When can an accused be discharged from Criminal liability?

By Dhruva Vig


The Indian legal system has been accoutred with the provision of discharging any person from criminal liability by way of Discharge Application, which is the remedy granted to the person who has been maliciously charged. On the pretext of such allegations, which have been made out against any individual or party are ersatz, the Law provides for filing a discharge application under the provisions of Code of Criminal Procedure (hereinafter as Cr.P.C.).

In the event that the evidence so provided before the Court is not sufficient to satisfy the offence so alleged, and in the absence of any prima facie case against him, he is entitled to be discharged.


Under the Indian Evidence Act, 1872 the term ‘Disproved’ has provided in the interpretation Clause, which says that “a fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

On the contrary, under the Evidence Act, the definition of term ‘Proved’ states that “a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”

The term ‘Not Proved’ shall have the following meaning, “a fact is said not to be proved when it is neither proved nor disproved.”

Meaning of Discharge under Cr.P.C.

The term “discharge” has been used under various sections of CrPC. It has been used under Sections 398, 227, 239, 245 and 249 CrPC.

In simpler terms, it can be said that discharge means refusing to proceed further after issue of process.[1] However, none of these sections deal with the issue of summons case. It has been provided clearly that summons case means cases in which the punishment is of maximum two years is made out.[2]

Summons case can be tried either by instituting a complainant case by any individual, and secondly, by lodging of a FIR by the police in which State becomes a party as such instances are endangering public tranquillity.

In cases of any complaint made, after the completion of process under Sections 200 and 202, the Magistrate either issues process under Section 204 CrPC or dismisses the case under Section 203 CrPC . In instances of police cases, the Court issues process when cognizance is completed.

When a notice or summon has been served to an accused, then in such cases, a time period is fixed by the court for explanation of substance of accusation under Section 251 CrPC.

Hence, once a notice or a summon has been served to an accused party, he/she shall be asked as to whether they plead guilty or not. In case if the accused does not plead guilty, then the Magistrate is required to take note of the defence which the accused pleads.

Classification of Criminal Cases

The two major classifications of criminal cases under the Code of Criminal Procedure can be classifies into the following heads:

  1. Cases instituted on the basis of a police report (Sections 238­-243).
  2. Cases instituted otherwise than on police report based on the complaint (Sections 244­-247).

Another classification can be made on the basis of types of trial procedures. There are four types of such trial procedures provided under Cr.P.C., these are:

  1. Summary trials (Sections 260-­265),
  2. Trial of summons cases by Magistrates (Sections 251-­259),
  3. Trial of warrant cases by Magistrates (Sections 238­-250), and
  4. Trial before a Court of Sessions (Sections 225­-237).

Discharge of accused in warrant cases on the basis of a police report.

Under ordinary course of procedural law, the police after the completion of its due investigation, proceeds to file the final report/charge sheet under Section 173 of the Cr.P.C.

From that point onwards, a criminal trial against the accused is commenced by the concerned Court of competent authority.

However, Sections 239 and 227 of Cr.P.C, have provided that before any charges are framed against an accused person, he/she may be discharged owing to certain conditions provided in the Code.

Section 239 of the Code of Criminal Procedure states when accused shall be discharged.

If, upon due consideration of the police report and all the documents sent under Section 173 along with examination of the accused, if any, as Magistrate thinks obligatory and after hearing prosecution as well as accused, the Magistrate considers the charge to be groundless against the accused, he shall discharge the accused and also record the reasons for doing so.

Essential elements for Discharge:

The Court must consider the Charge sheet and documents appended thereto by the Police under Section 173, Cr.P.C by taking of the following essentials:

  1. The Magistrate may, if he deems fit, examine the accused.
  2. Thereafter, the arguments of both the Prosecution and the Accused should be heard (audi alteram partem).
  3. In the instance where the grounds against the accused are found to be baseless, upon the condition that no evidence is present against the accused, the Court shall consider that there is no prima facie case against the accused and must be discharged.

If all the above conditions are fulfilled, then the Accused shall be discharged.

When accused shall be discharged in Sessions trial:

Under Section 227 of the Cr.P.C., it clearly states that if the Judge considers that there are no sufficient grounds for proceeding against the accused, only after hearing upon the submissions of the prosecution and the accused and after due consideration of the record of the case along with the documents submitted therewith, the Magistrate shall discharge the accused and record reasons as well for such discharge.

Mandatory cases where Sessions Judge held bound to discharge:

  1. Where he is precluded from proceeding because of a prior judgment of High Court.
  2. Where the prosecution is clearly barred by limitation.
  3. Where the evidence produced before the court is not sufficient.
  4. Where there are no legal grounds for proceeding trial against the accused, or
  5. Where no sanction has been obtained.

Discharge in Warrant case:

Section 239 of Cr.P.C lays down the provision under which a Magistrate may discharge the accused in a ‘Warrant Case’:

  1. The Police report and the documents filed under Section 173 of Cr.P.C. before the Court.
  2. Opportunity to be heard must be given to both prosecution and the accused. The Court has to follow principles of natural justice.
  3. Magistrate must feel that the allegations are baseless and hold no ground.

Discharge of accused under Warrant Cases instituted upon Complaints:

Section 245 of Cr.P.C. deals with issue of ‘When accused shall be discharged’. Under Clause (1) of the Section, the Magistrate must consider the evidence so adduced before the Court under Section 244 of Cr.P.C, and if the Magistrate is of the opinion that no case has been made out against the accused, i.e., if unrebutted it would not warrant a conviction, then he shall discharge the accused from such trial under section 245(1) Cr.P.C.

