Facing a trial is an ordeal: Advocate S Balan speaks on ‘The Law on Discharge’ [Watch Video]

Lawyers Institute for Empowerment recently held an interactive online class with Advocate S. Balan on ‘The Law on Discharge’. During the session, Criminal Advocate S Balan spoke on the various aspects pertaining to the framing of charges and discharge.

Adv. S Balan started off the lecture by listing down the three pairs of sections of the Code of Criminal Procedure, 1973 (hereinafter, referred to as CrPC) which deal with ‘framing of charges’ and ‘discharge’ as under:

Section 227 and Section 228, Chapter XVIII.
Section 239 and Section 240, Chapter XIX Part A.
Section 244 and Section 245, Chapter XIX Part B.

He further stressed on the importance of the language used in these sections by illustrating how the usage of the expression “after hearing the accused and the prosecution” clearly signifies the absence of hearing of the complainant.

Speaking on the variation in the language in the said sections, he observed:

“Despite variations in the languages used in these three pairs of sections, it ultimately converges into a single conclusion, namely, whether or not a prima facie case is made out to begin with the trial”

Describing the process, he explained how the determination of whether there is sufficient material or ground to proceed further, or to discharge the accused, arises once the charge sheet is filed under Section 173(2) of the CrPC along with recovery of documents and material objects under Section 173(5) of the CrPC.

He then discussed the grounds for discharge as follows:

Insufficient evidence or insufficient grounds.
No legal grounds to proceed further.
When a sanction is defective.
Limitation; when a charge sheet filed beyond the period of limitation.
By way of any order passed by the higher courts, the trial court precluded or prohibited from framing charges.

Out of the aforementioned, he placed emphasis on “no prima facie case, evidence not sufficient and no legal grounds to proceed”.

Following this, he proceeded to elucidate upon certain questions which arise in matters dealing with ‘framing of charges’ and ‘discharge’ by relying on some judgments.

Discussing the powers of the trial court at the stage of framing charges, he brought attention to the landmark judgment of Union Of India vs Prafulla Kumar Samal & Anr[i], stating that the “language used in the judgment is to be kept at the fingertips.”

Adv S Balan then distinguished between the Courts with respect to their powers to frame charges and discharge in the following manner:

Table of Contents

Sessions Court

Deals with special acts.
Constituted under Section 6 of the CrPC.
Framing of charges and discharge governed by S.227 and S.228 of the CrPC, whether it is Sessions Court or ‘deemed Sessions Court’.

Magistrate Court

For cases instituted on a police report, framing of charges and discharge governed by S.239 and S.240 of the CrPC.
For cases instituted otherwise than on a police report, discharge and framing of charges governed by S.244 and S.245 of the CrPC.

In addition, he illustrated the powers bestowed upon the trial judge as under:

The Court has undoubted power to sift and weigh the evidence to determine whether or not a prima facie case is made out.
If after sifting and weighing, there is ‘some’ suspicion but the suspicion is not ‘grave’, the court is well within its power to discharge the accused.
If there is ‘grave suspicion’ based on evidence under S.173(2) and S.173(5) of the CrPC, and the accused is unable to reason out, the court is within its power to frame charges.
If two views are possible based on the material submitted by the investigating agency, then you can buttress that the views in favour of the accused be taken into consideration.

On the subject of challenging the cognizance of the matter, he stated that the order of cognizance can be challenged under S.482 or S.397 of the CrPC or even Article 226 of the Constitution of India. However, the scope is very, very limited.

Further, he observed the following:

“It is always better to step into S.227 or S.239 [of the CrPC] as there is a better chance because the accused has more scope and opportunity to demonstrate before the trial court that the charge cannot be framed because the material produced indicates only some suspicion.”

He further explained that in cases initiated otherwise than on a police report, there must be evidence before charges are framed. The defence counsel can cross-examine and ask for discharge, “even if the evidence is not rebutted or unchallenged by way of cross-examination and there is no prospectus of conviction.”

He then stated that in a summons case, there is no discharge, only a plea. To overcome this, one can move the court in a summons case under S.259 of the CrPC with a prayer to convert the summons case into a warrant case. Once the conversion is successful, framing of charges and discharge under Sections 244 and 245 will be applicable.

To support these statements, he underlined the importance of the judgments in Leo Granex vs Pavillion Granites & Ors.[ii] and Mahendra Kumar vs Gangamma B[iii]

Following this, Adv. S Balan expounded that in a warrant trial on a cognizable offence, it is possible for the defence counsel to answer the charge in the absence of the accused by relying on the judgment of State By Bangarpet Police vs Ambati Murali Mohan Rao & Anr.[iv]

He further clarified that an exemption can be given to the accused by allowing his counsel to answer for the statement under S.313 of the CrPC by relying on Chandu Lal Chandraker vs Puran Mal And Anr.[v] and Devanti Devi And Ors. vs State Of Bihar.[vi]

“It is possible for the defence counsel to move an application either to exempt him [the accused] from answering charge in a cognizable offence, warrant trial or a sessions trial.”

