IMPORTANT POINT
Discharge of accused – Stage of discharge under Section 227 Cr.P.C. is a stage prior to framing of charge (under Section 228 Cr.P.C.) and it is at that stage alone that court can consider application under Section 300, Cr.P.C. – Once court rejects discharge application, it would proceed to framing of charge under Section 228 Cr.P.C.

JUDGMENT :

M.R. SHAH, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 27.06.2022 passed by the High Court at Calcutta in Revision Application No. 1328/2022, by which the High Court has dismissed the said revision application preferred by the appellant-accused and has confirmed the order passed by the learned Special Court, West Bengal (MP and MLA case), Bidharnagar dated 4.3.2022 passed in Special Case No. 120 of 2018, the appellant-accused has preferred the present appeal.

3. The facts leading to the present appeal in nutshell are as under:

That the appellant herein was tried earlier for the offences punishable under Sections 148, 149, 448, 364 and 506 of the Indian Penal Code (IPC) in FIR No. 61/2002 dated 26.09.2002 of Keshpur Police Station. The appellant came to be acquitted by the learned Sessions Court vide judgment and order of acquittal dated 21.05.2010. That thereafter on 6.6.2011, after a period of nine years from the date of registration of the first FIR and one year from the date of acquittal, a second FIR came to be lodged against the appellant and others alleging inter-alia that the appellant and other co-accused had caused the death of Ajay Acharya, i.e. father of the first informant, the same person that they had alleged to have kidnapped and were acquitted of.

3.1 It appears that the second FIR was registered on the basis of the discovery of the skeleton and identification of the clothes and teeth of the skeleton, by the son of the deceased, 11 years after the alleged incident.

3.2 The appellant-accused approached the High Court seeking quashing of the entire criminal proceedings emanating out of the second FIR vide order dated 29.04.2016. While dismissing the said proceedings, the High Court granted liberty to take up all the points of law at the time of framing of charge. While dismissing the special leave petitions, this Court granted liberty to the accused-appellant to avail the remedy at the stage of framing of the charge. Accordingly, a discharge application under Section 227 r/w Section 300(1) Cr.P.C. was filed by the appellant before the learned trial Court. The learned trial Court dismissed the said application by observing that such an objection can be raised at the stage of framing of charge and not discharge. The order passed by the learned trial Court has been confirmed by the High Court, by the impugned judgment and order. Hence, the present appeal.

4. It is vehemently submitted by Shri Siddhartha Dave, learned senior counsel appearing on behalf of the appellant-accused that the courts below have erred in not considering the application for discharge filed by the appellant at the stage of discharge. It is submitted that the stage of discharge under Section 227 Cr.P.C. is a stage prior to charge and it is at this stage alone that the court can consider an application under Section 300 Cr.P.C. It is submitted that once the court rejects the discharge application, it would proceed to framing of charge under Section 228 Cr.P.C. and the only question before it would be as to the nature of the offence, and not that the appellant has not committed an offence, or that he cannot be tried on account of the bar under Section 300 Cr.P.C.

4.1 It is further submitted that the courts below have failed to appreciate that the present proceedings arise from the discharge proceedings and that the stage of discharge under Section 227 Cr.P.C. precedes the stage of framing of charge under Section 228 Cr.P.C. It is submitted that as observed and held by this Court in the case of Ratilal Bhanji Mithani vs. State of Maharashtra, (1979) 2 SCC 179, once the charges are framed, the accused is disentitled from praying for discharge.

4.2 It is further submitted that it is true that the judgment of acquittal dated 21.05.2010 has been challenged by the State before the High Court, but the same has not been admitted by the High Court.

4.3 It is further submitted that the appellant has