A Sessions Court cannot record pre-charge evidence while deciding an application for discharge.

The petitioners were charge-sheeted for offences under Sections 306, 498A and 114 of the Indian Penal Code.

While their discharge application was pending, the Sessions Court, acting on an application by the Public Prosecutor, ordered the post-mortem doctor to be examined before charge was framed.

The stated purpose was to determine whether the case warranted a charge under Section 302 or Section 306 IPC, given that the post-mortem report recorded death by complete hanging.

The doctor’s evidence was recorded at Exhibit 18.

The petitioners challenged the order dated 13 January 2020 permitting that evidence to be recorded.

1. Whether a Sessions Court may record pre-charge evidence while deciding an application for discharge.

2. Whether the post-mortem doctor’s evidence recorded at that stage could be retained on the trial court record.

Under Sections 227 and 228 of the Code of Criminal Procedure, at the discharge or charge-framing stage the Sessions Judge considers the case record and documents submitted with it, hears the prosecution and accused, and decides whether there is sufficient ground to proceed or ground to presume that an offence has been committed.

The Code prescribes no procedure for recording pre-charge evidence at the stage of deciding discharge; the court’s consideration at that stage is confined to material collected during investigation and filed with the charge-sheet. If subsequent material warrants it, a charge may be altered at the appropriate stage.

The Sessions Court ordered the doctor’s examination to clarify whether the death called for a charge under Section 302 or Section 306 IPC.

The High Court held that this inquiry could not be undertaken by recording evidence while deciding discharge: the Sessions Court had to determine the application from the investigation material accompanying the charge-sheet, applying Sections 227 and 228 CrPC.

Any later basis for invoking Section 302 could be addressed through alteration of the charge at the appropriate stage.

It directed that the post-mortem doctor’s evidence recorded at Exhibit 18 be discarded from the trial court record.