Legal Provisions of Section 227 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Discharge:
This provision is intended to save the accused from prolonged harassment which is a necessary concomitant of a protracted trial. The Supreme Court in Union of India v. Prafulla Kumar Samal, has held that “the Judge is not a mere post office to frame a 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.
ADVERTISEMENTS:
The Supreme Court, in the case of Alamoham Das v. State of West Bengal, had also observed that “a Magistrate holding inquiry is not intended to act merely as a recording machine. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is his duty to discharge the accused, and if there is some evidence on which a conviction may reasonably be based, he must commit the case.”
This section requires that the Sessions Judge must record his reasons for his coming to the conclusion that there is no sufficient ground for proceeding against the accused. This would enable the superior Court to examine the correctness of the Session Court’s reason.
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The section enjoins wider discretion to the Court to determine whether there is sufficient ground to proceed against an accused before framing a charge against him. However, the section does not contemplate an elaborate enquiry to be made by the Court before framing a charge.
ADVERTISEMENTS:
It has only to consider whether or not sufficient ground exists for proceeding against the accused. If no such- ground exists, the accused will be discharged but if sufficient ground exists, he shall be put to trial.
The purpose of this section i.e. Section (as also 228) is to ensure that the accusation is not frivolous and there is some material for proceeding against the accused. At this stage, the Court is not to see whether sufficient ground for conviction of the accused exists or not. So also, the prosecution is not to establish at this stage that the trial is bound to end in conviction of the accused.
The Supreme Court in Union of India v. Prafulla Kumar, has laid the following principles with regard to the exercise of power of discharging the accused under Section 227 of the Code—
1. The Sessions Judge while considering the question of framing the charges has to sift and weigh the evidence for the limited purpose of finding out whether or not prima facie case against the accused has been made out.
ADVERTISEMENTS:
2. Where the material placed before the Court discloses 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 whether prima facie case exists or not would depend on the facts of each case and it is difficult to lay down a Universal rule in this regard.
4. In exercising his jurisdiction under Section 227, the Judge is not to act merely as a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of evidence and the documents placed before the Court and also any infirmities appearing in the case. This, however, does not mean that the judge should make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
The Supreme Court in P. Vijayan v. State of Kerala, held that Court is empowered to discharge the accused if two views were possible and one of them gave rise to suspicion only, as distinguished from grave suspicion. It is not necessary for the Court to consider at this stage whether trial will end in conviction or acquittal.
Some Relevant Cases:
Where owner of an open field was implicated solely because some opium was recovered from his field, the High Court set aside the order of framing of charge and directed the Court below to discharge the accused (i.e. the owner).
In Nilofar v. State of Gujarat, accused persons were charged under Sections 6 and 9 of the Immoral Traffic (Prevention) Act, 1956. The statement of victim girls was that accused persons brought them to particular place where they were to be lured for prostitution. The victim girls were kept at some place after providing them boarding, lodging and other facilities, only for the purpose of being offered to willing customer’s for money.
The Court held that it amounted to ‘detention’ within the meaning of Section 6 of the Act. It was further held that even the charges could be framed when material produced by prosecution indicates strong suspicion about complicity of accused with the crime. Therefore, under these circumstances, the accused could not be discharged.
In the case of Sayara Bano v. State of Jharkhand, the offence alleged against the accused was of kidnapping or inducing or enticing informant’s minor daughter. The material collected during investigation and case diary etc. was not suggestive that accused persons were involved in hatching conspiracy in committing the alleged crime. The accused was, therefore, entitled to be discharged as no case was made out showing his involvement in the offence alleged against him.
Where in a dowry death case, the father of the victim had lodged an FIR alleging demand of dowry and torture and the witnesses also revealed estranged relationship between the husband and the wife, it was held that the judge rightly refused to discharge the accused as there existed a strong suspicion against the accused husband and therefore framing of the charge against him was proper and justified.
In the case of Kishan Singh v. State of Rajasthan, the Special Judge, Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, dropped the charge of attempt to murder under Section 307, IPC and discharged the accused. But the High Court of Rajasthan set aside the order of discharge in view of the existence of prima facie case against the accused as was apparent from the injuries on the victim and the statements of eye-witnesses.
In Bhartendu Singh v. State of Jharkhand, there was allegation of criminal conspiracy and attempt to murder against two petitioners. For hatching criminal conspiracy actual presence of accused at the place of occurrence is not at all material.
The evidence collected during investigation showed that the two petitioners has conspired for commission of the offence alleged and there was enough material for framing charge against them. That apart, the trial had already commenced and witnesses were being examined. Under these circumstances the order rejecting the application for discharge was proper and therefore the High Court refused to interfere with it.
In the case of Palvinder Singh v. Balvinder Singh, appellants were alleged to have set the deceased on fire. The deceased made two dying declarations and he named the appellants in one of those declarations. The Court had discharged the appellants by preferring one declaration over the other.
The Supreme Court set aside the order of discharge as the Court could not appreciate evidence at the stage of framing of charge and there was possibility of the dying declaration naming the appellants overriding the other declaration made by the deceased.
In Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary, the Supreme Court clarified that suspicion about commission of offence and involvement of accused was sufficient to frame charge against him. In the instant case, the accused took motor cycle on lease from the complainant.
There was non-payment of rent and the accused had allegedly sold the vehicle to someone without the knowledge of the complainant. The security given by the accused for taking motor cycle on lease was also found to be the property of some other person. Under the circumstances, framing of charge under Sections 420, 406 and 34, IPC against the accused was proper and justified.