The difference between discharge and acquittal lies in the stage at which each happens and how final it is: a discharge releases the accused before any charge is framed, because the material is too weak to justify a trial, while an acquittal is a not-guilty verdict recorded after the trial has run its course. Discharge is governed by Sections 227, 239 and 245 of the Code of Criminal Procedure, 1973, which become Sections 250, 262 and 268 of the Bharatiya Nagarik Suraksha Sanhita, 2023; acquittal is governed by Sections 232, 248 and 255 of the CrPC, now Sections 255, 271 and 278 of the BNSS. A discharged accused can, in defined circumstances, be proceeded against again, whereas an acquittal attracts the bar against double jeopardy and generally cannot be reopened except through an appeal against acquittal. That difference in finality, more than the labels, decides what the prosecution can do next.
This article sets out the difference between discharge and acquittal under the CrPC and the BNSS, the sections that govern each, the legal test the court applies, and the routes to challenge either order.
The two are easy to confuse because both end with the accused walking free without a conviction. The consequence, however, is not the same. A discharge says the case never deserved a trial; an acquittal says the case was tried and the prosecution did not prove it.
The confusion has grown since 1 July 2024, when the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced the Code of Criminal Procedure, 1973 (CrPC). The BNSS kept the scheme of discharge and acquittal almost intact but renumbered every provision, so the same rule now sits under a different section number. It also fixed a timeline for filing a discharge application, which the old Code did not have.
For an accused, a defence lawyer, or a judiciary aspirant, the distinction decides practical questions: which section to move under, whether the order can be challenged by appeal or only by revision, and whether the person can be brought back to court after the case ends.
What is the difference between discharge and acquittal?
The difference between discharge and acquittal turns on the stage of the case, the standard the court applies, whether the order is a verdict on guilt, and whether the accused can be tried again. A discharge comes early, before the charge is framed, when the court finds no sufficient ground to put the accused on trial. An acquittal comes at the end, after the charge has been framed and the evidence heard, when the prosecution has failed to prove guilt beyond reasonable doubt.
The two also differ in what they decide. A discharge is not a finding that the accused is innocent; it holds only that the case is too weak to proceed. An acquittal is a judicial verdict of not guilty, entered after the court has weighed the evidence on the merits.
That difference feeds into everything downstream. Because a discharge is not a verdict, it does not attract the full protection against a second trial, and the order is challenged by revision rather than appeal. Because an acquittal is a verdict, it attracts the bar of double jeopardy, and it can be undone only by an appeal against acquittal. Where each order sits in the sequence of a case is covered in the guide on the stages of a criminal trial under the BNSS.
Difference between discharge and acquittal: CrPC vs BNSS
The two ways a criminal case can end without a conviction
Stage of the case
Before the charge is framed
After the charge is framed, at or after trial
Standard applied
No sufficient ground to proceed; grave suspicion
Guilt not proved beyond reasonable doubt
Finding on guilt
No verdict; case too weak to try
A verdict of not guilty on the merits
Sections (CrPC to BNSS)
227, 239, 245 to 250, 262, 268
232, 248, 255 to 255, 271, 278
Can the accused be tried again?
Possible, on revision or fresh evidence
Barred by double jeopardy: Article 20(2); Section 300 to 337
How the order is challenged
Revision: Section 397, 401 to 438, 442
Appeal against acquittal: Section 378 to 419
Source: Code of Criminal Procedure, 1973; Bharatiya Nagarik Suraksha Sanhita, 2023iPleaders
When can an accused be discharged under CrPC and BNSS?
An accused can be discharged when the court, before framing any charge, finds no sufficient ground for proceeding against the person or holds the charge to be groundless. Discharge is a pre-trial filter. It exists so that a person is not made to stand a full trial on material that, even if believed, does not point to an offence.
The Code of Criminal Procedure, 1973 provided for discharge in three places, depending on how the case reaches the court: a sessions trial, a warrant case started on a police report, or a warrant case started on a private complaint. The wording of the standard differs slightly in each, but the idea is the same, a threshold check before the trial proper begins. The BNSS has carried all three across. For the underlying grounds and the case law, the detailed treatment is in the guide on discharge under the CrPC.
