LEGAL PRINCIPLES APPLICABLE FOR SEEKING DISCHARGE

This issue is covered by various Judgments of Supreme Court; however, the Judgment of the Hon’ble Supreme Court in the case of  P. Vijayan v. State of Kerala and another (2010) 2 SCC 398, delivered by the bench of Justice P.Sathasivam and H.L. Dattu refers to all earlier decision and discern the following principles applicable for discharge:

  1. The Court held that where two views are possible, and one of them gives rise to doubt only as distinguished from grave suspicion, the Trial Court would be justified in ordering discharge the accused.
  2. The Trial Court is not a Post Office to frame the charge at the request of the Prosecution.
  3. The Judge has to find out whether or not there is sufficient ground for proceeding by shifting the Evidence. Evidence would ordinarily consist of the statements recorded by the Police during Investigation or the documents produced before the Court.
  4. The Trial Judge should not proceed with the Trial, where, even if the Evidence proposed to be tendered by the Prosecution, is accepted as a whole, without putting it to any challenge or rebuttal by the defence, fails to show that the accused has committed the offence.
  5. The accused can show before the Trail Court that the material placed by the Prosecution is not free from suspicion.
  6. The Trial Court should consider all probabilities, the full effect of Evidence and the documents submitted for the Court, and any other infirmities in the case. However, the Trial Court should refrain itself from making a roving inquiry onto the pros and cons.
  7. While framing the charges, the material produced by the Prosecution has to be accepted as real, and the probative value of such evidence on record cannot be gone into by the Court.
  8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.

Relevant Provision: Section 227 of The Code Of Criminal Procedure, 1973

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.

Judgments Relied:

  1. State of Bihar vs. Ramesh Singh (1977) 4 SCC 39
  2. Union of India vs. Prafulla Kumar Samal, (1979) 3 SCC 4
  3. Niranjan Singh K.S. Punjabi vs. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76
  4. Soma Chakravarty vs. State through CBI, (2007) 5 SCC 403
  5. Mohd. Khalid vs. State of West Bengal, (2002) 7 SCC 334.
  6. Hardeep Singh Sohal & others vs. State of Punjab, (2004) 11 SCC 612

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