Can POCSO Court Frame Charges Without Hearing Accused On Discharge? Andhra Pradesh High Court Answers

The Andhra Pradesh High Court has held that a POCSO Special Court cannot frame charges without first affording the accused an effective opportunity of hearing on the question of discharge as contemplated under Sections 250 and 251 BNSS.

Clarifying that the POCSO Act's mandate for expeditious trials does not override the accused's statutory right to seek discharge, the Court observed that under Section 251(1) BNSS, charges can be framed only after the accused is heard on discharge under Section 250 BNSS.

Allowing a criminal revision petition, the Court set aside the Special Court's order framing charges after finding that the docket proceedings did not indicate that the accused had been afforded an effective opportunity of hearing before charges were framed.

A Single Judge Bench of Justice Dr. Y. Lakshmana Rao allowed the criminal revision petition challenging the Special Court's order framing charges.

The Court held:

"On a careful reading of the impugned order dated 08.05.2026, it can be gleaned that the impugned order is neither an order of dismissal of the discharge petition nor an order of discharging the Petitioners, but it is an order of framing charges without mentioning in the docket proceedings that before the charges are framed, the accused were heard about framing of the charges. However, the end of result of the impugned order is no opportunity was afforded to the Petitioners by way of hearing on the charges.

As a result, right of the accused is deprived of. Afortiori, the learned Trial Court has also not inquired from the Petitioners whether they intend to file a discharge petition as per their entitlement under Section 250 of 'the BNSS.,' though not within a period of sixty days in the view of the legislative mandate prescribed in Section 35 of 'the POSCO Act'."

The petitioners, arrayed as Accused Nos. 2 and 3, were charge-sheeted for offences punishable under the POCSO Act (2012), the Bharatiya Nyaya Sanhita (BNS) (2023) and the Immoral Traffic (Prevention) Act (1956).

Aggrieved by the Special Court's order framing charges against them, they approached the High Court in revision, contending that the investigating officer had found no prima facie material implicating them and that the Special Court had framed charges without first affording them an opportunity to seek discharge and be heard under Sections 250 and 251 of the BNSS.

Opposing the revision, the prosecution submitted that the charge sheet disclosed sufficient prima facie material against the petitioners and that, in view of Section 35 of the POCSO Act mandating expeditious trials, the Special Court had rightly proceeded to frame charges.

Examining the impugned order and the docket proceedings, the High Court found no indication that the petitioners had been heard before charges were framed. It held that the denial of the statutory right of hearing under Sections 250 and 251 of the BNSS rendered the order framing charges unsustainable.

Observing that the POCSO Act does not prescribe an independent procedure for discharge or framing of charges, the Court clarified that the procedure under the BNSS would govern that stage of the proceedings before POCSO Special Courts.

'The BNSS.,' confers a valuable procedural safeguard upon an accused before the commencement of trial. Under Section 250 of 'the BNSS.,' the accused is entitled to seek discharge by filing an application within the prescribed period. Section 251(1)(b) of 'the BNSS.,' further requires the Court to frame charges in writing within sixty days from the date of the first hearing on charge, where grounds exist for proceeding against the accused.

A combined reading of Sections 250 and 251 of 'the BNSS.,' thus indicates that the legislature has consciously provided an opportunity to the accused to seek discharge before charges are framed and the trial proceeds further. On the other hand, Section 35(1) of 'the POCSO Act.,' directs that the evidence of the child victim should ordinarily be recorded within thirty days from the date on which cognizance is taken by the Special Court. The apparent inconsistency between these timelines cannot be resolved by reading either provision in isolation. Instead, both enactments must be interpreted harmoniously and purposively so that the statutory safeguards available to the accused under 'the BNSS.,' are preserved without undermining the legislative objective of ensuring expeditious trials under 'the POCSO Act'," the court held.

The court said that while construing the provisions of 'the BNSS.,' and 'the POCSO Act.,' the endeavour of the Court should be to give effect to both enactments, insofar as they are capable of operating simultaneously.

On the question that at what stage an accused before a Special Court becomes entitled to seek discharge, the court said that since POCSO Act contains no specific provision regulating this aspect, the procedural provisions of BNSS necessarily govern the field.

It further held that where a Special Court takes direct cognizance without committal, the sixty-day period under Section 250(1) BNSS for filing a discharge application would be reckoned from the accused's first appearance before the Court after receiving the prosecution papers.

This interpretation, the Court said, preserves both the accused's right to seek discharge and the POCSO Act's objective of ensuring speedy trials.

The Court, however, noted that the petitioners had not informed the Special Court within a reasonable time of their intention to file a discharge application. Nevertheless, it held that this omission did not absolve the Special Court of its statutory obligation to afford the accused an effective opportunity of hearing before framing charges. Emphasising the object of Section 250 of the BNSS, the Court observed that the provision is intended to provide the accused adequate opportunity to prepare and file a well-founded discharge application before being subjected to trial, thereby reinforcing the guarantee of a fair trial under Article 21 of the Constitution.

Accordingly, the High Court set aside the order framing charges and remanded the matter to the Special Court with the following directions:

1. The petitioners shall file a discharge application under Section 250 of the BNSS within 15 days from the date of the High Court's order.
2. Upon such application being filed, the Special Court shall dispose of it, after affording sufficient opportunity of hearing to both sides, within two weeks.
3. If the discharge application is dismissed, the Special Court shall hear both sides before framing charges either on the same day or, in any event, within one week thereafter.
4. Thereafter, the Special Court shall fix the matter for trial and conclude the trial as expeditiously as possible.
5. The petitioners shall extend full cooperation to the Special Court to ensure compliance with the above directions.

Case Title: Shaik Shahina & Anr. v. State of Andhra Pradesh

Case No.: Criminal Revision Case No. 655 of 2026

Counsel for the Petitioners: C. Nageswar Rao

Counsel for the Respondents: A. Sai Rohit & Jyothi Eswar Gogineni

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