Discharge in a sessions trial: Section 227 CrPC and Section 250 BNSS
In a sessions trial the power to discharge sits in Section 227 of the Code of Criminal Procedure, 1973, now Section 250 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The judge must discharge the accused if, after considering the record and the documents and hearing both sides, there is no sufficient ground for proceeding against the accused. Section 250(2) of the BNSS reproduces the old test almost word for word.
What the BNSS adds is a timeline. Section 250(1) requires the accused to move the discharge application within sixty days from the date of commitment of the case, a limit the CrPC never fixed. If the case survives, the framing of charge then follows under Section 251 of the BNSS.
Discharge in warrant and complaint cases: Sections 239 and 245 CrPC
For a warrant case instituted on a police report, the power to discharge is in Section 239 of the CrPC, now Section 262 of the BNSS. The magistrate discharges the accused if the charge is found groundless after considering the police report and documents and hearing the parties. Here too the BNSS adds a sixty-day window, running from the supply of documents to the accused, for filing the application.
For a warrant case instituted otherwise than on a police report, meaning on a private complaint, the power is in Section 245 of the CrPC, now Section 268 of the BNSS. The difference is one of timing. In a complaint case the magistrate can discharge the accused only after taking the complainant’s evidence, if no case is made out which, if left unrebutted, would warrant a conviction.
How much suspicion is enough to avoid a discharge?
Grave suspicion, not mere suspicion, is what keeps a case alive at the discharge stage. The court does not ask whether the accused is guilty; it asks whether the material discloses a strong enough suspicion to justify a trial. The leading statement of the test is in Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4, where the Supreme Court laid down four propositions for Section 227.
Under that ruling, the judge has the power to sift and weigh the evidence for the limited purpose of finding whether a prima facie case exists. Where the material discloses grave suspicion that is not properly explained, the court is justified in framing a charge and proceeding; where the suspicion is not grave, the accused should be discharged. The judge is not to act as a mere post office for the prosecution, but must weigh the broad probabilities of the case.
The threshold is deliberately low for the prosecution at this stage. In State of Bihar v. Ramesh Singh, (1977) 4 SCC 39, the Court held that a strong suspicion is enough to frame a charge, and the judge is not to see whether the trial will end in conviction. What the court may look at was settled in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, which held that the discharge decision is taken on the material produced by the prosecution, and confirmed that a discharge is not the same as an acquittal. These principles were consolidated for later benches in Sajjan Kumar v. CBI, (2010) 9 SCC 368. The full statutory scheme is set out in the note on Section 227 of the CrPC.
When does a criminal court acquit the accused?
A criminal court acquits the accused when the prosecution fails to prove guilt beyond reasonable doubt. Unlike a discharge, an acquittal comes after the charge has been framed and the trial has been held, or at least after the prosecution has led its evidence. It is a verdict on the merits, and the benefit of every reasonable doubt goes to the accused.
The acquittal provisions track the type of trial, and the BNSS has renumbered each. In a sessions trial, Section 232 of the Code of Criminal Procedure, 1973, now Section 255 of the Bharatiya Nagarik Suraksha Sanhita, 2023, lets the judge record an acquittal after the prosecution evidence if there is no evidence that the accused committed the offence. If the trial goes the full distance, the final judgment of acquittal or conviction is delivered under Section 235 of the CrPC, now Section 258 of the BNSS. In a warrant case, the acquittal falls under Section 248(1) of the CrPC, now Section 271(1) of the BNSS; in a summons case, under Section 255 of the CrPC, now Section 278 of the BNSS.
The renumbering hides a trap worth flagging. Section 255 of the CrPC dealt with acquittal in a summons case, but Section 255 of the BNSS deals with the no-evidence acquittal in a sessions trial. The same number now points to a different kind of trial, which is why every reference should name the Act, not just the section. For the grounds and the case law on when an acquittal is recorded, the fuller treatment is in the guide on acquittal under the CrPC.
Honourable acquittal versus acquittal on the benefit of the doubt
Not every acquittal carries the same weight outside the courtroom. Courts have drawn a distinction between an honourable acquittal, where the accused is cleared because the charge was found false or wholly unproved, and an acquittal on the benefit of the doubt, where the accused is let off because the prosecution’s evidence fell just short of the standard. The statute does not use these labels; they come from service and employment jurisprudence.
