Discharge and Release of the accused during inquiry and Remand of the case

Interpretation Clause:

– Cognizance: Magistrate has authority to take cognizance of murder case but he is not competent to try the case.

– Competence: Magistrate has authority to take cognizance of murder case but he is not competent to try the case.

– Discharge: It is 90% acquittal of an accused person. Section : 63, 173 (3)

– Inquiry: (4(k): Proceedings done by the magistrate other than trial. Such as taking cognizance of murder trial, examination of witnesses, accused, etc.

– Investigation (4 (L)): Proceedings done by Police for collecting evidences.

– Prima facae:

– Release: 169, 249

– Remand: Sending back to the custody. Section: 167, 344 and 86

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Release: 169 (Release by the police), 249 (Release by the Magistrate).

169: Release by the police when evidence insufficient during investigation.

Police officer may release an accused if evidence deficient while investigation- shall order him to execute a bond so that he may be brought before the court whenever called.

It is temporary until endorsed by the Magistrate. Case is not finished here- police report (challan) shall be submitted before the Magistrate and whenever called accused shall be presented (Means the Magistrate may recall the same accused).

Once the challan is submitted in the Court under S.173, Cr.P.C., the provisions of S.169, Cr.P.C. cannot be invoked. (2000 P Cr L J 25 Peshawar HC).

Stage of Legal Process: Discharge occurs before the trial begins, while release can happen at any stage.

Person is released when in custody but discharge can be for accused who is not in custody even.

249. Power to stop proceeding when no complaint: a Magistrate of the First Class, or with the previous-sanction of the Sessions Judge, any other Magistrate may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or

conviction; and may thereupon release the accused.

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Discharge.

When prima facia it does not seem like an offence or such an act committed by the accused.

63 Discharge of person apprehended (At the stage of remand specially):

Power of the Magistrate.

in case Magistrate found accused innocent, he would refuse to take cognizance of the matter.

Discharge is 90% acquittal of an accused person.

Grounds: It is false and vexatious case and there is high probability that accused shall not be convicted.

It is not cancellation of the case- challan shall be submitted.

Accused person can also apply by way of application to the Magistrate for this remedy.

If application is dismissed Revision application may be preferred to the Sessions court as per 439-A. Further you can go for 561 (A) to go to HC- inherent powers of the HC (It is called quashment of FIR).

Stage of Legal Process: Discharge occurs before the trial begins, while release can happen at any stage.

Discharge order is challenged before the HC u/a 199. Writ Petition No. 50883 of 2020 Muzaffar Ahmad Vs. The State etc.

1. Can a Magistrate discharge an accused person in an offence of murder triable by the sessions court?

Ans: Yes (2008 YLR 1669). But he must have power to take cognizance. 63

173 (3). Accused may be discharged under this provision also while submission of challan or interim. It is done by the Magistrate suo moto.

A class, B class and C class FIR.

A Class: These are cases where the FIR is considered true, but the accused persons are untraced (Absconder). This means there is no clue about the culprits or property, or the accused is known but there is insufficient evidence to justify sending them to trial.

B Class: These cases are deemed maliciously false. This classification is used when the FIR is found to be baseless and filed with malicious intent.

C Class: These cases are neither true nor maliciously false, or they are non-cognizable cases. This means the case does not fall under the jurisdiction of the police for investigation.

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Acquittal.

Final/permanent release of an accused.

245

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Stages…

– Investigation: 169 (Release)

– Remand Stage: Magistrate has power of 63 (Discharge). 63 is applied before the submission of challan. If during this stage accused goes to HC U/S 561-A FIR may be quashed and discharged.

– There after challan shall be submitted 173. Accused may be discharged u/s 173 (3).

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Remand. 167, 344 and 86

Physical Remand: 167: If investigation cannot be completed within 24 hours- officer incharge of police station shall send copy of the entries and accused to the Magistrate.

– Magistrate (he must has jurisdiction to try the offence is not necessary) may direct detention (remand) for a term not exceeding 15 days in the whole (In NAB and ATA, cases Remand can be of 90 days).

– If Magistrate has no jurisdiction and considers further detention unnecessary- he may order accused to be forwarded to the concerned Magistrate.

-If Magistrate remanding- he shall record reasons.

– He shall also send copy of order to Sessions judge.

