In Narottam Prusty vs. State of Odisha & Anr. (2025), Justice Aditya Kumar Mohapatra of Orissa High Court, Cuttack delivered a 33-apge long judgement dated September 22, 2025, wherein, it observed that after the Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted and with the introduction of the Bharatiya Nagarika Surakshya Sanhita (BNSS), 2023,the Special Courts trying cases under the POCSO Act should follow a procedure while framing charge against the accused.
It laid down the following procedure:
(i) Since no commitment procedure has been prescribed in the POCSO Act for the cases triable by the Special Court, the date of appearance before the Special Court or the date on which accused was brought before such court for the first time after cognizance of the offence is taken under Section 33(1) of the POCSO Act, 2012 such date shall be treated as the date of commitment for the purpose of Section 250(1) of the BNSS.
(ii) From the date of appearance of the accused/ the date when the accused was brought before the Special Court for the first time;
(a) the accused shall forthwith be provided with the police papers as provided in Section 231 of BNSS, if not already provided.
(b) the accused may prefer an application for discharge within 60 days thereafter under Section 250(1) of the BNSS.
(iii) If the accused does not want to file an application for discharge, such intention shall be given in writing by theaccused in the shape of a memorandum.
(iv) On filing of the memorandum as per clause-(iii), the Special Court shall proceed further to frame charges against the accused.
(v) In the event the accused files an application for discharge as per clause-(ii)(b) herein above, such application shall be considered under Section 250(2) BNSS after providing a
reasonable opportunity of hearing to the accused and the prosecution and the same shall be disposed of forthwith i.e. not later than 60 days from the first date of hearing on charge.
(vi) Unless the accused is discharged under Section 250(2) of BNSS due to lack of sufficient ground to proceed against the accused, the Special Court shall proceed to frame charge against the accused within 60 days from the first date of hearing on charge under Section 251(1)(b) of the BNSS.
The petitioner had filed an application under section 528 B.N.S.S., to invoke the inherent power of the High Court to quash the impugned order dated February 14, 2025 passed by the ADJ-cum-Spl.Judge (POCSO), Jagatsinghpur in a case of 2025 which corresponded to Nuagaon P.S.case of 2025 thereby framing charge against the Petitioner under section 65(2) of B.N.S., 2023 read with Section 6 of POCSO Act.
The petitioner was aggrieved by the procedure adopted by the Special Court under the POCSO Act in supplying police papers and framing charge on the very same day without providing an opportunity to the accused-Petitioner to file a discharge application. The Petitioner approached the High Court. Since the issue involved in the application was a pure question of applicability of the procedural law to the facts of the case, the same was taken up for hearing and adjudication of such issue in presence of State Counsel.
The counsel for the Petitioner contended that on the basis of the F.I.R. dated 14.02.2025 Nuagaon P.S. case was registered for commission of offence punishable under section 65(2) of B.N.S, 2023 read with Section 6 of POCSO Act. The Petitioner was shown as the sole accused in the sF.I.R. He contended that in connection with this case, the Petitioner was arrested and remanded to custody and to face trial in the case. He submitted that the impugned order dated April 21, 2025 passed by the ADJ-cum-Spl Judge (POCSO), Jagatsinghpur was unsustainable in law, inasmuch as the Police papers were supplied to the Petitioner on April 21, 2025 while accepting the vakalatnama of the conducting counsel for the Accused-Petitioner. Although the first part of the order dated April 21, 202 reveals that the vakalatnama of the conducting counsel was accepted, the accused was provided with Police Papers and remanded to custody till May 12, 2025, however, later on the very same day another order was passed. On perusal of the order passed later on April 21, 2025, it appeared that hearing of charge took place on the very same day. Accordingly, charge was framed against the Accused-Petitioner under section 65(2) of B.N.S., 2023 read with Section 6 of POCSO Act, and the contents of the charge were read over and explained to the accused to which he pleaded not guilty.
The Petitioner's counsel contended that on April 21, 2025 on production of Accused-Petitioner, he was served with Police Papers and he was remanded to jail custody. However, later on the very same day another order was passed indicating that hearing of charge took place and charge was framed, read over and explained to the accused. He submitted that the procedure prescribed in the B.N.S.S. was violated because the Petitioner was not granted any opportunity to file a discharge Petition as provided under Section 250 of BNSS. Therefore, the impugned order dated April 21, 2025 was passed in violation of the provisions prescribed under the B.N.S.S., 2023.
