What Is Discharge and How Do You Seek It Before Charges Are Framed?

What is discharge in a criminal case?

Discharge is the court's decision, after the police report is filed and before charges are framed, that there is not enough material to put the accused on trial. The case ends against that person without a trial. It differs from acquittal, which comes after evidence is recorded, and from quashing, which the High Court orders under its inherent powers. A discharge criminal case order is made by the trial court itself, on the prosecution's own papers.

The stage is easy to identify in a Delhi court. After the chargesheet under Section 193 BNSS (old Section 173 CrPC) is filed and the court takes cognizance, the accused is supplied copies of the police report, statements and documents under Section 230 BNSS (old Section 207 CrPC). In a case triable by the Court of Session, the Magistrate then commits it to the Sessions Court. The order sheet then reads 'for arguments on charge' or 'for consideration on charge'. That is the stage for a discharge application.

At this hearing, the court asks a narrow question: if everything in the chargesheet is accepted as it stands, is there sufficient ground to proceed against this accused for this offence? If yes, it frames charges. If no, it discharges. It may also discharge for some offences and frame charges for others, or discharge one accused and frame charges against the rest.

Discharge is a real remedy, not a formality. Many cases, especially those with several family members named or business disputes dressed up as crimes, are cut down to size at this stage. It is also the last point before a trial that may take years, which is why it deserves careful preparation.

The provisions behind discharge and framing of charge

The test the court applies at the framing of charge

The Supreme Court laid down the classic test in Union of India v. Prafulla Kumar Samal (1979). The judge can sift and weigh the evidence for the limited purpose of finding whether a prima facie case is made out. Where the material discloses grave suspicion against the accused that is not properly explained, the court frames a charge. Where two views are possible and the material gives rise to suspicion only, as distinct from grave suspicion, the court may discharge.

The court does not hold a mini trial. Sajjan Kumar v. CBI (2010) and State of Tamil Nadu v. N. Suresh Rajan (2014) warn against testing the reliability of witnesses or weighing contradictions in detail at this stage. The question is not whether the accused will be convicted, but whether there is enough to try him.

The court looks at the prosecution's material, not the defence's. In State of Orissa v. Debendra Nath Padhi (2005), the Supreme Court held that the accused cannot ordinarily produce his own documents at the stage of charge. Later decisions, including Nitya Dharmananda v. Gopal Sheelum Reddy (2018), recognised a narrow exception: where material of sterling quality has been collected or withheld by the investigation and would clearly show the case is false, the court can look at it. That exception is narrow and should not be the foundation of your application.

When Advocate B.K. Singh prepares a discharge application, he reads the chargesheet witness by witness and makes a table of what each statement says against each accused and which ingredient of the offence it supports. Gaps that appear in that table, such as no witness attributing any act to a particular relative, or nothing showing dishonest intention at the start of a transaction, are usually the strongest arguments, because they come from the prosecution's own papers.

Grounds that often succeed in a discharge application

• Missing ingredients. Even accepting every statement, an essential ingredient of the offence is absent, such as dishonest inducement at the inception for cheating under Section 318 BNS (old Section 420 IPC).
• A civil dispute dressed as a crime. A breach of contract, an unpaid invoice or a partnership quarrel with no criminal element.
• General allegations against relatives. In dowry and cruelty cases under Sections 85 and 86 BNS (old Section 498A IPC), names in a list with no specific act, date or role. Where the couple has since settled, quashing is often the better route, as our guide on quashing a 498A case after divorce or settlement explains.
• No sanction or invalid sanction. Prosecution of a public servant without sanction under Section 218 BNSS (old Section 197 CrPC) or Section 19 of the Prevention of Corruption Act, where sanction is needed.
• No evidence linking the accused. The chargesheet names the accused but no witness or document connects him to the act.
• Legal bars. Cognizance taken after the limitation under Section 514 BNSS (old Section 468 CrPC), a complaint that the law requires from a specific person, or a special law that excludes the offence charged.

The 60-day window for a discharge application under the BNSS

The BNSS introduced time limits that the CrPC did not have. Under Section 250(1), in a sessions case, the accused may file a discharge application within 60 days from the date of commitment. Under Section 262(1), in a Magistrate's warrant case on a police report, the window is 60 days from the date copies of documents are supplied under Section 230. The court is then expected to frame charges within 60 days from the first hearing on charge.

