Discharge under Section 239 Criminal Procedure Code, 1973

The general process of law is that after the police on completing its investigation, files the final charge sheet against the accused. Thereafter, the accused is put to trial for framing of charges against him, by the concerned Court. Section 239 of the CrPC provides an avenue for the accused to be discharged before the charges may be framed. This article discusses the working of Section 239.

Wed Jul 20 2022 | Employment, Criminal and Labour | Comments (0)


The general process of law is that after the police on completing its investigation, files the final charge sheet against the accused.

Thereafter, the accused is put to trial for framing of charges against him, by the concerned Court. However, there lies a provision under the Code of Criminal Procedure that the Accused person can be discharged before the charges are framed against him.

This provision can be resorted to by the Accused provided some certain criteria are satisfied.

The Applicable Law

Section 239, CrPC  when accused shall be discharged - (1) If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

Ingredients for Discharge

The Court will have to consider the Police Report and the Charge sheet (F.I.R and Final Case Report) as submitted to it by the Police under Section 173.

Applicability of Discharge

Discharge as under Section 239 CrPC  is applicable to Warrant Cases (Cases of a serious nature)

  1. Practically it is observed, most often than not, the Charge sheet/Final Report as filed by the Police can be assailed in the Courts.
  2. The foremost principal to be observed that when the Police files the Final Charge sheet , often the material particulars pertaining to the offences alleged are missing.

To simplify

  1. The accusation levelled in the Charge sheet is simply, for instance; Accused charged under Section 120 B/420/467 of the Indian Penal Code.
  2. The Courts have unanimously held that in such circumstances, as the Police have failed to state details as to how the offence was committed, i.e. material particulars of the offence; the Accused is liable to be discharged.

Explaining further, the example as above, it is common knowledge that Section 120 B of the IPC deals with Criminal Conspiracy, Section 420 deals with Cheating and Section 467 deals with Forgery.

Thus, if the vital elements of the crime such as common intent in Criminal Conspiracy; Dishonest intention in Cheating; Wrongful Economic gain in Forgery are not made out in the Charge sheet , then the Court is liable to discharge the Accused as no prima facie case is made out. Thus, it is on the above premises, the Accused can be discharged.

Documents perused by the Court

It is further pertinent to mention that at the stage of framing of charges, the prosecution evidence does not commence, therefore the Magistrate has to generally consider the materials as placed before it by the Investigating Police Officer.

To put it differently, if the court were to think that the accused might have committed the offence, it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution have to be accepted as true at that stage." The crystallized judicial view is that the Court cannot conduct a deep roving enquiry into the evidence at this stage.

Thus, the Complainants allegations + Witnesses Statements + Charge sheet as prepared during investigation are the materials to be considered by the Court

Contents in an Application For Discharge under Section 239 C.R.P.C

The following points must be raised in the Application


A question may crop up as to what exactly constitutes a prima-facie case. The Courts have reiterated that there must not be a single shred of evidence against the Accused. However, the Courts have also held that in the event a suspicion arises against the Accused, still he would be discharged provided the suspicion is not a grave suspicion.

In the words of the Hon'ble Kerala High Court, “The law does contemplate a situation, though it must be rare, where an indictment on the basis of a final report may be groundless.”

In such circumstances, the court provides the safety valve provision in Section 239/240 C.r.P.C where under premature discharge can be claimed by such inductees. 

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