A discharge petition cannot be considered under Section 239 CrPC after charges are framed.

The petitioner, Accused No.1 in Crime No.331 of 2022, was prosecuted for offences under Sections 294(b), 323, 355 and 506(ii) of the IPC and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002.

After the police filed the final report, cognizance was taken in C.C.No.438 of 2022 and copies were furnished to the petitioner on 28 December 2022.

On 6 January 2023, he filed a discharge petition under Section 239 Cr.P.C.; it was returned on the same day for effecting service on the Public Prosecutor.

On that date, charges were framed, read over and explained to him, and he pleaded not guilty.

The petition was re-presented on 19 January 2023 and again returned on 27 January 2023 as not maintainable since charges had already been framed.

It was ultimately numbered as Crl.M.P.No.2008 of 2023 on 27 February 2023.

The Magistrate dismissed it as not maintainable, and the Principal Sessions Judge dismissed the petitioner’s revision.

The petitioner thereafter invoked Section 528 of the BNSS before the High Court.

Whether a discharge petition under Section 239 Cr.P.C., which had been returned for curing a procedural defect and was re-presented only after charges had been framed, could thereafter be considered on merits.

Whether the trial Court was precluded from framing charges under Section 240 Cr.P.C. merely because the accused had earlier presented, but no longer had pending on the Court’s file, a discharge petition.

Whether the orders rejecting the discharge petition as not maintainable warranted interference under Section 528 of the BNSS.

The Court applied Section 239 Cr.P.C., which permits discharge of an accused in a warrant case instituted on a police report where the charge is groundless, and Section 240 Cr.P.C., which requires the Magistrate to frame charges when there is ground for presuming that the accused has committed an offence.

The governing principle applied was that a trial Court is precluded from framing charges only when a discharge petition is actually pending before it; once charges have been framed, the accused cannot ordinarily revive or seek adjudication of a discharge petition that was not pending on the date of framing charges.

The Court also applied the procedural principle that an accused who participated in charge-framing proceedings without objection, pleaded not guilty, and did not challenge the framing of charges cannot subsequently seek to reopen that stage.

The petitioner’s discharge petition was returned on 6 January 2023 and therefore was not pending on the trial Court’s file when charges were framed.

The petitioner participated in the charge-framing proceedings, answered the Court’s questions and pleaded not guilty, but did not inform the Court that he claimed a right to have the returned petition considered before charges were framed.

The petition was re-presented only on 19 January 2023, nearly two weeks after framing of charges, and the petitioner did not challenge the charge order itself.

Applying Sections 239 and 240 Cr.P.C., the High Court held that the trial Court was not barred from framing charges because no discharge petition was pending before it at that time.

Permitting the petitioner to seek discharge after charges had been framed would impermissibly “put the clock back” and reopen a procedural stage in which he had already participated without objection.

Since the petitioner had participated in the framing of charges and had not challenged the charge order, the trial Court and the Revisional Court correctly rejected the petition.

The Criminal Original Petition was dismissed, the connected miscellaneous petition was closed, and the petitioner’s personal appearance before the trial Court was dispensed with unless specifically directed otherwise.