Courts have read the discharge deadline as directory. In Sajith v. State of Kerala (2024), the Kerala High Court held that a court has discretion to consider a discharge application filed after 60 days, because Section 250 uses 'may' and has no consequence for delay. It also said that in special courts where there is no committal, such as under the POCSO Act or the NDPS Act, the 60 days can be counted from the supply of documents. Check the current Delhi High Court view before relying on any delay being excused.

The safe course is to file within 60 days. Note the date of commitment or supply of documents from the order sheet the day it happens, and diarise the deadline. If copies are incomplete, illegible or missing, apply for complete copies at once and record that in the order sheet, because the court is more likely to excuse delay that the prosecution caused.

For FIRs registered before 1 July 2024, the old CrPC continues to apply under Section 531 BNSS, and the CrPC had no fixed window for discharge. Even then, file at the stage of charge, not after charges are framed.

Which court hears a discharge application

The trial court hears it. In a Delhi case on a police report, that is the Magistrate for warrant cases triable by a Magistrate, and the Sessions Court (an Additional Sessions Judge) for cases committed to it, at the district court complex for the police station concerned, such as Tis Hazari, Saket, Patiala House, Karkardooma, Rohini or Dwarka. CBI and anti-corruption cases go to the special courts at Rouse Avenue, and POCSO and NDPS cases to their designated special courts.

In summons cases, which cover offences punishable with up to two years, there is no stage of framing of charge and so no discharge application in the same sense. The Magistrate states the substance of the accusation under Section 274 BNSS (old Section 251 CrPC) and the trial follows. The Supreme Court in Subramanium Sethuraman v. State of Maharashtra (2004) held that a Magistrate cannot recall the summons and discharge the accused in a summons case. The remedy there is to challenge the summoning order, explained in our guide on how to challenge a summoning order in a complaint case.

The Delhi High Court does not hear discharge applications at first instance. It comes in by criminal revision against an order framing charge or refusing discharge passed by a Sessions Court, or concurrently with the Sessions Court against a Magistrate's order, and under Section 528 BNSS in limited cases. If the case is pending in a court in Haryana or Uttar Pradesh, the revision lies to the Punjab and Haryana High Court or the Allahabad High Court, not to Delhi.

Discharge or quashing: which route first?

Once a chargesheet is filed, both routes are open: a discharge application in the trial court, or a petition in the Delhi High Court under Section 528 BNSS to quash the FIR and chargesheet. They overlap but are not the same. The High Court quashes only in clear cases that fit the categories in State of Haryana v. Bhajan Lal (1992), and it often tells petitioners that the trial court can consider the same points at the stage of charge.

A discharge application has practical advantages. The trial court has the whole record, the hearing is cheaper and quicker to obtain, and if it fails, a revision still lies. A petition to quash the FIR in the Delhi High Court makes more sense where the case is an abuse of process from the start, where the parties have settled, or where an interim stay of the trial is urgently needed. Our guide on when the Delhi High Court can quash an FIR explains those situations.

Running both together is possible, but tell each court about the other. A High Court that sees an undisclosed discharge application pending below will not be pleased, and a trial court may adjourn the hearing on charge if a quashing petition is pending with a stay.

Step by step: seeking discharge before charges are framed

1. Get complete copies

   Make sure you have the full chargesheet, all statements under Section 180 BNSS (old Section 161 CrPC), seizure memos, forensic reports and documents relied upon. Apply in writing for anything missing and get it recorded in the order sheet.

2. Diarise the 60-day deadline

   Note the date of commitment or supply of documents and count 60 days. Plan to file well before that.

3. Analyse the chargesheet against each ingredient

   List the ingredients of each offence and, for each accused, the material supporting each one. The gaps become your grounds.

4. Draft the discharge application

   Set out the facts briefly, the offences charged, the ingredients missing for each, the case law that applies and the specific relief: discharge from all or some offences.

5. File, serve and argue

   File in the trial court and serve the prosecutor and, where relevant, the complainant. Arguments may take one or several dates. Courts in Delhi often ask for short written submissions.

6. Attend for the order and the charge

   If the court frames charges, the accused must be present to hear them and plead. If discharge is granted, collect the certified copy and keep your bail bonds in mind until the prosecution's revision period passes.

7. Challenge an adverse order promptly

   Apply for a certified copy the same day and file a revision within 90 days. Ask for a stay of trial only where the case for revision is strong.