In other instances, the Magistrate has to frame a charge under Section 246(1) of Cr.P.C. Under Section 245(2) of Cr.P.C., at any previous stage of the trial, if the charge is groundless, the Magistrate may discharge the accused.

Likewise, at any previous stage of the trial, if there stands a ground for presuming that the accused has committed an offence, the Magistrate must frame the charge accordingly under the provisions of the Code.


Under the Code of Criminal Procedure, 1973, several provisions have been given in regard to discharge of a person from criminal liability. These are: –

Section 227 talks about ‘Discharge’ which says that If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

Section 239 talks about the provision when accused shall be discharged.

It states that “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.

Section 245 deals with the instance when an accused shall be discharged. The section says that:
(1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.


Palwinder Singh Vs. Balwinder Singh[3]

The jurisdiction of Sessions Judge at the time of discharge is very limited. Charges can also be framed on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the court at that point of time.

Sajjan Kumar v. CBI[4]

At the stage of framing of Charge under Section 228 of Cr.P.C or while considering the discharge petition filed under Section 227 of Cr.P.C, it is not for the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability etc; The evidentiary value and its credibility and veracity has to be considered at the stage of trial.

State of Tamil Nadu v. N. Suresh Rajan[5]

At the Stage of consideration of an application for discharge, Court has to proceed with an assumption that the materials brought on record by prosecution are true and to evaluate the said materials and documents with a view to find out whether the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the offence.

Satish Mehra v. Delhi Administration and Anr.[6]

The Hon’ble Supreme Court held that if the accused produces any convincing material at the stage framing of charge which might drastically affect the very sustainability of the case, it is unfair to suggest that no such material should be considered into by the court at that stage.

Tapati Bag v. Patipaban Ghosh[7]

It was held that if the Court considers that there are no sufficient grounds for proceeding against the accused, the accused has to be discharged, but if the Court is of the opinion after such consideration that there is ground for presuming that the accused has committed the offence which is exclusively triable by the Court of Session then the charge against the accused must be framed.

Once the charges are framed, the accused is put to trial and thereafter either acquitted or convicted, but he cannot be discharged. Once charges are framed under Section 228 of the code, there is no back gear for discharging the accused under Section 227 of the code. Discharge post framing of charge is not viewed in Cr.P.C.

Sanjay Gandhi vs Union of India[8]

It was held that there is no such provision that permits the Magistrate to discharge the accused. Discharge order can be given only by a trial court and in respect of the offences exclusively triable by a court of session, the court of the Judicial Magistrate is not the trial Court.

Ajoy Kumar Ghose v. State of Jharkhand[9]

Discharge under S. 245(1) on ground that no case had been made out against the accused and discharge under S. 245(2) on the ground that charge is groundless was argued.

The Court held that the term “previous stage” under S. 245(2) is before prosecution evidence under S. 244(1) is completed, or at any stage prior to that, namely, the stages prescribed in Ss. 200 to 204 Cr.P.C. Magistrate can therefore discharge accused after recording reasons, even at stage when accused appears in response to summons or warrant, but no prosecution evidence had been led to the same.

R.S.Mishra Vs. State of Orissa[10]

Victim has right to be heard during Discharge. Normally a victim is not participating in discharge proceedings under Section 227 of Cr.P.C, if in a case wherein the victim is not sufficiently reported by the prosecution and in cases where the interest of the victim adequately protected, there is nothing wrong on the part of the victim in stepping in with a request for being heard. In such cases the version of the victim should not remain unheard.


In criminal law, Blackstone’s ratio has been considered as the cornerstone of modern-day jurisprudence. It is the idea that, “it is better that ten guilty persons escape than that one innocent suffer[11], which has been expressed by the English jurist William Blackstone in his seminal work Commentaries on the Laws of England, published in the 1760s.

The law must work on the basic guiding principle that an innocent man should not be convicted for a crime which he did not commit. If such underlying principle is not followed, the public may lose the faith and respect for its judicial machinery.

The Courts must endeavour to deal with any law or statute relating to procedure and evidence, which require some sort of interpretation, that the interpretation is made out usually in favour of the accused, which is, upholding the presumption of innocence of the accused.

Principles of natural justice have been the long-standing canons in the field of law, which serve to provide an equitable opportunity to both sides of the aisle.

It is thus, imperative upon Courts, that justice is carried out equitably and impartially, whilst striking a balance with the law of the land.


Discharge under CrPC

Sessions Trial

  1. Sohan Lal v. State of Rajasthan, (1990) 4 SCC 580, 592-593, para 30
  2. Sections 2(w) and 2(x) of the Criminal Procedure Code, 1973
  3. Palwinder Singh Vs. Balwinder Singh, 2009(3) SCC 850
  4. Sajjan Kumar v. CBI, 2010 (9) SCC 368
  5. State of Tamil Nadu v. N. Suresh Rajan, 2014 (11) SCC 709
  6. Satish Mehra v. Delhi Administration and Anr., (1996) 9 SCC 766
  7. Tapati Bag v. Patipaban Ghosh, 1993 Cr.L.J 3932 (Cal.)
  8. Sanjay Gandhi vs Union of India, AIR 1978 SC 514
  9. Ajoy Kumar Ghose v. State of Jharkhand, (2009) 14 SCC 115 : (2010) 1 SCC (Cri) 1301 : AIR 2009 SC 2282
  10. R.S.Mishra Vs. State of Orissa, AIR 2011 SC 1103
  11. “Commentaries on the laws of England”. J.B. Lippincott Co., Philadelphia, 1893.

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