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What is a Discharge Petition under Crpc 239?

What is a petition

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:

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 are applicable only to Warrant Cases that are instituted on Police complaint. Criminal case under section 138 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 Protection of Women from Domestic Violence Act, 2005.

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

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 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

If you have any query related to gender biased laws join SahodarWhatsapp Groups by sending Whatsapp message “Subscribe” to Sahodar Trust No. 9811850498

46 Comments

  1. Devi Singh Panwar April 18, 2018 Reply

    Quires have been well answered.
    what is remedy if your Discharge Application Under Section 239 Cr.P C has been disallowed/dismissed.
    Revision is not permitted U/S 397 Cr.PC as dismissal under 239 Cr P C is interlocutory order. Then only remedy under Article 226 and move application u/S 482 Cr. P C
    Please comment.
    Regards

    • Shonee Kapoor April 20, 2018 Reply

      Revision is maintainable as it is a point of law

  2. Madhuri April 10, 2018 Reply

    Hi, Thanks for sharing such valuable information to all of us. As a junior advocate such information is very helpful for us to understand and to grow.

    • Shonee Kapoor April 12, 2018 Reply

      Thanks for the appreciation.

      Team shoneekapoor.com

  3. vijay February 19, 2018 Reply

    discharge petition is prepared .it needs to be verified by expert who has success in this particular area. can you check and suggest me. i will send draft prepared. what will be your charges.

  4. Satish Kumar Galla February 13, 2018 Reply

    Hi Shonee,
    I want to file Dismiss petition for my family members in DVC case. But you supposed that Provisions of section 239 Would not apply for PWDVA 2005. In which section can i apply Dismiss/Discharge petition for my family members. Please suggest me .

    Thanks
    Satish

    • Shonee Kapoor February 13, 2018 Reply

      You can file the same under S. 25(2) of PWDVA, 2005 Act or S. 245 of Criminal Procedure Code. It depends on the merits and pleadings of the case.

  5. Siddarth Roy December 17, 2017 Reply

    My 498a, DVC, crpc 125 cases running in state A, I resides in state B (750km away),
    My wife filed protest petition to add remaining a2 to a7 after police removed their names, Lower court accepted the petition and ordered to add a2-a7 based on three independent evidences who has given statements against me in their statements but not on a2-a7. My wife, her parents given statements against a2-a7.
    Now when I consulted a high court lawyer he suggested to contest in lower court only, he says in quash if high court says something against a2-a7 then it would create problem in lower court.
    I have grounds of jurisdiction, no allegations are occurred in state A where the cases are running.
    What should I do?
    Should I go to lower court for discharge petition?
    Should I go to lower court to revise protest petition order? Can I show the grounds of jurisdiction in lower court?
    Should I go to high court for quash (for A2-A7)?

    • Shonee Kapoor December 26, 2017 Reply

      Unless one studies the complete documents, nothing can be suggested. I request you to get in touch using contact me page

  6. shah anil kumar December 5, 2017 Reply

    When any criminal case under hearing and in this case total accused 9 members and after case examination can accused A8 and A9 file discharge petition from the case

    • Shonee Kapoor December 6, 2017 Reply

      Question is not clear.

  7. arun kushwan December 1, 2017 Reply

    if discharge application/petition under section 239 cr p c has been dismissed by JMFC court, then can i file appeal or revision?

    • Shonee Kapoor December 2, 2017 Reply

      It has to be revision

  8. Anand July 25, 2017 Reply

    Incredible piece of information on the process and know how of Crpc 239 /227. I think the amount of detailing and easy to understand approach from the lay man’s perspective is truely helpful. Thanks for spreading the much needed awareness and help to many distressed litigants selflessly.. Your are acts are simply great and a Ray of hope for many… thanks a ton Sir..

    • Shonee Kapoor July 25, 2017 Reply

      Thanks for liking it. Spread it amongst other warriors if you liked it.

  9. Baldev Singla July 5, 2017 Reply

    Chargesheet (u/s 173 CrPC) filed by police u/s IPC 336,323,448,148/149 & 25/27/54/59 Arms Act on 20/07/2015. Still charges have not been framed by the CJM. I have read if charges aren’t framed (and trial commenced) within 2 years of filing challan where offences are punishable with imprisonment upto 3 years, the accused are entitled to be discharged. Is my case fit for this and can you provide relevant SC judgement in this regard? 2001(1) Mad LW (Cri) 382(385) ; 2000(10) SCC 68(69) ; 2000 SCC(Cri) 696 ** 2001 Cri LJ 4416 (4417) ; 2001 All LJ 1977

    • Shonee Kapoor July 25, 2017 Reply

      I have not studied this judgment. Can you mail the same to me.

  10. Sujesh Nair June 25, 2017 Reply

    Hi Mr Shonee,
    My lawyers suggest that I wait for trial rather than filing discharge or quash petition. I have read the charge sheet and fir, none of these accuse me as involved in any crime, mental or physical (probably because my wife was expecting a reunion then). My lawyer said r/w 34 covers that part. It’s my mother and brother who are blamed. Framing of charges is due in second week of July. Will it be possible to file discharge after that? Please advise. The case is on for last 3 years and lawyers say only way is either to wait for trial or pay huge money to wife.

