Discharge application
DHIRAJ CHANDRAKANT KUMBHAR
(Querist) 14 March 2014
This query is : Resolved
Sir, offence u/s 304 A of IPC is been registered against me, I have obtained bail, after one month since then charge sheet is also been filed, now I have 2 apply for dicharge. So my grievance is that when should I file discharge application whether after the charge is framed or before charge frame, as charge is not been framed yet n it is likly 2 be frame on next upcoming date, n can I tender that discharge application directly in same court or I have 2 file separate OMA Apllication.
prabhakar singh
(Expert) 14 March 2014
ection 227 provides 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. 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.
Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he find that “there is not sufficient ground” for proceeding against the accused. In other words, his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused. If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not, he will discharge the accused. This provision was introduced in the Code to avoid wastage of public time which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure.
It would be moved in same court any moment before charge is framed.
yogesh
(Expert) 14 March 2014
you have to file the application for discharge u/s 227 and in the same court
Rajendra K Goyal
(Expert) 15 March 2014
Well advised by the expert prabhakar singh ji, agree to it.
DHIRAJ CHANDRAKANT KUMBHAR
(Querist) 17 March 2014
Sir, concern police station has lodged sou motu FIR aginst me, it is not been lodged on anyones complaint, so should I have 2 file discharge application u/s 227 or u/s 239.