Justice Mohapatra observed: ''On a careful examination of the impugned order dated 21.04.2025, this Court observes that two orders have been passed on the very same day. The first part of the order indicates that appearance of the conducting counsel was accepted on production of the accused. Thereafter Police Papers were supplied to the accused. The accused was remanded to jail custody till 12.05.2025. Another order was passed on that day, which reveals that the case was taken up again for framing of charge. Accordingly, after hearing the Special P.P, Charge has been framed taking into consideration the final form submitted by the I.O. and the document annexed to the Final Form. The order dated 21.04.2025 which was passed later on the same day does not reveal that any opportunity of hearing was given to the accused or his conducting counsel to file a discharge petition. Finally, on the later part of the day charge has been framed under Section 65(2) of BNS read with Section 6 of POCSO Act, and the same was read over and explained to the accused."
In the the application, the High Court was required to test the validity of the order dated April 21, 2025. It was required to assess as to whether the procedure followed by the Court below in the present case while framing charge is in conformity with the statutory provisions contained in Section 251 of B.N.S.S. which corresponds to 228 of the Cr.P.C. Section 251 of BNSS is identical to Section 228 of the Cr.P.C albeit with a slight modification in Sub-Section (1)(b) of Section 251 of the BNSS 2023 wherein a time limit of 60 days, from the date of first hearing on charge, has been provided to frame the charge in writing. For better appreciation the provision of Section 251 BNSS is quoted herein below;
“251. Framing of charge.—(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an
offence which—
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief
Judicial Magistrate, or the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused within a period of sixty days from the date of first hearing on charge.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused present either physically or through audio video electronic means and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.”
From the reading of Section 251 of the BNSS, it can be seen that Sub-Section (1) of Section 251 provides that the Judge will proceed to frame the charge “after such consideration and hearing as aforesaid”. The hearing and consideration referred to in Sub-Section (1) of Section 251 clearly alludes to the preceding section, i.e. Section 250 of BNSS which is the pari materia provision corresponding to Section 227 of the Cr.P.C. The aforesaid Section 250 deals with “Discharge” and postulates that;
“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.”
Section 250 of BNSS, 2023 clearly states that the accused will be provided with an opportunity to file an application for discharge and upon such application being filed, the Court below shall consider the case records, documents submitted and hear the prosecution as well as the accused before determining as to whether there are sufficient grounds to proceed against the accused. In the event the learned Court below is of the view that there are no sufficient grounds to proceed against the accused, the accused shall be discharged. However, if after hearing both the accused and the prosecution, the learned Court below considers that there is enough material to draw the presumption that the accused might have committed the offence, the trial court will then proceed to frame the charge as per Section 251 BNSS.
Section 250, specifically in sub-section (1) also provides a time limit of 60 days from the date of commitment of the case under Section 232, within which the discharge application may be filed by the accused. No such time limit was fixed under the erstwhile Section 227 of the Cr.P.C and it is a newer introduction in the BNSS. However, this Court observes that there is a slight legislative gap in reckoning the 60-day period in cases where committal procedure is contemplated per se, specifically in respect of Special Courts constituted under various legislations, including the POCSO Act.
This case involved offences under the POCSO Act. In prosecution under the POCSO Act, the Special Court, by virtue of Sub-section (1) of Section 33 thereof, is empowered to take cognizance of any offence under the Act upon receipt of a complaint of facts constituting the offence or upon a police report of such facts, without the accused ever being committed to it for trial.
Section 33(1) of the POCSO Act is reproduced:
“33. Procedure and powers of Special Court.—(1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts…”
In such circumstances, the legislative scheme under BNSS does not delineate with precision the exact point from which the 60-day period under Section 250(1) BNSS is to be computed.
Section 226 of the Cr.P.C which corresponds to Section 249 of the BNSS provides for opening of the case for the prosecution. It lays down that when the accused appears or he is brought before the Court of Sessions in pursuance of a commitment of a case under Section 209 (which corresponds to Section 232 of the BNSS), the prosecutor shall open his case by describing the charge brought against the accused. Since, no commitment procedure is required for the cases triable by the Special Court under the POCSO Act, 2012, a reasonable interpretation would be the date of commitment shall be the date on which the accused appears or brought before the court for the first time after the cognizance of the offence taken by the Special Court as provided under Section 33(1) of the POCSO Act, 2012. In view of the aforesaid provision, Section 250 of the BNSS is to be read and interpreted in a manner that the starting day of limitation for filing of an application for discharge within a period of 60 days shall be counted from the date of first appearance of the accused before the Special Court after the cognizance of the offence is taken. Similarly, once the accused prefers a discharge application, the case shall be posted for hearing on charge immediately. Thereafter, in view of Section 251(1)(b), the Special Court shall frame the charge within 60 days from the date the case is posted for first hearing on charge. This should be a reasonable and fair interpretation of the statutes to avoid any conflict.