– When female is accused Magistrate shall not order detention except: qatl, dacoity.

Judicial Remand: 344: If because of absence of any witness or any other cause, case is adjourned court may by warrant remand the accused if in custody. 15 days. Order under this section shall be signed by the judge or magistrate.

Note: If investigation is completed, police applies for judicial remand of accused.

Transit Remand/ Rahdaari Remand/ Safri Remand: It is granted under section 86. If bond is executed then that bond shall be sent to the court which issued the warrant. Maximum: 7 days.

Note: If Remand is illegally granted (simply saying, when person is aggrieved) then decision can be challenged in Revision.

Note: If offence is bailable or non-bilable then that procedure shall also be taken in account.

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Discharge Vs Release:

Discharge:

1. Stage: Occurs before the trial begins, typically during or after the investigation stage.
2. Legal Grounds: Happens when there is no prima facie case or if the case appears false or vexatious. The accused is discharged if there is high probability they won’t be convicted.
3. Applicability: Can apply to an accused whether in custody or not.
4. Effect: Discharge is considered as 90% acquittal. The accused is not fully absolved, but the court refuses to take cognizance of the case due to insufficient evidence.
5. Finality: Not the final end of the case. A challan can still be submitted to the court, and the accused may still be recalled.
6. Magistrate’s Role: The Magistrate refuses to take cognizance of the case due to lack of evidence or innocence of the accused.
7. Challenge: The discharge order can be challenged through revision (Section 439-A Cr.P.C.) or in the High Court under its inherent powers (Section 561-A Cr.P.C.).
8. Example: Discharge under Section 63 Cr.P.C. or Section 173(3) Cr.P.C.

Release:

1. Stage: Can happen at any stage of the legal process (during investigation, remand, or trial).
2. Legal Grounds: Happens when the evidence is insufficient to keep the accused in custody during the investigation (Section 169 Cr.P.C.) or if proceedings are stopped by the Magistrate without a judgment (Section 249 Cr.P.C.).
3. Applicability: Generally applies when the accused is in custody.
4. Effect: Release is temporary and contingent on further investigation or judicial proceedings. The accused is still required to attend court when summoned.
5. Finality: The case is not finished upon release. The police will submit a report to the Magistrate, and the accused can still be prosecuted later.
6. Magistrate’s Role: The Magistrate or police may release the accused, depending on the stage and the legal grounds.
7. Challenge: No formal procedure is needed to challenge a release, as it is temporary, and the case continues.
8. Example: Release under Section 169 Cr.P.C. (by the police) or Section 249 Cr.P.C. (by the Magistrate).

Key Differences:

• Discharge implies the case is dismissed before the trial due to lack of evidence, while release implies the accused is let go temporarily but the case continues.
• Discharge can occur whether or not the accused is in custody, while release generally applies to those in custody.
• Discharge has the effect of stopping the case at that point (though not permanently), while release is more temporary, allowing for further legal proceedings.

Case Laws:

Peshawar High Court, NWFP. 2005 M L D 1883 If Magistrates were given the powers to discharge and release an accused at the very initial stage, there would be no room for success in blind heinous criminal cases which were always investigated on different theories of probabilities based on spy information—Once an accused was apprehended and found innocent, he could be set free during investigation by obtaining discharge order from the Court—discharge of an accused was also governed by S.169, Cr.P.C. which was at the conclusion of investigation and on submission of report under S.173, Cr.P.C.

2010 P Cr L J 946 Lahore High Court, Lahore. After completion of investigation and submission of case Magistrate concerned had power to Discharge accused under S.63, Cr.P.C. in case of his innocence, that in case Magistrate found accused innocent, he would refuse to take cognizance of the matter; that Rule 24.7 of the Police Rules, 1934 made a provision for cancellation of cases during the course of investigation under the orders of the concerned Magistrate and that remedies were available to accused who claimed to be innocent and could seek relief without going through the entire length of investigation.

2008 YLR 1669 Lahore High Court, Lahore S.63—Discharge of accused—Jurisdiction of Magistrate—Scope—Magistrate is competent under S.63, Cr.P.C to Discharge accused, when he is taken into custody in any case triable by Magistrate, Court of Session or any Special Court—Provisions of S.63, Cr.P.C. empowers a Magistrate to Discharge arrested accused person irrespective of the fact, whether or not he himself is competent to try him in case of submission of challan against him.