He further elaborated upon the fact the once the charges are framed, the question of discharge does not arise. However, in Baburao Hari Pawar vs State of Maharashtra,[vii] a discharge order was passed post the framing of charges. Commenting on this, Adv. S. Balan observed the following:

“Hear Before Charge (HBC); there is a stage for hear before charge. For any reason, if the trial judge fails to hear the argument of the accused or his counsel before framing the charge in HBC stage, even after framing the charge, the defence counsel can make an application on the ground that prior to framing of the charge, the defence counsel was not given a right of audience.”

Next, he elucidated on whether to make an application or argue in the following words:

“[It is] Not necessary that we should make an application. Right of audience, opportunity of being heard is the legal right of an accused. Therefore, that right cannot be denied even if the application for discharge is not filed. But, still, it is always better that the counsel reads the entire charge sheet, makes out a ground that there are no materials prima facie to proceed further. Then, the chance of getting a discharge order is possible.”

To make out a ground, he examined the existence of any ‘connecting material’ that would connect the accused to the crime. He elaborated upon this point by means of several examples and stated the following:

“The role of the defence advocate is to fit this circumstance that there is no connection between the accused and the incident. Then, the circumstance is a weapon… if there is some lacuna in that (facts of the case), it could also be [used as] one circumstance at the stage of framing charges.”

Further elaborating this point, he stated the following:

“If there is no material on record, either in the form of S.161 statement or confessional statement or recovery or discovery of a fact or discovery of an object; if all these objects are articulated and brought to the record, indicating that there is no prima facie material, if the defence counsel is able to disconnect these, then there is a chance of discharge.”

He also shed light on the fact that it is possible for the defence counsel to produce any document available in his possession that can be pressed into service at the time of framing charges, stating that the charge or discharge should “revolve around the S.161 statement, S.164 statement, the documents collected during the course of the investigation, and also the material object’s seizure.”

Illuminating the aspect of hearsay evidence, he made the following observation:

“If the prosecution depends on hearsay evidence, connecting the accused with the crime, then if we (the defence) could demonstrate that it is res gestea, hearsay evidence, then that creates only some suspicion. it cannot be grave suspicion because it is inadmissible in evidence. [This] can be brought on record. [under] Sections 6, 7, and 8 of the Indian Evidence Act, 1872(IEA)- whichever is irrelevant, whichever is hearsay, that cannot be the connecting material at the stage of framing charges…So if we are able to demonstrate that this all is inadmissible under law, it also becomes a point for discharge.”

He further pointed out the confession, voluntary statement of the accused is inadmissible and can only be used for the ‘discovery of fact’. He also underlined the importance of demonstrating before the court that there is only ‘some suspicion’ and not ‘grave suspicion’. He further explained that the recovery of an object based on a voluntary statement under S.25 of the IEA and discovery of an object based on the confession under S.27 is admissible as evidence.

Stressing on the powers of the Courts to frame charges and discharge an accused, Adv. S Balan made the following remarks:

“The Sessions Court or the Magistrate’s Court is not [an] empty formality. it is a very valuable right of the accused at the stage of framing charges, otherwise he has to face the ordeal of the trial. To overcome that, the defence counsel should be very meticulous in appreciating all the material available on record and demonstrate before the honourable Court, with a number of decisions, that under these circumstances, the accused should be discharged.”

He winded up the lecture by stating the following:

“In all the criminal cases, the defence counsel should analyse and divide the case into various circumstances and if there are ten circumstances, then how the investigating agency connects one circumstance to the accused, second circumstance, third circumstance; [in] all the ten circumstances, there must be a connecting point”

The session was concluded with a Question & Answer session

QnA

Sections 6, 7 and 8 of the Evidence Act, to what extent they are relevant while arguing?
If it is hearsay evidence, it is not relevant.
What if the judge does not allow all these things saying there are merits and demerits?
The Court has the power to sift and weigh. The duty is cast upon the judge to appreciate the materials placed on record, if the judge is not appreciating, then you need to challenge it in the upper court. You can place it on record in the form of an application so that the judge appreciates it. If not, you can approach the higher court.

[i] 1979 AIR 366

[ii] ILR 2009 Karnataka 4064

[iii] (2018) 5 KANT LJ 150

[iv] 1998 Criminal Law Journal, 4526

[v] AIR 1988 SC 2163

[vi] 1990 (1) BLJR 384

[vii] 1987 Cri. L.J. 584.