Up-to-Date Question for the Exam of Civil Judge Answer of Question No.1 Q1: Distinguish between discharge of accused, acquittal and cancellation of case. Elaborate your answer with reference to relevant provisions of law? Thnx to Sohail Anjum, Farooq Ali, Umar Gabol Adv, Kifayat Khan Adv, Awais Bhutta, Noor Ejahan, Laila Basim, Naresh Kumar, Shazia Sehar, Dua Tahir, Sher Baz Ali, Wasim Rana and other participants for liking and sharing their knowledge on this topic. DISCHARGE OF AN ACCUSED: Outlines: 1. Relevant Provisions of Law: 2. Concept of “Discharge”: 3. Guidelines for Magistrate to be followed while making an order for discharge: 4. Modes of Discharge: 5. Discharge under section 63: a. Text of Section 63: b. Pre-requisites for discharge under section 63: c. Procedure for discharge under section 63: 6. Discharge under section 169: a. Text of Section 169: b. Pre-requisites for discharge under section 169: c. Procedure for discharge under section 169: 7. Difference between section 63 and 169: 8. Nature of an order for discharge under section 63 or 169: 9. Remedy against an order under section 63 or 169: 1. Relevant Provisions of Law: Section 63, 169 and 173 of Cr.P.C 2. Concept of “Discharge”: Friends instead of elaborating the concept of “discharge” in my own words, I would like to refer a very beautiful judgment which will clear your all concepts about discharge. It was held in PLD 2001 Lah 236 that: i. Accused in a criminal case is discharged by a Magistrate only from his bond when his custody is no longer required for the purposes of investigation. ii. Such order of discharge is only an administrative and executive act of a Magistrate at a stage when the matter is still under investigation and it has yet to reach the Trial Court iii. Any question as to which Court is to ultimately try the case is hardly relevant at such a stage. iv. Discharge of accused does not amount to an acquittal or even smothering or termination of investigation of the case. v. Discharge order only means that physical custody of the accused is not required for the purposes of investigation at present and at any subsequent stage during such an investigation order of discharge can always be recalled by the Magistrate whenever it appears to his satisfaction that physical custody of the accused is subsequently requited for proper investigation of such case. vi. Discharged accused even can subsequently be summoned by the Trial Court to face the trial. 3. Guidelines for Magistrate to be followed while making an order for discharge: There are certain guide lines laid down by superior courts for a magistrate to following while discharging an accused. A Magistrate is required to judiciously examine the report and to act fairly, justly and honestly. Magistrate is supposed to go through the material collected during investigation, see its admissibility in evidence and then to pass an order in accordance with law 4. Modes of Discharge: An accused may be discharge under section 63 as well as section 169. 5. Discharge under section 63: a. Text of Section 63: “Discharge of person apprehended: No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate.” b. Pre-requisites for discharge under section 63: i. Accused must be arrested and in the custody of police ii. Under section 63, an accused can be discharged only during investigation of the case. c. Procedure for discharge under section 63: Police officer shall prepare discharge report and shall produce the both discharge report as well as corpus of the accused before concerned magistrate who shall discharge the accused by passing a special order in that regard. 6. Discharge under section 169: a. Text of Section 169: Release of accused when evidence deficient: If upon an investigation under this Chapter, it appears to the officer incharge of the police station or to the police officer making the investigation that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police-report and to try the accused or send him for trial. b. Pre-requisites for discharge under section 169: No sufficient evidence or reasonable ground of suspicion grounds exist to forward the accused to a magistrate. c. Procedure for discharge under section 169: i. First of all the police officer shall release an accused, if he considered that no case was made out against him, on his furnishing a bond, with or without sureties, with direction to the released accused to appear as and when he was summoned to appear before the Magistrate. ii. The police shall submit challan by declaring accused innocent and putting his name under column no.2. The Magistrate shall conduct an inquiry without recording evidence by reviewing the evidence collected by the police during investigation and therafter form an opinion to either discharge the bonds and sureties under section 173(3) or to proceed against the released accused for trial by exercising power under section 190. iii. Magistrate has to pass an order in writing qua the bond and sureties furnished by the accused and the fate of the case. iv. Where Magistrate was not competent to take cognizance of the offence he would refer the same to the Sessions Court under S. 190(3), Cr.P.C. 7. Difference between section 63 and 169: i. Order for discharge under section 63 is made during investigation while order under section 169 is made at the conclusion of investigation and before submission of report under section 173. ii. Before a magistrate, an accused shall be in custody of police at the time of making an order of discharge under section 63 while the accused shall be at liberty while making an order of discharge under section 173(3). 8. Nature of an order for discharge under section 63 or 169: Order passed under section 63 as well as 169 is purely of administrative nature and not a judicial order. 9. Remedy against an order under section 63 or 169: Being of administrative nature, no alternative remedies lies against order under section 63 or 169, hence, the same may be challenged in writ jurisdiction under Article 199 of Constitution 1973. ACQUITTAL OF AN ACCUSED: Friends I think there is no need to guide you on this point. However we will discuss this topic separately. Please make yourself differences between discharge and acquittal. CANCELLATION OF F.I.R: 1. Relevant Provisions of Law: Rule 24.7 of Police Rules 1934 and Section 173 of Cr.P.C 2. Grounds for cancellation of F.I.R: Under Rule 24.7 of Police Rules 1934, following grounds are given for cancel an F.I.R: i. First information was maliciously false or ii. False owning to mistake of law or fact or iii. Non-congnizable iv. Information was a matter for civil suit 3. Procedure for Cancellation of F.I.R: Rule 24.7 also describe the procedure for cancellation of F.I.R i. The superintendent of police shall send the first information report and other papers on record to Magistrate having jurisdiction. ii. The magistrate shall peruse the whole record and shall pass a final order for cancellation of F.I.R. iii. When Magistrate shall pass an order for cancellation of F.I.R, the concerned police officer shall cross the F.I.R in the F.I.R Register with red ink.
Posted on: Mon, 21 Jul 2014 06:14:36 +0000
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