Premature discharge under criminal procedure law was impermissible, but retrial was refused to avoid serious prejudice on the facts

Discharge under section 245(2) of the Code of Criminal Procedure cannot be ordered before evidence is recorded under section 244, so a trial court lacks jurisdiction to discharge accused at that stage; the discharge orders were therefore set aside. However, remand for retrial was declined because the long delay, settlement-related proceedings, full payment of the assessed amount, the clause contemplating later withdrawal of prosecution, and the death of some accused showed that a fresh trial would cause serious and irreparable prejudice on the peculiar facts.

---

---

Issues: (i) Whether the accused could be discharged under section 245(2) of the Code of Criminal Procedure, 1973 before any evidence had been recorded under section 244 of that Code; (ii) whether, after setting aside the discharge orders, the cases should be remitted for retrial.

Issue (i): Whether the accused could be discharged under section 245(2) of the Code of Criminal Procedure, 1973 before any evidence had been recorded under section 244 of that Code.

Analysis: The power of discharge under section 245 of the Code becomes available only after evidence under section 244 has been taken. As no evidence had been let in by the complainant, the trial court acted without jurisdiction in ordering discharge. The settlement between the parties did not authorise a discharge at that stage.

Conclusion: The discharge orders were illegal and were set aside.

Issue (ii): Whether, after setting aside the discharge orders, the cases should be remitted for retrial.

Analysis: Although the discharge orders were found to be erroneous, the Court considered the long lapse of time, the settlement proceedings, full payment of the assessed amount, the clause contemplating later consideration of withdrawal of prosecution, and the death of some accused who could have explained the seized documents. On these facts, remand for retrial would cause serious and irreparable prejudice to the accused.

Conclusion: The cases were not remitted for retrial.

Final Conclusion: The impugned discharge orders were held to be without jurisdiction, but the revisions were finally disposed of without remand because retrial would have caused undue prejudice on the peculiar facts of the case.

Ratio Decidendi: Discharge under section 245(2) of the Code of Criminal Procedure, 1973 cannot be ordered before evidence is recorded under section 244, and remand may be declined where the peculiar facts show that retrial would cause serious prejudice despite the illegality of the discharge.

---