Thursday, 17 September 2020

Under which circumstances the court can discharge accused after framing of charge?

 Even though Section 329(2) Cr.P.C. contemplates a discharge, it
is necessary to notice that this expression has been used rather loosely. As
pointed out supra, Section 329 Cr.P.C. operates only at the stage of trial, i.e.,
post the stage of framing charges. Under the Code, provisions to discharge an
accused from the prosecution are available in Sections 227, 239 and 245
Cr.P.C. These powers are available to the trial Court only prior to the framing
of charges. However, Section 329(2) Cr.P.C operates at the stage of trial and
contemplates a discharge of the accused even after the framing of charges. A
fortiori, it would seem incongruous to import the tests evolved by the Supreme Court in State of Orissa vs. Debendra Nath Padhi (2003) 2 SCC 711 under Section 227/239 Cr.P.C at the stage prior to framing of charges, to the discharge contemplated under Section 329(2) Cr.P.C., which operates at the stage of
trial i.e., post the framing of charges. As pointed out by the Supreme Court in
Ratilal Bhanji Mithani vs. State of Maharashtra and others7, the normal
rule is that once a charge is framed, the Magistrate/Court has no power under
Section 227 Cr.P.C. or any other provision of the Code to reverse the charge
and discharge the accused. Section 329(2) Cr.P.C. is an exception to this rule.{Para 33}

Another consideration is the fact that an “acquittal” under Section 335  Cr.P.C. on the ground of unsoundness of mind at the time of commission of the act is contemplated only when trial is resumed under Section 331 Cr.P.C. after the accused is mentally fit to stand trial. Thus, a person with incurable mental illness will never be in a position to face trial. Under these
circumstances, Section 329(2) Cr.P.C. can be gainfully employed to discharge these persons by permitting their advocates to adduce materials to prove their mental incapacity so as to avail the exception under Section 84 of the IPC. These considerations impel this Court to hold that the expression “discharge” cannot be construed as being akin to the tests applied by the Court under Section 227 or 239 Cr.P.C.

IN THE HIGH COURT OF JUDICATURE AT MADRAS



Crl.O.P.No.4993 of 2018 and Crl.M.P.Nos.2485 & 2486 of 2018

Kaliyappan Muniyappan Aanurpatty Vs State 

CORAM:
 Mr. JUSTICE P.N. PRAKASH
PRONOUNCED ON: 04.09.2020.
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