Law Web: Kerala HC: The Sessions or Special Court Has Discretion U/ S. 250 of BNSS to Consider Discharge application of accused Even After Prescribed Limit Of 60 Days

It is discernible that in Section 250 of BNSS, Sub-section (1) provides that the accused may prefer an application for discharge within a period of sixty days from the date of commitment of the case under Section 232.

Sub-section (1) of Section 250 of BNSS is a new provision

which prescribes a period of sixty days to prefer an application

by the accused for discharge from the date of committal of the

case. In fact, no such time limit fixed in Section 227 of Cr.P.C.

But it is noticed that there is lack of clarity or legislative

vacuum in the matter of starting point of sixty days in Section

250(1) of BNSS. It is true that in cases where the procedure of

committal is necessary, the statutory wordings in Section

250(1) of BNSS regarding the starting point of sixty days, is so

clear. But, now a days many Special Courts, viz., Special Court

under the Narcotic Drugs and Psychotropic Substances Act, the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, Special Court under the Protection of Children

from Sexual Offences Act, etc., proceedings are going before

the Special Court during the crime stage itself where committal

doesn't arise. In relation to such cases, the starting point to

count sixty days period to file discharge petition as provided in

Section 250(1) of BNSS lacks clarity or the same is a legislative

vacuum. In this context, it is relevant to refer Section 330 of

BNSS, a pari materia provision to Section 294 of Cr.P.C. Section

330(1) provides that where any document is filed before any

Court by the prosecution or the accused, the particulars of

every such document shall be included in a list and the

prosecution or the accused or the advocate for the prosecution

or the accused, if any, shall be called upon to admit or deny the

genuineness of each such document soon after supply of such

documents and in no case later than thirty days after such

supply. First proviso to Section 330(1) stipulates that the Court

may, in its discretion, relax the time limit with reasons to be

recorded in writing. The notable distinction is that in Section

330(1) of BNSS, the time limit is preceded by the word 'shall'

and in Section 250(1) of BNSS, the time limit is preceded by the

word 'may'. Thus, it is perceivable that when the legislature

uses the word 'shall', the same is mandatory and when the

word 'may' is used, the same is discretionary. The First proviso

to Section 330(1) of BNSS has been engrafted by the legislature

and the time limit of thirty days is preceded by the word 'shall'

makes the provision mandatory. Thus proviso to relax time

also was incorporated. In Section 250(1) of BNSS, the

legislature used the word 'may' which gives discretion to the

court to relax the time limit and therefore, no proviso to relax

the time limit was engrafted by the legislature. Therefore, even

after expiry of sixty days, a petition for discharge can be

considered by the court since the time limit is not mandatory

and is only directory. If so, the intent of the legislature to avoid

filing of discharge petition even at a belated stage in the strict

sense could not be achieved. {Para 9}

10. But the crucial aspect is lack of clarity or legislative vacuum with regard to the starting point of sixty days to file discharge petition as per Section 250(1) of BNSS, in sessions cases where no committal is possible. In this connection, it is apropos to refer Section 262(2) of BNSS, deals with discharge of an accused in warrant trial cases which is pari materia to Section 239 of Cr.P.C. Section 262(1) is a new provision equivalent to Section 250(1) of BNSS. As per Section 262(1) of BNSS, the accused in a warrant trial case may prefer an application for discharge within a period of sixty days from the date of supply of copies of documents under Section 230.

Be it so, in sessions cases where committal doesn't arise,

because of the original jurisdiction conferred upon the Special

Courts referred herein above, the principle in Section 262(1) of

BNSS can be followed till the legislature makes the starting

point in such cases with clarity and certainty, by appropriate

amendment to Section 250(1) of BNSS. Thus in such cases, the

starting point of sixty days can be counted from the date of

supply of copies of documents.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.REV.PET NO. 879 OF 2024

SAJITH Vs STATE OF KERALA

Coram: MR. JUSTICE A. BADHARUDEEN

Citation: 2024:KER:67663

Dated: 3rd day of September, 2024

This Criminal Revision Petition has been filed under

Sections 438 and 442 of the Bharatiya Nagarik Suraksha

Sanhita, 2023 ('BNSS' for short hereinafter) by the

petitioner/sole accused in S.C No.1236/2023 on the files of

the Fast Track Special Court Court, Kollam, challenging the

order in Crl.M.P.No.292/2024 dated 24.07.2024, whereby the

application for discharge moved by the petitioner was

dismissed by the learned Special Judge.

2. Heard the learned counsel for the petitioner

and the learned Public Prosecutor on admission. Perused the

order impugned.

3. The prosecution allegation herein is that the

accused offered to marry the victim after maintaining a love

affair. Thereafter, the accused took the victim at a rental

house at Vavakunnu, Parippally and subjected her to sexual

intercourse on 21.03.2023 promising to marry her. Again, she

was subjected to sexual intercourse on 05.03.2023, repeating

the promise of marriage. On this premise, prosecution alleges

commission of offence punishable under Section 376(2)(n) of

the Indian Penal Code ('IPC' for short hereinafter).

4. In this matter, FIR was registered vide Crime

No.321/2023 of Parippally Police Station. On investigation,

final report filed justifying the allegation and now the matter

has been pending as S.C.No.1236/2023 on the files of the Fast

Track Special Court, Kollam. Before start of trial, the

petitioner filed an application under Section 227 of the Code

of Criminal Procedure ('Cr.P.C.' for short hereinafter) seeking

discharge. The learned Special Judge, after analysing the

prosecution materials, found that going by the statements

given by the victim as CW1, the house owner as CW2 and

other witnesses cited in the final report filed under Section

173(2) of Cr.P.C., there are materials to go for trial and

accordingly, the discharge petition was dismissed.

5. While assailing the order, the learned counsel

for the petitioner/accused reiterated the contention before

the trial court affirming that no materials prima facie

available to find commission of offence punishable under

Section 376(2)(n) by the accused and therefore, the order

impugned would require reversal.

6. The learned Public Prosecutor fervently

opposed the prayer, pointing out prosecution materials,

which would prima facie suggest offence under Section

376(2)(n) of IPC, warranting trial of the accused.

7. The materials to be considered at the time of

discharge have been stated in Section 227 of Cr.P.C. The same

reads as under;

227. Discharge - If, upon consideration of the

record of the case and the documents submitted

therewith, and after hearing the submissions of the

accused and the prosecution in this behalf, the

Judge considers that there is not sufficient ground

for proceeding against the accused, he shall

discharge the accused and record his reasons for so

doing.

8. Section 250(2) is the pari materia provision in

the BNSS corresponding to Section 227 of Cr.P.C. Section 250(1)

is a new provision introduced in the BNSS. Sections 250(1) and

(2) read as under;

250. Discharge - (1) The accused may prefer an

application for discharge within a period of sixty

days from the date of commitment of the case

under section 232.

(2) If, upon consideration of the record of the case

and the documents submitted therewith, and after

hearing the submissions of the accused and the

prosecution in this behalf, the Judge considers

that there is not sufficient ground for proceeding

against the accused, he shall discharge the

accused and record his reasons for so doing.

9. It is discernible that in Section 250 of BNSS,

Sub-section (1) provides that the accused may prefer an

application for discharge within a period of sixty days from the

date of commitment of the case under Section 232.