Is subjecting a discharged accused to trial at a distance of time in the interest of justice, particularly when no counter affidavit is filed?
Code of Criminal Procedure, 1973 — s.397 — s.227 — Discharge — Revision against discharge — Interest of justice —
Code of Criminal Procedure, 1973 — s.397 — Discharge — Interest of justice —
Held: Setting aside a discharge to subject the accused to trial at a distance of time is not in the interest of justice, particularly when no counter affidavit has been filed. (¶7)
Code of Criminal Procedure, 1973 — s.397 — Discharge — Decision not in existence —
Held further: A High Court cannot hold that a discharge order lost sight of principles laid down in a decision not in existence on its date. Impugned judgment set aside; appeal allowed. (¶6, 8, 9)
Is subjecting a discharged accused to trial at a distance of time in the interest of justice, particularly when no counter affidavit is filed?
No. Where the accused had been discharged and the revisional Court set aside the discharge after a considerable lapse of time, it was not in the interest of justice to uphold the revisional judgment and subject him to trial at that distance of time, particularly when no counter affidavit had been filed and the fate of the trial qua the other accused was unavailable. [¶4, ¶7]
Can a Court hold that a discharge order lost sight of principles laid down in a decision not in existence on its date?
No. The High Court erred in observing that the Sessions Court had lost sight of the principles laid down in a decision that was not in existence on the date the Sessions Court allowed the application for discharge, though the Supreme Court regarded this error as merely technical and decided the appeal on the interest of justice. [¶5, ¶6, ¶7]
Prepared by the LexStreak Editorial Desk — verify against the judgment.
“The High Court in the impugned judgment recorded as follows:”
“Curiously enough, the decision relied on by the High Court was not in existence on the date the Sessions Court allowed the application for discharge and, therefore, the High Court erred in observing that the Sessions Court has lost sight of the principles laid down therein.”
“Although we see such error as merely technical, even otherwise, we are of the considered opinion that the appellant having been discharged by an order dated 13th September, 1999, it would not in the interest of justice to uphold the impugned judgment and subject him to a trial at this distance of time particularly when no counter affidavit has been filed and, thereby, the fate of the trial qua the other accused is unavailable.”
Headnote & Points of Law
You've used your free headnotes this month
The Court's judgment is below in full, free, as always — that never changes. What needs an account is LexStreak's own work on it: the headnote, the questions this judgment settles, and the passages that decide them. A free account opens all of it again.
Create my free accountFree forever plan · 30 seconds · data stays in India
Leave granted.
The challenge in this appeal is to an order1 dated 11th August, 2025 passed by the High Court of Gujarat at Ahmedabad. By the impugned judgment, the High Court allowed a revisional application2 of the first respondent-State of Gujarat under Section 397 read with Section 2(d) of the Code of Criminal Procedure, 19733 and quashed the order4 under challenge dated 13th September, 1999 discharging the appellant.
It appears from the record that the appellant was serving as a Sipahi at Sabarmati Central Prison. The prosecution case arose out of an incident dated 23rd March, 1998, when a police raid at the premises of Saira Banu Ishaq Ibrahim Shaikh resulted in an exchange of fire and recovery of arms, explosives, ammunition and cellular phones. In connection therewith, Crime No. 22/1998 was registered at Dariapur Police Station inter alia under Section 122 of the Indian Penal Code, 18605. The role attributed to the appellant was that one of the accused persons had given a mobile phone to him for repair while he was discharging his duties at the prison. A chargesheet came to be filed by the investigation officer upon completion of investigation, whereafter the appellant moved an application for discharge under Section 227 of the Cr. PC. Vide order dated 13th September, 1999, the Additional Sessions Judge, Court No.10, Ahmedabad, allowed the application and discharged the appellant, while directing framing of charges against the remaining 4 accused under Sections 122 and 120-B of the IPC, sections 25(1-B), 28, 35 and 36 of the Indian Arms Act, 1959 and Sections 4 and 6 of the Explosive Substances Act, 1908.
The State thereafter preferred a revisional application6 before the High Court of Gujarat. After a considerable lapse of time, the High Court, vide judgment dated 11th August, 2025, allowed the revision and set aside the appellant’s discharge.
The High Court in the impugned judgment recorded as follows:
“12. *** The trial court has thus gone into the evidence meticulously, entered into a roving inquiry, and has lost sight of the principles laid down in the case of State of Andhra Pradesh versus Golkonda Linga Swamy, reported in (2010) 9 SCC 368, where it is held that it is immaterial whether the case is based on direct or circumstantial evidence and the charge can be framed if there are materials showing the possibility about commission of the offence by the accused as against certainty. ***”
Curiously enough, the decision relied on by the High Court was not in existence on the date the Sessions Court allowed the application for discharge and, therefore, the High Court erred in observing that the Sessions Court has lost sight of the principles laid down therein.
Although we see such error as merely technical, even otherwise, we are of the considered opinion that the appellant having been discharged by an order dated 13th September, 1999, it would not in the interest of justice to uphold the impugned judgment and subject him to a trial at this distance of time particularly when no counter affidavit has been filed and, thereby, the fate of the trial qua the other accused is unavailable.
The impugned judgment, thus, stands set aside.
The appeal is, accordingly, allowed.
Pending application(s), if any, stand disposed of. ………..……………………………J. (DIPANKAR DATTA) …….……..…………………………J. (SHEEL NAGU) NEW DELHI; OCTOBER 05, 2026.
Is non-payment of a part of the sale price a ground for cancellation of a registered Sale Deed once title has passed?
2020 INSC 450 · Supreme Court of India
Does the burden to prove that property is joint property of a Hindu Undivided Family lie on the person who alleges it?
2020 INSC 327 · Supreme Court of India
Can a confession statement be used to frame charges against an accused in the absence of any other evidence?
CRL RC.2194/2023 · Madras High Court
The Supreme Court and the Madras High Court decide something every day. Read one a day.
A free account gets you the day's judgments in your practice areas, a reading streak, and folders to keep what matters.
Start reading freeOne judgment a day. That's the whole habit.
LexStreak turns the Supreme Court's and the Madras High Court's output into a five-minute daily read for advocates — plain-language headnotes, the questions each judgment settles, and the full text when you need it.
Free forever plan · 30 seconds · data stays in India
Headnote and questions prepared by the LexStreak Editorial Desk · Report an error · Privacy