Discharge Application Filed Despite Clear CCTV Evidence — What Victims Can Do

One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.

Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.

My clients, a family from Gomti Nagar, Lucknow, came to me completely exhausted with the system. The incident had taken place around 18 February 2024. A neighbour, whom we'll call Devraj Tiwari, was caught on CCTV committing a serious offence against the family — and the audio captured him explicitly threatening to harm them. The police had registered an FIR and a chargesheet was filed within the statutory period. Everything seemed to be moving correctly.

But it wasn't. Almost a year passed and the trial court had still not framed charges. The family had approached a local advocate in Lucknow first, who suggested writing a letter to the Chief Justice directly describing the judge as "biased" — which is exactly the kind of advice that can damage a complainant's case rather than strengthen it. When they discovered that this advocate too may have had undisclosed interests in the matter, they changed their counsel. Even then, the inertia at the district court level persisted, and the accused filed a discharge application despite clear, prima facie evidence on record.

That's when they approached Advocate Sudhir Rao. The strategy shifted immediately. Instead of informal letters, a properly drafted writ petition was filed before the Allahabad High Court under Article 227 of the Constitution read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeking a direction to the trial court to frame charges within a time-bound period. The High Court, taking note of the unreasonable delay and the material on record, issued directions accordingly. The discharge application filed by Devraj Tiwari was opposed with detailed written submissions grounded in the standard laid down in Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4. The matter moved forward.

Advice in Such Cases

Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation to come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Don't approach the court informally: Writing letters to Chief Justices alleging bias, without a formal petition on record, can backfire seriously. Any grievance against a judge's conduct must be channelled through proper supervisory jurisdiction — Article 227 petitions, transfer applications, or complaints to the High Court's vigilance wing. Frankly, informal letters tend to do more harm than good and give the other side ammunition to paint the complainant as a troublemaker.

Oppose the discharge application immediately: A discharge application, even in a prima facie case, must be contested with detailed written submissions citing relevant case law. Don't assume the court will reject it automatically. File a proper reply on merits. And here's the thing — courts do occasionally grant discharge where the complainant's side hasn't put anything on record, simply because nobody bothered to oppose it properly.

Engage an advocate with domain-specific experience: Criminal trial matters involving stalled charge-framing and supervisory jurisdiction of High Courts require procedural precision that a general practitioner may not be fully equipped to handle. Advocates who regularly appear in criminal matters at the High Court level know the specific reliefs available and how to frame them convincingly.

Applicable Sections of Law

• Section 232 BNSS — Discharge of accused; the standard for discharge requires the court to consider whether a prima facie case exists. As held in Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4, the court is not to act as a mini-trial at this stage.
• Section 251 BNSS — Framing of charges; once cognizance is taken and sufficient material exists, charges must be framed without undue delay.
• Section 528 BNSS — Inherent powers of the High Court to prevent abuse of process and secure ends of justice, including issuing directions to subordinate courts.
• Article 227, Constitution of India — Supervisory jurisdiction of the High Court over all subordinate courts and tribunals within its territory, used to direct trial courts to act within a reasonable timeframe.

Punishment and Penalties

The applicable punishment depends on the specific offences charged. Where the accused is charged with criminal intimidation under Section 351 BNS, the punishment extends up to two years' imprisonment, or fine, or both — and up to seven years where the threat is to cause death or grievous hurt. This offence is cognizable and non-bailable in aggravated forms. Where physical assault is also alleged, Section 115 BNS (voluntarily causing hurt) provides for imprisonment up to one year or fine up to Rs. 10,000, or both. The offences, depending on severity, may be non-compoundable, meaning the State is expected to prosecute regardless of private settlement.

Jurisdiction — Where to File the Case

The trial of such offences ordinarily lies before the Judicial Magistrate First Class (JMFC) having territorial jurisdiction over the area where the offence was committed. For supervisory relief against a stalled trial, a petition under Article 227 before the jurisdictional High Court is the appropriate remedy. And here's the thing — jurisdiction isn't merely procedural. Filing in the wrong court can result in dismissal at the threshold, causing months of additional delay. Ensure that the FIR was registered at the correct police station covering the incident location.

What if Police Refuse to File FIR?

• Approach the Superintendent of Police in writing under Section 173(4) BNSS, requesting direction to register the FIR.
• If that fails, file a private complaint directly before the Magistrate under Section 175(3) BNSS.
• The Magistrate, on receipt of such complaint, may direct police investigation or take cognizance directly.
• As a last resort, invoke High Court writ jurisdiction under Article 226 seeking a mandamus to register the FIR, a remedy confirmed in Lalita Kumari v. Government of UP, (2014) 2 SCC 1.

Rights of the Accused

• Right against self-incrimination under Article 20(3) of the Constitution — no accused can be compelled to be a witness against themselves.
• Right to legal representation under Article 22(1) — the accused has the right to consult and be defended by a legal practitioner of their choice.
• Right to be produced before a Magistrate within 24 hours of arrest, as mandated under Article 22(2) and Section 57 BNSS.
• Right to a copy of the FIR and to be informed of the grounds of arrest under Section 47 BNSS.
• Right to a fair trial — including the right to file a discharge application, which must be decided on merits.