The provision of Section 227 of the Cr.P.C was introduced at the time of amendment of the Code of Criminal Procedure in the year 1973. Such provision of discharge under Section 227 was introduced newly after abolition of the commitment proceedings as was existing under the old Cr.P.C. Section 227 confers a special power on Judge to discharge an accused at the threshold if upon consideration of the records and documents he finds that there are no sufficient grounds for proceeding against the accused.
The expression in Section 227 “hearing the submission of the accused” means the submission of the accused on the records ofthe case as filed by the prosecution and documents submitted therewith.
Justice Mohapatra relied on the judgment by the Supreme Court in Ajay Kumar Parmal vs. State of Rajasthan reported in (2012) 12 SCC 406 and Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao reported in (2019) 9 SCC 512 has also laid down the principles to be followed by the concerned court while framing charge under Section 228 of the Cr.P.C In the judgment it has been laid down that the Court cannot act merely as a post office or a mouth piece of th prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court for consideration at the time of framing of charge, the probative value of the material on record cannot be gone into, however, while framing charge the Court must apply its judicial mind and the materials placed on record must satisfy that the commission of the offence by the accused was possible. The object of incorporating Sections like 227 and 228 in the Cr.P.C is to ensure that the court should be satisfied that the accusation made against the accused is not frivolous and that there is some material for
proceeding against him. Thus, it is very clear that the provisions contained in Section 227 and 228 of the Cr.P.C (which corresponds to Section 250 and 251 of the BNSS) are not empty formalities and that the court exercising such power is required to evaluate the entire material and documents made available on record with the object of finding out if the facts emerging therefrom and taken at their face value discloses the existence of all ingredients constituting the alleged offences.
In the case question, it was clear that the Court initially accepted the vakalatnama of the new counsel for the accused, issued notice to the informant and the victim to be present for the hearing of the accused‟s bail application on 01.05.2025, supplied the Police paper to the accused and the Special Public Prosecutor, and remanded the accused to judicial custody up until 12.05.2025. Subsequently, on the same date, i.e. 21.04.2025, another order was passed by the same Court wherein it was recorded that both the counsel for the prosecution and the defence were present and were both heard on the point of charge. The order also revealed that the Court below had taken into consideration the F.F, the witness statements along with other connected papers and has concluded that there are grounds to presume that the accused has committed the offences punishable under the sections stated hereinabove. Consequently, charge under Section 65(2) of BNS read with Section 6 of POCSO Act was framed against the accused, and the contents of the charge were read over and explained to the accused. The accused pleaded not guilty, and as such, the Court below fixed a date for hearing the prosecution witnesses on 12.05.2025. Finally, the accused was remanded to jail custody to be produced on the date of hearing of the witnesses on behalf of the prosecution.
The intention of the legislature in including the 60-day period under sub-section (1) to Section 250 was to provide ample time to the accused to present his properly constituted discharge application so as to preserve the right of the accused to a fair trial, as envisaged under Article 21 of the Constitution of India.
Justice Mohapatra observed: '....'this Court is of the considerate view that the right of the accused to a fair trial, as enshrined under Article 21 of the Constitution of India, has been violated on account of the very fact that the learned defence counsel did not have the opportunity to go through the basic documents or the police papers, which were supplied to the accused on the date the defence counsel was appointed and the charge was framed.''
He added, ''it cannot be held that any meaningful hearing for the purpose of Sections 250 and 251 BNSS have been conducted before framing of charge against the accused. As such, this Court has no hesitation in setting aside the second part of the impugned order dated 21.04.2025 of the learned ADJ-cum-Special Judge (POCSO), Jagatsinghpur, under Annexure-5, passed in the later part of 21.04.2025.
Justice Mohapatra's judgment reads:''Consequently, it is directed that the matter be considered de novo by the learned Court in seisin over the matter from the stage of discharge. The Petitioner is directed to approach the Court in Session over the matter by filing a discharge application within two weeks from the date of this judgment. In such eventuality, the learned Court in seisin over the matter shall consider such dischargeapplication of the Petitioner in accordance with law, within four weeks thereafter before framing the charge.''
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