    • Shonee Kapoor July 3, 2017 Reply

      It would be prudent to argue on charge right now or go for revision of charges,

  11. Kunwar Alok June 15, 2017 Reply

    Very useful and can be used as weapon by men In 498 cases where the girl accuses the party with such wrong and contradictory​ statements .truly awesome sir and thank you very much

  12. JustIce War 8 Bar June 6, 2017 Reply

    Please correct Para 6 Line 2 from “gibes” to “gives’

    • Author
      Shonee Kapoor June 7, 2017 Reply

      Thanks, corrected

  13. jai parkash retired governemnt official May 26, 2017 Reply

    why you call it application of discharge undersection239 .in the section there is no mention of application by accused. It only says”making suchexamination o,if any,of accuseds magistrate thinks necessary” so here no question of application by accused .the examination of accused is the decsion of magistrate and not of accuse or applicationof accused .
    Furthe”and after giving the proscutionand accusedan oppurtunityof being heard” Here also the decision of giving opporunity is that of magistrate or rather it is the duty of magistrate to give the opportunity . no question of any application here also . The accused while being examined may refuseto answer aso on being giventhe opportunity of beeing heard may not say any thing or may venture his reasons for discharge .It is all oral . but may be accused may be permitted to gve his reasons in writing .
    so if he gives the reasons inwriting do you call this an applicationof discharge

  14. S. Sangwan April 18, 2017 Reply

    Dear sir, I’m encouraged by your selflessness to ask whether this provision (of discharge u/s 239) also applies to false cases u/s 354 etc.

  15. Jas April 1, 2017 Reply

    In chargesheet IO removed my married sister and BIL name and also removed my old aged mother name with comment that it is found during investigation that mother is old and sick cant do whatever mentioned in Complaint by lady.
    It is also mentioned in CS that my wife harrased my mother.

    Questions:
    1. Can my wife again add names of my mother, sister and BIL if yes how easy that would be for her?

    2. Till what stage wife can add names under trial?

    3. Can my mother or sister file any case against my wife now as CS says they are innocent but my wife gave complaint against them?

    • Site Admin April 3, 2017 Reply

      Dear Jas,

      PFA your answers

      A1. Yes
      A2. She can file a protest petition against chargesheet submitted. Also, she may file an application u/s 319 CrPC after her witness.
      A3. Only after reading the complete Chargesheet can this query be answered. Feel free to contact me on Skype or attend Sahodar Weekend Meeting.

      Regards,

  16. Zafar Alam March 28, 2017 Reply

    please send some recent decision relating to crpc 239 from apex court of PHC

    • Site Admin April 3, 2017 Reply

      Dear Zafar,

      For P&H courts, you can use judgments from Supreme Court as well HC of P&H. There is huge collection of Discharge Judgments available http://www.shoneekapoor.com/discharge-judgements/ . I can also provide in-depth Case-Law research/Landmark Judgments relevant to your case, on a reasonable charge, feel free to let me know if you need my assistance.

      You may also want to read my latest article explaining FAQs for Discharge.

      Regards,

  17. Hemantha Rao February 13, 2017 Reply

    Sir I have filed for divorce on cruelty basis on my wife in the year 2010 and immediately after receiving the summons, My has filed an false dowry harassment case on whole my family members. And most probably in month of may 2017 evidence is going to start at this stage can I file for Quashing the case. and my younger brother and sister are spared from charge sheet.

    • Site Admin February 21, 2017 Reply

      There are specific grounds of quash. You can certainly file quash at this stage and you should read the most comprehensive article on Quashing criminal complaints at http://www.shoneekapoor.com/quash/

      Feel free to visit Sahodar Weekend meeting at Rohini or Jangpura in Delhi

  18. Ruchi January 20, 2017 Reply

    Another thing, in which court discharge petition is filed?

    • Site Admin February 21, 2017 Reply

      Trial Court

  19. Ruchi January 20, 2017 Reply

    What is challan? Where can I collect it?

    • Site Admin February 21, 2017 Reply

      Challan is formal name for Chargesheet. Its provided by the court on your first date in the trial court in that specific criminal case.

  20. Abhilash December 17, 2016 Reply

    Is taking bail necessary before filing discharge petition u/s 239 crpc

    • External Admin December 28, 2016 Reply

      Discharge and Bail are different matters and are given on their own merits. However, in a general 498A case, the stage of bail is earlier than discharge.

  21. Kuldeep October 31, 2016 Reply

    Hello Sir,
    Thanks for sharing such a wonderful thing in easy language.
    I would like to know if CrPC 239 can be exercised only by the High Courts or lower courts also have power to use it.
    Also if a person has been accused of 498a,406,506,34 , is it possible to ask for discharge under few sections , say 406, while framing of charges ?

    Regards
    Kuldeep

    • External Admin November 4, 2016 Reply

      Trial Court has the power to discharge u/s 239 CrPC

      Also, it’s possible to be discharged of one section too.

  22. T V RAAO August 1, 2016 Reply

    “Provisions of Section 239 CrPC would not apply to Protection of Women from Domestic Violence Act 2005”. – Normally 498A comes bundled with other sections along with DV. Does this mean 498A accused will not get the relief of Discharge Petition ?? Are there any decided cases granting relief of discharge or quash ??

    • External Admin August 5, 2016 Reply

      Dear TV Raao, 498A and DV are separate trials. A person accused under section 498A can apply for Discharge under section 239 CrPC. Please check many useful and hand-picked judgments at http://www.shoneekapoor.com/discharge-judgements/

  23. Harish July 30, 2016 Reply

    Very nice and hopeful for suferer like us giving a ray of hope.

  24. Akankasha July 27, 2016 Reply

    Sir, this is the most comprehensive article on detailing provisions of crpc 239. You truly are a Messiah for the men facing fake dowry and 498A cases.

    The lucidity of this article and practicality is amazing. Thank you from the bottom of my heart.

    • External Admin July 28, 2016 Reply

      Thanks Akankasha for your kind comments.

  25. Vishal July 27, 2016 Reply

    As always.. Awesome compilation Sir..

  26. Navdeep July 27, 2016 Reply

    Very useful information. Thanks very much sir.

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