By in 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 in 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 in order to see whether or not 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 contemplated under section 239 is thus a statutory right and a third party cannot have any say in the matter (R. Balakrishna Pillari v. State of Kerala, 1995 Cri LJ 1244 (ker)). Where court has taken cognizance of a time-barred offence, the accused cane be discharged at the time of framing charge. Mere delay in trial is no ground for discharging the accused. An illegality committed by the investigating agency during the course of investigation will not be sufficient ground to discharge. No right of appeal is provided against an order made in exercise of power under this section.
And sadly for all people facing malicious prosecution but possess enough evidence all courts and judgments have been unanimous that – Appreciation of Evidence is not permissible at the time of discharge.
Hence when deciding whether to spend time and money in discharge or not, please read the material available in Challan and Chargesheet and keep all your evidences aside. I also provide realistic legal guidance on such matters and you may contact me for my legal opinion on your specific case.
“The safety of the people shall be the highest law.” Marcus Tullius Cicero
You may read Following Success Stories of Discharge:
- Husband Discharged of 498a on grounds of territorial Jurisdiction and Vague Allegations.
- 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
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