Discharge under Indian Criminal Law: CrPC and BNSS

Advocate Tarun Gaur | Criminal Lawyer, Delhi High Court & District Courts

Discharge is the trial court’s power to end a criminal case before a full trial, when the record does not disclose sufficient ground to proceed. It is not an acquittal after evidence. It is a crucial pre-trial filter.

Under the Code of Criminal Procedure, 1973 (CrPC), that filter existed in Sessions trials and warrant trials. It was not available in summons trials. For years, a person summoned in a summons case — including a large number of Section 138 Negotiable Instruments Act complaints — had no statutory discharge before the Magistrate. The usual escape was a petition before the High Court.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) keeps discharge in Sessions and warrant cases, adds filing timelines, and — this is the change that matters for everyday Magistrate practice — expressly introduces discharge in summons cases under Section 274 BNSS.

This page explains that shift in the language used in Delhi courts. At The Chambers of Tarun Gaur, Advocates, discharge applications, revisions against refusal of discharge, and connected High Court petitions are part of regular criminal practice. Advocate Tarun Gaur practises independently at the Delhi High Court and Delhi District Courts (including Dwarka Courts), after formative training under Mohit Mathur, Senior Advocate, former President of the Delhi High Court Bar Association.

Understanding the clear legal distinction between discharge and acquittal is essential for accused persons:

Discharge is also not the same as FIR quashing. Quashing is an extraordinary High Court power under Section 528 BNSS / Section 482 CrPC and Article 226. Discharge is an application before the trial court on the police papers or the complaint record.

Under the CrPC, 1973, discharge was written into three places only:

A summons case is, broadly, an offence punishable with imprisonment up to two years. Chapter XX of the CrPC (Sections 251–259) required the Magistrate to state the particulars of the offence and record a plea. There was no provision corresponding to Section 239.

The Supreme Court in Subramanium Sethuraman v. State of Maharashtra, (2004) 13 SCC 324, held that Chapter XX does not contemplate a stage of discharge. Once process is issued and the plea is to be recorded, the Magistrate must follow the summons-trial path to its logical end. K.M. Mathew, which had allowed dropping of proceedings, did not survive that larger-Bench view. Adalat Prasad separately settled that a Magistrate cannot recall summons once issued under Section 204 CrPC.

The Delhi High Court has continued to apply this to pending CrPC summons trials, including in 2025–2026: after cognizance and summons, the Magistrate cannot “discharge” at the Section 251 CrPC stage.

• ✔ In a warrant or Sessions case, the accused could ask the trial court to drop the case on the papers.
• ✔ In a summons case, that door was shut. The remedies were trial, or a High Court petition under Section 482 CrPC / Article 226.
• ✔ Section 258 CrPC allowed a Magistrate to stop proceedings in a summons case instituted otherwise than on complaint, and a release before principal evidence could have the effect of discharge. That did not help the ordinary private-complaint summons case (the bulk of NI Act matters).

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), in force from 1 July 2024, renumbers the old discharge provisions and adds statutory time-limits. The substantive test for Sessions and warrant cases remains the same; the Supreme Court has confirmed CrPC jurisprudence on discharge and charge continues under the BNSS. What is revolutionary is structure — and summons-case discharge:

If, after considering the record and documents and hearing both sides, the Judge finds no sufficient ground for proceeding, the accused shall be discharged, with reasons.
New statutory timeline: The accused may apply for discharge within 60 days from the date of committal.

If, after considering the police report and documents, examining the accused if needed, and hearing both sides, the Magistrate finds the charge groundless, the accused shall be discharged, with reasons.
New statutory timeline: A discharge application is to be filed within 60 days from supply of copies of the police papers under Section 230 BNSS.

After the complainant’s evidence, if no case is made out which, if unrebutted, would warrant conviction, the Magistrate shall discharge the accused, recording reasons.

Section 274 still requires the Magistrate, when the accused appears, to state the particulars of the offence and ask whether the accused pleads guilty or has a defence. A formal charge is still not necessary.

For an extended legal commentary on this landmark reform, read our in-depth blog analysis: Filing Discharge Applications in Summons Cases: A Game-Changing Yet Ambiguous Reform Under BNSS 2023.

Section 281 BNSS (old Section 258 CrPC) continues the power to stop proceedings in a summons case instituted otherwise than on complaint, where release before principal evidence still operates as discharge.

Which code applies depends on whether the proceeding is saved under the BNSS repeal-and-savings clause. Cases that began under CrPC still run on CrPC chapters (summons discharge remains unavailable before the Magistrate; remedy is in the High Court). For BNSS summons trials, Section 274 is the direct provision to invoke.

The court does not hold a mini-trial at this stage. It does not weigh whose witness will be believed. The settled judicial tests — still binding under BNSS — are:

• ✔ Prima Facie Case – Taken at face value, do the police papers / complaint and documents disclose the statutory ingredients of the offence?
• ✔ Sufficient Ground / Groundless – Is there sufficient ground to proceed (Sessions) or is the charge groundless (warrant / now summons under Section 274)?
• ✔ Sterling Quality Evidence – Defence documents of sterling quality may be looked at in a narrow class of cases. Disputed facts are for trial. Strong suspicion may justify a charge; mere suspicion or absence of ingredients warrants discharge.

If discharge is refused and charge is framed, the next legal avenues are criminal revision, a petition under Section 528 BNSS / Section 482 CrPC before the Delhi High Court, or trial.

A massive volume of Delhi Magistrate work is summons-triable: IPC / BNS offences punishable up to two years, and an immense number of Section 138 NI Act cheque bounce complaints.

Under the CrPC, a company director or signatory who argued “this complaint discloses no offence / I am not a vicariously liable Section 141 person” could not get that decided by the Magistrate post-summons. The file inevitably moved to the Delhi High Court.

Under the BNSS, that objection can now be placed directly before the Magistrate under the Section 274 proviso, urging that the accusation is groundless and requesting release having the effect of discharge. If the Magistrate declines, High Court remedies remain.

Advocate Tarun Gaur appears in Sessions discharge (Section 250 BNSS / Section 227 CrPC), Magistrate warrant-case discharge (Section 262 / 268 BNSS; Section 239 / 245 CrPC), and the new summons-case discharge under Section 274 BNSS across Delhi District Courts (Dwarka Courts, Patiala House, Saket, Tis Hazari, Rohini). Where the matter is governed by CrPC and the Magistrate lacks discharge jurisdiction, representation shifts to criminal revisions or quashing petitions in the Delhi High Court.

That disciplined method — trial-court discharge where the statute provides, High Court where it does not — is the hallmark of serious criminal litigation learned under Mohit Mathur, Senior Advocate.

Advocate Tarun Gaur secured All India Rank 1 in AILET LL.M. (NLU Delhi). Connected criminal practice includes:

• ✔ FIR Quashing (Section 528 BNSS / Section 482 CrPC)
• ✔ Criminal Writs under Article 226 / 227
• ✔ Regular and Anticipatory Bail
• ✔ Section 138 NI Act and corporate criminal defence
• ✔ Criminal Law Blog & Legal Commentary (Media Center)