The distinction rarely matters for the criminal case itself, since an acquittal ends the trial either way. It can matter later, most often when a government employer examines whether a past prosecution affects a candidate’s suitability. That practical angle is taken up in the section on records and employment below.
Can a discharged or acquitted person be tried again?
An acquitted person generally cannot be tried again for the same offence on the same facts, while a discharged person can be, in defined circumstances. This is the sharpest practical difference between the two, and it flows directly from the fact that only one of them is a verdict.
An acquittal attracts the rule against double jeopardy. Article 20(2) of the Constitution says that no person shall be prosecuted and punished for the same offence more than once, and the same protection, in a wider statutory form, sits in Section 300 of the Code of Criminal Procedure, 1973, now Section 337 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Once a competent court has acquitted a person, that person cannot be tried again for the same offence, nor on the same facts for any other charge that could have been brought at the first trial. The doctrine is worked through in the note on Section 300 of the CrPC.
A discharge does not carry that protection, because there was no trial and no verdict. The order can be set aside by a higher court in revision, and the accused can then be put on trial. In a police-report case, if further investigation produces fresh evidence, the prosecution is not barred in the way that an acquittal would bar it. This is what the Supreme Court meant in the Debendra Nath Padhi ruling when it held that a discharge is not an acquittal: it ends the present proceeding without deciding the accused innocent, and it does not close the matter for good.
Discharge vs acquittal on the trial timeline
Where each exit sits, and how each is challenged
FIR and investigation
The police investigate and file a police report, or a private complaint is made to the court.
Discharge decision
The court checks whether there is a case to try, under Section 227, 239 or 245 CrPC (250, 262, 268 BNSS). No charge has been framed yet.
If discharged: the case ends without a verdict on guilt. Challenge is by revision, and the accused can be tried again on fresh evidence.
Charge is framed
The court frames the charge and the trial proper begins. From this point a discharge is no longer possible.
Prosecution and defence evidence
Witnesses are examined and cross-examined. The prosecution must prove guilt beyond reasonable doubt.
Acquittal or conviction
If guilt is not proved, the court records an acquittal under Section 232, 248 or 255 CrPC (255, 271, 278 BNSS).
If acquitted: a verdict of not guilty on the merits. Challenge is only by an appeal against acquittal, and re-trial is barred by double jeopardy.
The core split: a discharge happens before the charge and is not a verdict, so it can be reopened; an acquittal happens after trial and is a verdict, so double jeopardy protects it (Article 20(2); Section 300 CrPC to 337 BNSS).
Source: Code of Criminal Procedure, 1973; Bharatiya Nagarik Suraksha Sanhita, 2023iPleaders
How do you challenge a discharge or an acquittal?
A discharge is challenged by revision, because no appeal lies against a discharge order, whereas an acquittal is challenged by a formal appeal against acquittal. The route matters, because the two powers are exercised very differently.
Against a discharge, the aggrieved party, usually the State or the complainant, moves the revisional court. The power to call for the record sits in Section 397 of the Code of Criminal Procedure, 1973, and the High Court’s revisional power in Section 401, now Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The High Court can also use its inherent power under Section 482 of the CrPC, now Section 528 of the BNSS. Revision is a narrower remedy than appeal: the court checks the legality and propriety of the order, and does not rehear the evidence as if trying the case afresh.
Against an acquittal, the remedy is an appeal. The State’s appeal against an order of acquittal lies under Section 378 of the CrPC, now Section 419 of the BNSS, and it can be filed only with the leave of the High Court. A victim also has a right to appeal against an acquittal under the proviso to Section 372 of the CrPC, now the proviso to Section 413 of the BNSS, a route explained in LawSikho’s note on the victim’s right to appeal under Section 413 BNSS.
Even on appeal, an acquittal is hard to disturb. In Chandrappa v. State of Karnataka, (2007) 4 SCC 415, the Supreme Court held that although the appellate court has full power to review and re-appreciate the evidence, it should be slow to interfere, because an acquittal strengthens the presumption of innocence the accused already carried. That double presumption is why appeals against acquittal succeed less often than appeals against conviction.