PLD 2001 Lahore 271
Before Asif Saeed Khan Khosa, J

Misinterpretation of the Law:

• 1. There is a growing misunderstanding and confusion regarding the legal concept of discharging an accused in a criminal case.

Discharge Does Not Mean Acquittal:

• 1. Discharge is often mistaken to mean that the investigation or prosecution has ended, and the accused is permanently absolved, almost equating it to an acquittal. This is incorrect.

Magistrate’s Power to Discharge:

• 1. Some believe that only a court competent to try the offence can discharge the accused, not a Magistrate who lacks jurisdiction. This notion is also incorrect.

Clarification of Discharge:

• 1. Discharge is simply a procedural step, not a final acquittal. It does not mean that the accused is free from all allegations permanently but only that, at the time of investigation, there is insufficient evidence to proceed further.

This judgment aims to clarify and restate the correct legal position regarding discharge under the Cr.P.C.

Similarly, in Rehmat Ali v. Nazir Hussain (1997 MLD 1135) it was held: “The Magistrate before whom an arrested person is produced, may proceed under section 63 read with section 167 Cr.P.C. to make a special order to release or discharge such person if the police has not been able to show sufficient cause for remanding the accused to police custody. These sections also imply that the investigation is to be completed within 24 hours and if it is not possible then the Magistrate may grant remand of an arrested person subject to a term not exceeding 15 days in the whole. It is thus obvious that under the law a Magistrate is competent to either remand an accused to the police custody subject to a term not exceeding 15 days or he may make a special order to discharge such person.”

MCQs:

1 Under Section 169 Cr.P.C., an accused can be released by the police if:

A) The trial has started

B) The evidence is sufficient

C) The evidence is insufficient

D) The case is forwarded to the High Court

What happens after the police release an accused under Section 169 Cr.P.C.?

A) The accused is free permanently

B) The accused has no further obligations

C) The accused must execute a bond and may be recalled by the Magistrate

D) The case is finished without further action

Which section empowers a Magistrate to release an accused if there is no complaint during proceedings?

A) Section 63 Cr.P.C.

B) Section 245 Cr.P.C.

C) Section 249 Cr.P.C.

D) Section 173 Cr.P.C.

Under which section can a Magistrate discharge an accused person at the remand stage if found innocent?

A) Section 249 Cr.P.C.

B) Section 63 Cr.P.C.

C) Section 173 Cr.P.C.

D) Section 167 Cr.P.C.

The classification of an FIR as “B Class” means:

A) The FIR is true but the accused is untraced

B) The FIR is maliciously false

C) The FIR is neither true nor false

D) The FIR is cognizable by the police

A Magistrate can discharge an accused in a murder case under which circumstances?

A) Only with prior sanction from the Sessions Judge

B) Never, since it is triable by the Sessions Court

C) If he has the power to take cognizance

D) Only with permission from the High Court

Under which section can an accused person apply to the Magistrate for discharge?

A) Section 63 Cr.P.C.

B) Section 169 Cr.P.C.

C) Section 439-A Cr.P.C.

D) Section 245 Cr.P.C.

Once the police submit a challan under Section 173 Cr.P.C., which of the following is true?

A) Section 169 Cr.P.C. can still be invoked

B) Section 169 Cr.P.C. cannot be invoked anymore

C) The case is automatically dismissed

D) The accused must be acquitted

Transit (Safri) Remand is governed by which section?

A) Section 86 Cr.P.C.

B) Section 344 Cr.P.C.

C) Section 167 Cr.P.C.

D) Section 561-A Cr.P.C.

In which case can a High Court quash an FIR under its inherent powers?

A) Section 561-A Cr.P.C.

B) Section 167 Cr.P.C.

C) Section 63 Cr.P.C.

D) Section 344 Cr.P.C.

Answer Key:

1. C) The evidence is insufficient
2. C) The accused must execute a bond and may be recalled by the Magistrate
3. C) Section 249 Cr.P.C.
4. B) Section 63 Cr.P.C.
5. B) The FIR is maliciously false
6. C) If he has the power to take cognizance
7. C) Section 439-A Cr.P.C.
8. B) Section 169 Cr.P.C. cannot be invoked anymore
9. A) Section 86 Cr.P.C.
10. A) Section 561-A Cr.P.C.