UNDERSTANDING THE MEANING OF DISCHARGE UNDER SECTION 227 OF CRIMINAL PROCEDURE CODE, 1973?

Guest Post by Advocate Dinesh Singh Chauhan,

High Court of Judicature, J&K & Ladakh, Jammu

Introduction

Discharge in legal criminal parlance is defined in Black Law Dictionary as “The opposite of charge; hence it would mean to release; liberate; annul; unburden; disencumber” In layman’s language, the provisions of discharge under Sections 227 and 239 of the Criminal Procedure Code, 1973 comes into the picture after investigation in a crime is complete by the prosecution and the charge-sheet is filed against the accused.

Under the Code of Criminal Procedure, 1973, the Discharge Application is the remedy that is granted to the person who has been maliciously charge-sheeted. If the allegations which have been made against him are false, this Code provides the provisions for filing a discharge application. If the evidence given before the Court is not sufficient to satisfy the offence and in the absence of any prima facie case against him, he is entitled to be discharged.

Unless we understand the ground for discharging an accused we would not be able to appreciate grounds for framing a charge against him. To understand the topic under discussion three legal questions arise;

(1) What are the various grounds on which an accused can be discharged or charged?;

(2) What is the standard of scrutiny for discharging an accused or framing a charge against him?;

(3) What is the relevant material to determine the question of discharge or framing charge?

The purpose of Sections 227 and 228 of the Code of Criminal Procedure, 1973 is to ensure that the Court should be satisfied that the accusations made against the accused person is not frivolous and there is some material for proceeding against him [“Richard Winn Harcuss Vs State of West Bengal & Ors.”, 1975 Cr. L. J 1256 (DB)].

Scope of Section 227 of Code of Criminal Procedure, 1973

The purpose of framing a charge against an accused person is to acquaint him with the incriminating facts and circumstances proposed to be proved against him in the trial to follow. After enforcement of the new Code, known as Act No. 2 of 1974, an accused can be discharged only by the Court of Sessions. Section 227 statutorily binds the trial Judge to discharge an accused in cases exclusively triable by Court of Sessions after making compliance of under-mentioned four mandatory requirements;

(1) Consideration of the record of the case and the documents submitted therewith;

(2) Hearing the submissions of the accused and the prosecution in that behalf;

(3) Consideration that there is no ground for proceeding against the accused;

(4) Recording reasons for discharge.

A “grave suspicion about the commission of the crime by the accused” should exist before a charge can be framed. The Judge is not supposed to sift through the evidence. In the latter, a limited sifting of the evidence is permissible. Therefore, when the phrase “prima facie evidence” is used, it is used for examination at two different stages of the criminal process. One has to realize that the trial progresses through different stages. Hence, appreciation of evidence has to be of different quality. While at the stage of cognizance it is mere “suspicion”, at the stage of framing of charge, it is “grave suspicion”, and the end of the trial, it is a critical analysis and a meticulous examination of the entire evidence produced by prosecution and the accused. Therefore, the appreciation of the evidence at the stage of framing of charge is at micro level; at the end of the trial, it is at macro level. Hence, the mental level of appreciation changes at every stage of the criminal process; from a cursory appreciation to a critical level.

The law on the subject is now well settled that at Sections 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may 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. Therefore, at the stage of framing of charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to leads to a conviction.

Parameters Governing Exercise of Jurisdiction

The parameters which govern the exercise of this jurisdiction have found expression in several decisions of the Supreme Court. The Supreme Court in [“State of Karnataka Lokayukta Vs. M. R. Hiremath”, 2019 (7) SCC 515] have observed that at the stage of considering an application for discharge, the Court must proceed on the assumption that the material which has been brought on record by the prosecution should be true and the Court should evaluate the material in order to determine whether the facts emerging from the material, taken on its face value discloses the existence of the ingredients necessary to constitute the offence.

In another case of [“State of Tamil Nadu Vs. N. Suresh Rajan & Ors.”, 2014 (11) SCC 709] adverting to the earlier decisions on the subject of discharge, the Supreme Court observed that at the stage of discharge, the probative value of the materials has to be gone into and the Court is not expected to go deep into the matter. Whereas what is needed to be considered is whether there is a ground for convicting the accused has been made out. To put it differently, if the Court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge but for the conviction of the accused the Court should come to the conclusion that the accused has committed the offence. The Court further observed in this case that the law does not permit a mini trial at the stage of discharge.

On a different footing, in [“M. E. Shivalingamurthy Vs. Central Bureau of Investigation”, 2002 (2) SCC 135], the Supreme Court observed that the defense of accused cannot be looked into at the stage when the accused seeks to be discharged under Section 227 of the Criminal Procedure Code, 1973.  The defense of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 of the Code of Criminal Procedure, 1973. The expression, “the record of the case”, used in under Section 227 of the Code of Criminal Procedure, 1973, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge.  At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the Police.