Bail Provisions

Whether bail is available depends on the specific BNS sections under which the accused is charged. For offences under Section 351 BNS (criminal intimidation in aggravated form), the offence is non-bailable. Regular bail may be sought under Section 480 BNSS before the trial court, and if refused, under Section 483 BNSS before the Sessions Court or High Court. Anticipatory bail under Section 482 BNSS is available before arrest. Now, before you act, understand that bail conditions typically include surrender of passport, local surety, and periodic reporting. The prosecution must vigorously oppose bail where threats to witnesses are on record — and CCTV evidence of threats is directly relevant to that opposition.

Quashing of FIR / Case

The accused may approach the High Court under Section 528 BNSS seeking to quash the FIR. But quashing isn't a routine remedy. The Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 laid down the limited categories where quashing is appropriate — primarily where no cognizable offence is disclosed on the face of the FIR. Where CCTV footage clearly records the commission of the offence, a quashing petition has very weak prospects. As the complainant, you should file a detailed counter-affidavit opposing any quashing petition with reference to the specific evidence on record.

If You Are the Victim

• Preserve and safeguard all original CCTV footage immediately — obtain certified copies from the police and independently from the source DVR/NVR if possible.
• File a formal written complaint to the High Court's vigilance or inspection wing if you genuinely believe the trial court is not acting impartially — but do this through proper legal channels, not informal letters.
• Monitor all hearing dates personally and ensure your advocate files written notes on each date so there is a paper trail of the court's inaction.
• If the prosecutor appears to be non-cooperative, approach the District Magistrate or the Director of Prosecution under State rules to request reassignment of the case to a different Public Prosecutor.
• Consider filing a petition under Article 227 before the High Court seeking a time-bound direction for framing of charges, supported by the order sheet showing the delay.

Documents You Must Keep Ready

• Aadhaar card and PAN card of all complainants
• Certified copy of the FIR registered at the police station
• Certified copy of the chargesheet filed by police
• Copy of all court orders passed since cognizance, particularly the order sheet reflecting hearing-by-hearing inaction
• Original or certified CCTV footage (video file) and screenshots with timestamps
• Transcript of audio threats captured on CCTV, if prepared
• Copies of any prior complaints made to senior police or judicial officers
• Copy of the discharge application filed by the accused and the reply, if already filed

What Evidence Is Required?

• CCTV footage (primary electronic evidence) — must be produced with a certificate under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) from a person responsible for the device.
• Audio recording of threats — admissible as electronic record; certificate under Section 63 BSA required.
• Eyewitness testimony of persons who witnessed the incident or the accused's conduct.
• Medical records if physical injury was sustained — injury certificates from a government hospital carry more weight.
• The chargesheet and police report — these form part of the record before the Magistrate at the charge-framing stage.
• Call detail records (CDRs) if threats were also communicated over phone.
• Contemporaneous written complaints made to police or other authorities, which corroborate the timeline.

How the Police Behave in Such Cases

Make no mistake — police attitude in cases involving local accused with influence can be a real obstacle. Even after a chargesheet is filed, police witnesses may remain absent on hearing dates, delaying examination. Investigating officers sometimes become difficult to summon before the trial court. In cases with strong electronic evidence like CCTV footage, there's occasionally a tendency at the station level to downplay or misclassify offences at the FIR stage itself. Victims must insist on obtaining certified copies of every document from the outset and must follow up directly with the concerned officer's superior if cooperation is withheld.

Timeline of Legal Process

• FIR Registration: Immediate upon complaint — typically the same day if the offence is cognizable.
• Investigation: 60 to 90 days ordinarily; chargesheet must be filed within 60 days for offences triable by Magistrate (Section 193 BNSS), extendable to 90 days in Sessions-triable cases.
• Cognizance by Court: Within days to a few weeks of chargesheet filing.
• Discharge Application (if filed): Typically decided within 2–6 months depending on court load.
• Framing of Charges: Should ideally occur within 60 days of cognizance; delays beyond 6–12 months are the basis for a High Court petition.
• Trial (evidence stage): 1–3 years depending on witness availability and court schedule.
• Judgment: After arguments conclude; typically within 30–60 days of final arguments.
• Appeal: Sessions Court or High Court; 1–3 additional years at appeal stage.

How Long Will the Investigation Take?

In this type of case, where CCTV footage clearly records the offence and the accused is identified, the investigation should be relatively short. Police are ordinarily required to file the chargesheet within 60 days under Section 193 BNSS for Magistrate-triable offences. Where the chargesheet is already on record, as in this case, the investigative phase is closed. The focus now shifts entirely to the trial court's handling of the charge-framing stage, which should not extend beyond a few months of cognizance.

Advocate Sudhir Rao, Supreme Court of India