Does a discharge or acquittal affect a government job or your record?
Neither a discharge nor an acquittal is a conviction, so neither leaves the person with a record of punishment. A person who has been discharged or acquitted is, in law, not a convict and cannot be treated as one. The difference between the two surfaces mainly in background checks and public employment, not in the criminal case.
For most purposes the two are equivalent: the case is over and there is no finding of guilt. Where a government employer runs a character and antecedents verification, however, the nature of the closure can be examined. An honourable acquittal, or a discharge that shows the case never had substance, is generally read in the candidate’s favour. An acquittal on the benefit of the doubt is sometimes treated with more caution, because it is not a clean finding of innocence, and the outcome then depends on the recruitment rules and the facts disclosed.
The safer course in any application that asks about past prosecutions is disclosure. Suppressing a case that ended in discharge or acquittal can itself become a ground for action, separate from the original allegation. For the law student or junior litigator studying this distinction as a building block of criminal-defence practice, the broader career picture is set out in Skill Arbitrage’s guide for Indian lawyers looking to get hired by top law firms.
Frequently asked questions
What is the main difference between discharge and acquittal?
The main difference between discharge and acquittal is stage and finality. A discharge is passed before the charge is framed, when the court finds no sufficient ground to proceed, and it is not a verdict on guilt. An acquittal is passed after the charge is framed and the evidence heard, when guilt is not proved beyond reasonable doubt, and it is a verdict of not guilty on the merits.
Can a discharged accused be tried again if new evidence emerges?
Yes, in defined circumstances. A discharge is not a bar against a fresh trial in the way an acquittal is, because there was no trial and no verdict. The order can be set aside in revision, and in a police-report case fresh evidence from further investigation can revive the prosecution.
Is a discharge a clean chit, or does it mean the accused is innocent?
A discharge is not a finding of innocence. It only means the material was too weak to justify putting the accused on trial. It is closer to a threshold failure of the prosecution than to a positive verdict clearing the accused.
Can you appeal against a discharge order, or must you file a revision?
No appeal lies against a discharge order. The remedy is a criminal revision under Section 397 or 401 of the CrPC, now Sections 438 and 442 of the BNSS, or the High Court’s inherent power under Section 482 of the CrPC, now Section 528 of the BNSS.
What is the difference between an honourable acquittal and an acquittal on the benefit of the doubt?
An honourable acquittal is one where the charge is found false or wholly unproved and the accused is fully cleared. An acquittal on the benefit of the doubt is one where the accused is let off because the prosecution’s evidence fell short of the standard. The distinction is not statutory, and it matters mainly in public-employment verification, not in the criminal case.
Which section governs discharge: 227, 239 or 245 of the CrPC?
All three, depending on the trial. Section 227 covers a sessions trial, Section 239 a warrant case on a police report, and Section 245 a warrant case on a private complaint. These become Sections 250, 262 and 268 respectively under the BNSS.
What changed for discharge under the BNSS, 2023?
The BNSS kept the discharge test but renumbered the provisions and added a timeline. A discharge application must now be filed within sixty days, from the date of commitment in a sessions trial under Section 250, and from the supply of documents in a warrant case under Section 262. The CrPC fixed no such limit.
References
Case law
- Chandrappa v. State of Karnataka, (2007) 4 SCC 415
- Sajjan Kumar v. CBI, (2010) 9 SCC 368
- State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 (AIR 1977 SC 2018)
- State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 (AIR 2005 SC 359)
- Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 (AIR 1979 SC 366)
Statutes
- Constitution of India, 1950: Article 20(2)
- Code of Criminal Procedure, 1973: Sections 227, 232, 235, 239, 245, 248, 255, 300, 372, 378, 397, 401, 482
- Bharatiya Nagarik Suraksha Sanhita, 2023: Sections 250, 251, 255, 258, 262, 268, 271, 278, 337, 413, 419, 438, 442, 528
Secondary sources
Disclaimer
This article is for informational and educational purposes only and does not constitute legal advice. Whether a discharge or an acquittal is available, and how either order can be challenged, turns on the specific facts, the offence charged, and the stage of the case. Anyone facing a criminal prosecution should consult a qualified criminal lawyer.
