Discharge under Cr.P.C.


The Magistrate reserves the power, after not finding an iota of evidence against the accused, to discharge the accused before the trial begins. This power to discharge, vested in the Magistrate, is enshrined under Section 239 Cr.P.C. The Magistrate, before the framing of charges, has to decide whether the accused can be discharged or not. Further, the Magistrate has to record the reasons for the discharge. The Police Report and the Charge sheet sent to the Magistrate by the Police, under Section 173 Cr.P.C, form part of the Magistrate’s consideration to arrive at the finding that a prima facie case is missing against the accused.

For instance, a person is charged for forgery and wrongful economic gain, a vital element of the offence, isn’t proved, then the Court is liable to discharge the accused as there lies no prima facie case against them.

The Article explores the provisions of discharge under the Criminal Procedure Code. It studies the provisions under various sections involved in the procedure for discharge and attempts to shed light on their significance. Further, it highlights the powers vested into the Magistrate with regard to discharge. Furthermore, it gives an overview of the entire process of discharge and the stages involved therein—ingredients, the provisions that come into play etc. Finally, it lists certain questions that it attempts to answer.  

Discharge – when and how?

Ingredients of Discharge

The consideration of the Charge sheet and the Police Report submitted to the Court by the Police under Section 173 Cr.P.C. is a prerequisite for exercising power to discharge. Thereafter:

  1. The Magistrate, at his discretion, may examine the accused.
  2. The Prosecution and the accused would then be heard by the Court.
  3. Finally, if the Court comes to a finding that the charges levelled against the accused are groundless, the accused may be discharged.

The Court primarily looks at the Complainant’s allegations, witness statements, and the Charge sheet to ascertain whether there is a prima facie case against the accused or not. The Magistrate at this stage isn’t required to launch a full-fledged inquiry into the matter.

Under the Code of Criminal Procedure, criminal cases are classified under two broad categories:

  1. Police Cases – Cases instituted on police report under Section 173 Cr.P.C.. All the documents pertaining to investigation are furnished to the accused by the Magistrate, after which the accused can move to seek discharge.
  2. Private Cases – Cases instituted on a private complaint.

The cases are further classified as warrant-case, summons-case, summary-trial, and sessions case. The rules of discharge vary slightly across these types of cases—all these types of cases can arise out of a police case or a private case.

Discharge in Warrant Cases

Section 2(x) of the Cr.P.C. defines a warrant-case as a case relating to an offence punishable with death, imprisonment for life, or for a term exceeding two years.

The provisions of discharge under privately instituted warrant-cases differ from the ones for discharge under warrant cases instituted on a police report. Therefore, discharge under both has been expounded upon through the exercise of differentiation below:

Instituted through Private ComplaintInstituted through Police Complaint
After the recording of evidence, application for discharge can be entertained. 
Two cross-examinations (explained in detail after the table).One cross-examination
The trial commences after the charges are framed (Section 246 Cr.P.C.), and the evidence is recorded (Section 244 Cr.P.C.).The trial commences when copies of documents pertaining to investigation are furnished to the accused (Section 207 Cr.P.C.).

Double cross-examination. — While recording preliminary evidence under Section 244 Cr.P.C., the accused can either cross-examine the witness then or may defer it till the charges are formed. The accused can, after the charges are framed, again cross-examine the witnesses.

Section 245 Cr.P.C.

In the case of R.Rengarajan v A. Vasudevan, it was observed that Section 245(1) Cr.P.C. uses the words “ that, if upon such consideration”, the usage indicates the importance of the consideration of the evidence adduced under Section 244 Cr.P.C., so as to ascertain whether there is a prima facie case or not. If the charges framed against the accused are groundless then the accused will be discharged under Section 245(1) Cr.P.C. If the evidence adduced shows a prima facie case against the accused, charges will be framed under Section 246(1) Cr.P.C.

Further, the case of Ajoy Kumar Ghosh v State of Jharkhand gave clarity on the difference between Sections 245(1) and 245(2) Cr.P.C.. Section 245(1) uses the evidence led by the Prosecution to determine whether the evidence, if unrebutted, would warrant a conviction. If there isn’t any incriminating evidence, then the Magistrate discharges the accused under Section 245(1) Cr.P.C.

The situation is a bit different under Section 245(2). It is mentioned in the section that the Magistrate is empowered to discharge the accused at any previous stage of the case—even before the evidence is led. The Magistrate, in order to discharge, needs to come to the conclusion that the charge is groundless. The decision taken in this regard can be taken before the accused appears or is made to appear before the Court, and even before the evidence is led under Section 244. The words “at any previous stage of the case” indicate the aforementioned possibilities.

“At any previous stage of the case” and events leading up to Discharge

It begs the question what do the words “at any previous stage of the case” signify. The previous stage is the stage before the evidence of the Prosecution under Section 244 or any stage even prior to that. The stages falling between Sections 200 and 204 of the Criminal Procedure Code can be termed as “any previous stage”.

Section 200 Cr.P.C. empowers the Magistrate to examine the complainant or other witnesses that are present.

Note: The Examination is not necessary if:

  1. When a public servant makes a complaint in the discharge of their duties;
  2. When the Court has made the complaint;
  3. When the Magistrate acts under Section 192 Cr.P.C. and makes over a case for trial to another Magistrate.

Section 201 deals with the transfer of the case to a competent court by the Magistrate—they can either direct the complaint or the complainant to a proper court.

Section 202 deals with the postponement of the issue of process and is best understood through the language of the section itself.

Overview of the process

  1. Under Section 244, as the accused makes an appearance, the Magistrate hears the Prosecution and considers every evidence in the Prosecution’s support. They may also issue summons to the witnesses on an application made by the Prosecution.
  2. After that, under Section 245(1) the Magistrate considers the evidence adduced under Section 244 and if the Magistrate has no reason to believe that no case is made out against the accused then the process of discharge is preferred.
  3. The situation under Section 245(2) is discussed above in sufficient detail. Regardless, the significance cannot be underscored enough.
  4. Finally, if the Magistrate finds that there is a prima facie case against the accused and a need for trial arises, in that case, the charges will be framed under Section 246(1).

Points to ponder

  1. A discharge is different from an acquittal. Any person discharged is not acquitted per se. If after discharge any new evidence comes up, the person can again be brought before a court of law.
  2. After the powers under Section 246(1) are exhausted, i.e. the framing of charges is complete, there can be no discharge.
  3. In cases exclusively triable by a sessions court, the Magistrate cannot discharge an accused, that can only be done the competent trial court.
  4. If at the framing of charge, the accused produces evidence that might change the course of proceedings, then the Court has to consider the same. The Magistrate has to give the accused a fair chance to be heard.
  5. The process of discharge in a sessions trial also entails the consideration of evidence after hearing both sides and deciding whether there is a prima facie case or not.

Frequently Asked Questions

  1. What is the procedure for discharge under Cr.P.C.?
  2. What are the powers of a magistrate with regard to discharge under Cr.P.C.?
  3. Can there be a discharge post framing of charges?
  4. What are the ingredients of discharge?


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