Time and cost at each stage

Documents to collect before filing a discharge application

• Certified copy of the FIR and the full chargesheet with all annexures
• Statements of witnesses recorded by the police and before the Magistrate, if any
• Seizure memos, site plans, forensic and medical reports
• The order taking cognizance and the order of commitment, if any
• Order sheets showing the date of supply of copies
• Sanction order, if the accused is a public servant
• Contracts, invoices, emails or bank records that appear in the chargesheet itself
• Your bail or anticipatory bail order and bail bonds

What the hearing on charge looks like in a Delhi court

On the date fixed for charge, the prosecutor opens by pointing to the material that, in the prosecution's view, makes out each offence. The defence then argues the discharge application, usually with a compilation of the relevant statements and documents from the chargesheet, flagged and paginated. In many Delhi courts, the presiding officer asks for written submissions of a few pages and fixes a date for the order.

Expect questions from the bench. The judge may ask which statement supports which ingredient, or why a particular witness's account should not be read as attributing a role to your client. Short, specific answers with page numbers work far better than long speeches about the injustice of the case.

If the court frames charges, it writes them out, reads and explains them to the accused, and asks whether he pleads guilty or claims trial. The accused must be personally present for this, so plan accordingly. Once you plead not guilty, the case moves to prosecution evidence, and your discharge points become trial arguments.

If discharge is refused: revision or a petition in the High Court

An order framing charge is not a purely interlocutory order, so a revision lies against it despite the bar in Section 438(2) BNSS (old Section 397(2) CrPC). That has been settled since Madhu Limaye v. State of Maharashtra (1977) and Amar Nath v. State of Haryana (1977). The revision is filed within 90 days of the order under the Limitation Act. The page on revision against summoning, charge or interim orders explains how these are drafted at the Delhi High Court.

Against a Magistrate's order, the Sessions Court and the High Court have concurrent revisional power, but in practice the High Court expects you to go to the Sessions Court first. Once one has decided, Section 438(3) bars a second revision by the same person; a further challenge to the High Court is then possible only under Section 528 BNSS in exceptional cases, as recognised in Krishnan v. Krishnaveni (1997). Against a Sessions Court's order framing charge, the revision goes straight to the Delhi High Court. Our guide on what a criminal revision is and when to file it covers the procedure.

Revisional courts interfere only where the trial court has clearly misapplied the test, ignored material, or framed a charge for an offence whose ingredients are plainly missing. A stay of trial is not automatic. The Supreme Court in High Court Bar Association, Allahabad v. State of U.P. (2024) held that interim stays do not lapse automatically after six months, but High Courts still grant stays sparingly in charge matters. The service page on stay of summons or trial proceedings explains how interim stays are sought.

Advocate B.K. Singh applies for the certified copy of an adverse order on charge the day it is pronounced. The time taken to obtain the copy is excluded from the 90 days only from the date you apply, and a revision filed with a properly certified order avoids a registry objection that can cost a week.

If you are the complainant or victim: challenging a discharge

An order of discharge is a final order for the accused, and the prosecution, and in many cases the complainant or victim, can challenge it in revision within 90 days. The revisional court cannot set aside a discharge without hearing the accused, because Section 442(2) BNSS (old Section 401(2) CrPC) bars any order to the prejudice of the accused without giving him an opportunity to be heard.

A complainant's revision does best when it shows specific material the trial court overlooked, such as a witness statement that directly attributes a role to the discharged accused, rather than general dissatisfaction. In the Delhi High Court, the State is usually represented by the Additional Public Prosecutor, and the complainant's counsel supports or leads, depending on the case.

If the discharge was on a technical ground, such as missing sanction, the prosecution may be able to obtain proper sanction and proceed afresh. Ask your lawyer whether the order leaves that door open.

Mistakes that weaken a discharge application

• Filing after charges are framed. Once the charge is framed, the discharge stage is over and only revision remains.
• Missing the 60-day window. Delay may be excused, but it gives the prosecution an easy first objection.
• Relying on defence documents. Courts look at the prosecution's material; build your case from the chargesheet itself.
• Arguing the case as if at trial. Attacking witness credibility in detail invites the reply that it is a matter for evidence.
• Treating all accused alike. Separate arguments for each accused, especially relatives with no specific role, succeed more often.
• Not seeking complete copies. An application built on half the chargesheet misses points and invites surprises.

What to do this week

Check the order sheet for the date of commitment or supply of documents and count 60 days. Collect complete copies of the chargesheet and documents, and read every statement for what it says about you specifically. Speak to your lawyer about whether a discharge application, a quashing petition or both are right in your case, and get the application filed in time. If charges have already been framed, note the date and plan a revision within 90 days.

For advice on your papers or updates on the law, you can contact Advocate B.K. Singh.