Legal Position vis-a-vis Judgments passed by Supreme Court of India

The Hon’ble Supreme Court in [“Union of India Vs. Prafulla Kumar Samal & Anr”, (1979) 3 SCC 4 laid down the following principles:

“10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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.

2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” (emphasis supplied)”

In [“State of Orissa Vs. Debendra Nath Padhi”, (2005) 1 SCC 568, the Supreme Court after comparing Section 207 in the old Code of 1898 and Section 227 which was introduced in the new Cr. P. C observed as under:

“9. Further, the scheme of the Code when examined in the light of the provisions of the old Code of 1898, makes the position more clear. In the old Code, there was no provision similar to Section 227. Section 227 was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements. If the evidence even if fully accepted cannot show that the accused committed the offence, the accused deserves to be discharged. In the old Code, the procedure as contained in Sections 207 and 207-A was fairly lengthy. Section 207, inter alia, provided that the Magistrate, where the case is exclusively triable by a Court of Session in any proceedings instituted on a police report, shall follow the procedure specified in Section 207-A. Under Section 207-A in any proceeding instituted on a police report the Magistrate was required to hold inquiry in terms provided under sub-section (1), to take evidence as provided in sub-section (4), the accused could cross-examine and the prosecution could re-examine the witnesses as provided in sub-section (5), discharge the accused if in the opinion of the Magistrate the evidence and documents disclosed no grounds for committing him for trial, as provided in sub-section (6) and to commit the accused for trial after framing of charge as provided in sub-section (7), summon the witnesses of the accused to appear before the court to which he has been committed as provided in sub-section (11) and send the record of the inquiry and any weapon or other thing which is to be produced in evidence, to the Court of Session as provided in sub-section (14). The aforesaid Sections 207 and 207-A have been omitted from the Code and a new Section 209 enacted on the recommendation of the Law Commission contained in its 41st Report. It was realised that the commitment inquiry under the old Code was resulting in inordinate delay and served no useful purpose. That inquiry has, therefore, been dispensed with in the Code with the object of expeditious disposal of cases. Instead of the committal Magistrate framing the charge, it is now to be framed by the Court of Session under Section 228 in case the accused is not discharged under Section 227. This change brought out in the Code is also required to be kept in view while determining the question. Under the Code, the evidence can be taken only after framing of charge.” (emphasis supplied)”

In [“P. Vijayan Vs. State of Kerala & Anr.”, (2010) 2 SCC 398, the Supreme Court took note of the Judgment in Union of India Vs. Prafulla Kumar Samal (supra) and after quoting Section 227 Cr. P. C observed as under:

“10. Before considering the merits of the claim of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure, 1973, which reads as under:

“227. Discharge.—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.”

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 and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.

11.At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” (emphasis supplied)

In [“Dilawar Balu Kurane Vs. State of Maharashtra, (2002) 2 SCC 135, the Supreme Court after relying on Union of India Vs. Prafulla Kumar Samal (supra) observed as under:##

“12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section 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; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4:1979 SCC (Cri) 609])”

Similarly, [“State of M. P. Vs S. B. Johari & Ors.”, (2000) 2 SCC 57, the Supreme Court has held that charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence and in such case, there would be no sufficient ground for proceeding with the trial.

The Apex Court, in [“Dipakbhai Jagdishchandra Patel Vs. State of Gujarat & Anr.”, (2019) 16 SCC 547 opined as follows :

“At the stage of framing the charge in accordance with the principles which have been laid down by the Court, what the court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon the prosecution. The sifting is not to be meticulous in the sense the court dons the mantle of the trial judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion, must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.””

Conclusion

Though guidelines as to the scope of inquiry for the purpose of discharging of an accused are contained in Section 227 of Code of Criminal Procedure, 1973, it provides that the “Judge shall discharge when he considers that there is no sufficient ground for putting the accused on trial”. It is in the trial that the guilt or innocence of the accused will be determined and not at the time of framing of charge. Therefore, the Court need not undertake an elaborate inquiry. The power conferred by Section 227 to discharge an accused as designed to prevent harassment to an innocent person by the arduous trial or the ordeal of prosecution. The power has been conferred to the Sessions Judge to bring to his knowledge and experience in criminal trials of the Sessions Judge after having the parties frames a charge and also make an order in support thereof, the law must be allowed to take its own course. Self restraint on the part of the High Court should be the rule unless there is glaring injustice staring the Court in its face.

Under the present Judicial system, the scope of discharge is very limited. At the stage of framing of charge, the prosecution merely needs to display a prima facie case qua the accused from the material available on record and trial may thereafter commence. However, at the stage of deciding a Discharge Application, the accused may opt to refer to and rely upon sterling quality evidence to seek his discharge, and if, on the basis of such unimpeachable record, the Judge is satisfied on the aforesaid legal precepts that the accused is entitled to an absolute exoneration from the alleged crime, it is well within the law for the accused to be discharged.

 

Written and contributed by

Dinesh Singh Chauhan

Advocate

High Court of Judicature, J&K & Ladakh, Jammu

chauhanjmu@gmail.com

dschau08@yahoo.com