Judicial Dictionary - D
The word "discharge" has not been defined in the Code of Criminal Procedure but nevertheless the word "discharge" connotes different meanings in different contexts. When an accused is discharged pursuant to a final report that means that the accused has been discharged from custody under section 500 of the Code and not discharged from the case. The legal position is that a second prosecution is permissible if the order of discharge was not passed on merits. If cognizance is taken on the basis of a fresh complaint there can be no objection to the proceedings at all and in a proper case an application for revival also may amount to a fresh complaint. (Nurul Hoque Vs. Bazal Ahmed and 3 others, 1995, 24 CLC (HCD) )
The accused can be discharged under that provision as well as under the provisions of sections 241A and 265C, of the Code. There is real distinction between the discharge of an accused on acceptance of the final report submitted by the police and discharge of an accused by the Magistrate when it finds that the charge against him is groundless or by the Court of Sessions that there is no sufficient ground for proceeding against the accused under section 241A or 265C of the Code as the case might be. Cognizance is taken by the Magistrate on the basis of a complaint, Police report or information from any person other then a Police Officer or upon his own knowledge or suspicion that such offence has been committed. Discharge of an accused under section (2B) of section 202 of the Code is made before taking of cognizance into the case as the Police finds nothing after investigation against the accused. But discharge of the accused under section 241A is made by the Magistrate and under section 265C by the Court of Sessions after cognizance is taken. Section 241A and 265C provide for giving hearing to the parties and examination of the accused and consideration of the record and the documents submitted therewith. Thus discharge under the provisions of these two sections is of different character than the discharge of the accused under sub‑section (2B) of section 202 where discharge is made before taking of the cognizance. There is no scope for making further enquiry after discharge if the accused under section 241A or 265C of the Code as the same is made after taking cognizance. Moreover, at the time of hearing under section 241A or under section 265C the Court considers the record of the case, the documents submitted therewith and the submissions made by both parties. So, all necessary materials are before the Court and as the order is passed on consideration of all such materials, there is no scope for passing any order for holding further inquiry. (50 DLR (HCD) 551)
See also Abdul Halim Vs State, 60 DLR (HCD) (2008) 393.
|Created On||June 9, 2014, 8:06 AM|