Discharge u/s 239 CrPC Myth Buster | Discharge Police Instituted 498A

My complaint and Chargesheet do not contain particulars like the date and time of the incidents. Shall I file a Discharge?

The law is very clear: CrPC 212 says that if the details of the time and date of the incident are not mentioned in the material on the Chargesheet, the court cannot meet the criteria under CrPC 212. Hence, if not stated, the essential requirement of the date and time is that the accused would not be able to meet the case at all or claim their defence with respect to what would only be vague allegations. Hence, the accused shall be discharged unless no allegations have particulars of date and time. This holds when the complaint is against many people, and against some, these particulars are missing.

I want at least some family members discharged from the case; what shall I do?

There is no magic pill in this regard; there are instances where the complete case is so tightly made that all accused must stand trial. It would help if you sat with someone who has knowledge of the law and discussed the complete Chargesheet threadbare. Mostly, it is seen that the complaint and witness statements level general and omnibus allegations against all the relatives of the husband, and mostly, the role of each of the accused is not clearly defined in the complaint and, thus, in the Chargesheet. Unless there is specific attribution to a particular accused, s/he can be discharged.

In most cases, the accused, other than the mother-in-law and Husband, are discharged of an offence under S. 406. Also, some distant relatives are discharged from all sections as their role is limited to instigation and sans particulars. I also provide pragmatic legal guidance on such matters, and you may contact me for my legal opinion on your case.

Charges in my case have been framed. Can I move for Quashing?

There is no bar to moving for quash after framing of charges. Quashing and Discharge are two distinct remedies. The high courts are generally reluctant to accept the quash petition. The reason is that the Magistrate is expected to apply its mind to the material on the Chargesheet regarding whether a prima facie case is made out. It is only if there is ground available other than that the Magistrate has erred in suspicion and grave suspicion that it is better to move a revision petition against charge framing.

Why are the Particulars of Time, Place, and Incident attributed to a particular Person so Important?

Here, it is essential to read S. 212 of CrPC, which is what particulars should be in charge. Hence, the material must be included in the charge sheet; the court can not incorporate it.

212. Particulars as to time, place and person.
213. The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
214. When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, It shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219; (Provided that the time included between the first and last of such dates shall not exceed one year.)

Now comes an important aspect to which many people have drawn my attention. Most charges framed by courts have these particulars missing. The reason I ascribe to courts is that they are swamped. But this defect is curable. Even if you challenge the said Charge, the higher court would ask the magistrate court to pass a reasoned order spelling out the particular. However, the higher court will discharge only the particulars missing in the material available on the charge sheet.

We often hear about “Sufficient Ground for proceeding against the Accused” What is Sufficient Ground?

The word “Sufficient” means Adequate or Enough. The Magistrate is not required to toe the line of the prosecution but has to exercise his judicial mind to the facts of the case to determine whether enough particulars are available on the prosecution file, which can lead to a probable conviction if taken at face value. Of course, the court can’t weigh the evidence at that stage because that can only happen after cross-examination.

But the Prosecution witnesses are just the relatives of the Complainant, and no other evidence is attached.

The courts don’t weigh the oral evidence on any different footing than ordinary evidence. At least not at the time of framing of charges. Besides, whether a witness is interested can be proved by the accused only in a trial.

I am summoned in a private complaint case. Can I file discharge under S. 239 CrPC?

The provision of CrPC 239 is not applicable in private complaint cases as there is no police report after investigation under CrPC 173. Thus, the Magistrate can not discharge the accused under CrPC 239. However, similar relief can be sought under CrPC 245 in the private complaint case. Also, if the offence is triable by the court of Session, the same relief can be claimed u/s CrPC 227. In fact, the grounds of discharge remain the same whether in a complaint case/ police case forwarded to a Magistrate or even in a court of Session, and the grounds are defined in Central Bureau of Investigation Vs K Narayana Rao [AIR2013 SC (Cri) 448] as follows:

Exercise of jurisdiction under Sections 227 and 228 CrPC

21. On consideration of the authorities about the scope of section 227and 228 of the Code, the following principles emerge:

(i) The Judge, while considering the question of framing the charges under Section 227 CrPC, 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. The test to determine a prima facie case would depend upon the facts of each case.

(ii) Where the materials placed before the court disclose grave suspicion against the accused, which has not been adequately explained, the court will be fully justified in framing a charge and proceeding with the trial.

(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he were conducting a trial.

(iv) If, based on the material on record, the court could form an opinion that the accused might have committed the offence, it can frame the charge. However, for conviction, the conclusion must be proved beyond reasonable doubt that the accused has committed the offence.

(v) When framing the charges, the probative value of the material on record cannot be gone into. Still, before framing a charge, the court must apply its judicial mind to the material placed on record and be satisfied that the commission of the offence by the accused was possible.

(vi) At Sections 227 and 228, the court must evaluate the material and documents on record to find out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected, even at that initial stage, to accept all that the prosecution states as gospel truth, even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused, and at this stage, he is not to see whether the trial will end in conviction or Acquittal.”

The court has disregarded our discharge petition and framed the charges, which we think are in error; what remedy do we have?

Like any other order, a power of revision is vested with the Court of Session or High Court against the order of discharge, too. So, you can challenge the said order in a higher court.

Is a Separate application for discharge required?

There is no need for a written application. One can always argue at the time of framing of charges in the court. It can be a practice that the Magistrate may ask for a written application, in which case it must be provided.

I have a lot of documents in my defence, and I want to annexe them with my discharge application, but the court is not accepting them.

The court is correct in its approach. When framing charges, the court must consider only the police papers referred to under S. 173 CrPC and the documents sent with them. The accused cannot produce documents for his defence case to seek discharge.

At the time of discharge, will the court look only at the complainant’s accusations, or will it also consider any material by the complainant that points to the innocence of the accused?

While framing the charge, the court must also consider exculpatory statements and evidence (proving the accused’s innocence) from the record. Being an impartial umpire, the judge is legally bound to weigh both sides equally after examining complete evidence on record of the case. He cannot sit either as a spokesman for the prosecution or post office for prosecution. You may contact me to prepare such legal arguments for your specific case, which would persuade the court to consider such decisive favourable factors.

What is the difference between discharge and Acquittal?

Discharge can be done before the charges are framed, whereas Acquittal can be done only when the trial concludes. Discharge does not mean that the accused has not committed the offence; it just means there is insufficient evidence to proceed with the trial. More importantly, If any evidence is gathered later on, the accused may be tried again. Acquittal means that the accused has been held innocent and cannot be tried again for the same offence once he has been acquitted.

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