The ninth part of our explainer series on criminal law deals with the meaning, purpose and essential ingredients of discharge in a Criminal Trial, and explains how discharge is different from acquittal under criminal law.

Previous parts: FIR | Refusal of police to register an FIR | Police investigation | Police officers’ power to search without search warrants | Default bail | Closure report and police case diary | Completion of investigation Charge


THE term ‘discharge’ appears under various sections of the Code of Criminal Procedure, 1973 [CrPC] such as Sections 227239245249 and 398.

‘Discharge’ is not defined under the Code of Criminal Procedure, 1973 and therefore reference is made to Black’s Law Dictionary, which defines discharge as “[t]he opposite of charge; to release, liberate, annul, unburden, disencumber.” In layman’s language, the provision of discharge comes into picture after an investigation into a crime is completed by the prosecuting agency and chargesheet under Section 173 of the CrPC or a complaint under Section 190 of the CrPC, as the case may be, is filed against the accused persons.

Discharge is a stage that comes after the chargesheet is filed, but before the charge is framed by the concerned court against the accused persons. It is a remedy that is granted to the accused person who has been maliciously chargesheeted or against whom there is insufficient evidence to make out the offence as alleged.

Procedure for seeking discharge

In order to avail this remedy, the accused needs to prefer an application before the Magistrate Court or a Court of Sessions, depending upon the nature of offence (whether it is triable by a Magistrate or exclusively by a Court of Sessions). After filing of the application, if the court is of the view that on the basis of the prima facie perusal of the documents and evidence on record, the necessary ingredients of the offence against the accused are not made out, the court shall pass an order discharging the accused person and does not proceed to the next stage of Criminal Trial, that is, framing of charge against such accused person who has been discharged.

In case there are multiple accused persons and one or more of such accused persons are discharged, the court shall proceed to frame charge against such other accused person(s) who have not been discharged, and the case shall then proceed only against such accused person(s).

Section 227 of the CrPC deals with the power of the Court of Sessions to discharge an accused person, and section 239 of the CrPC deals with the power of the Magistrate to discharge the accused person. In either of the case, the Magistrate/ Sessions Court is bound to record reasons for passing an order or discharge or otherwise. An unreasoned order or a mechanical order rejecting a discharge application is liable to be set aside t a higher court by way of revision. The power of revision is available only with the Sessions Court and the High Court.

When does a court discharge an accused?

There is no straitjacket formula for deciding whether the accused is to be discharged. The facts of each case differ, and it is in that backdrop the Court has to apply its judicious mind and then decide whether a case is made out for discharging the accused. In the event the judge is convinced that the evidence on record gives rise to ‘mere suspicion’ and not ‘grave suspicion’, then the court would be entitled to exercise the power to discharge the accused person.

It is important to note that at the stage of discharge, the court cannot go into a roving enquiry and conduct a mini trial to arrive at a decision whether the accused, at the end of the trial, shall be acquitted or not. There is a thin line between considering the entire piece of evidence (sifting through evidence) to arrive at a prima facie finding as against conducting a roving enquiry and meticulously considering the entire evidence, which amounts to a mini-trial.

For instance, in a case of alleged offence under the Narcotic Drugs and Psychotropic Substances Act, if the report of Chemical Analysis negates the presence of any narcotic drug or psychotropic substance within the body of the accused, such is a fit case for discharge. However, a case where prima facie recovery of contraband is shown, supported with a report of Chemical Analysis, such will not be a fit case for discharge, although there may be evidence to raise a suspicion on recovery for want of compliance of mandatory provisions. This suspicion may be helpful to an accused person to get an order of bail, but not discharge.

Discharge not acquittal

An important point to be borne in mind is that discharge does not amount to acquittal.

It simply means that an accused is discharged due to non-availability of the materials against them for proceeding ahead with the trial, and that in such a case, trial would be a futile exercise.

However, an order of acquittal can be obtained only after conducting a full-fledged trial.

Further, if the court is of the view that there is prima facie evidence against the accused to prosecute them, the court may reject the discharge application filed by the accused and proceed with the framing of the charge, and thereafter conduct the entire trial, which ultimately leads to acquittal or conviction of the accused.

Thus, discharge is an important provision, which is provided to the accused person in order to avoid subjecting the accused to judicial scrutiny without any cogent evidence to do so, and to save the accused and the court of the trouble to conduct a lengthy process of trial.

In 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 and the powers of the court to discharge the accused person.

Key points of difference between acquittal and discharge

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