S.262(1) BNSS | Not Mandatory To Wait 60 Days For Framing Charge But 'Reasonable Interval' Be Given For Seeking Discharge: Orissa High Court

The Orissa High Court has ruled that the sixty-days period provided to accused for filing discharge application under Section 262(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is not a rigid or non-negotiable “moratorium” and that trial court may proceed to frame charge after allowing a “reasonable interval” to elapse after supply of police papers to accused under Section 230 of the BNSS. [2026 LiveLaw (Ori) 106]

While deciding a quashing petition filed against an order framing charge on the very day of supply of police papers, the Bench of Dr. Justice Sanjeeb Kumar Panigrahi held–

“To read Section 262(1) as imposing and rigid, non-negotiable sixty-day moratorium before which charge cannot be framed, regardless of whether the accused has invoked or intends to invoke that right, would be to convert a provision designed as a shield for the accused into a sword against the very object of the Sanhita, that is, the timely trial. Such a construction would also open the floodgates to a wave of technical challenges devoid of any substantive grievance, converting Section 262(1) from a right of opportunity into an instrument of delay which the Legislature could scarcely have intended.”

Upon filing of charge-sheet against them, the petitioners appeared before the Judicial Magistrate First Class (Outskirt), Bhubaneswar [JMFC(O)] on 18.02.2026. They were provided the police papers as per the provision under Section 230, BNSS [akin to Section 207 CrPC]. By a separate order passed later on that very day, the JMFC(O) framed charge against the petitioners under Sections 303(2) and 3(5) of the BNS, read with Rule-18 of the Odisha Minerals (Prevention of Theft, Smuggling and Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007 and Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957.

Subsequently, after framing of charge, the petitioners filed discharge applications as per the provision of Section 262 BNSS (similar to Section 239 CrPC), which came to be rejected by an order dated 23.06.2026. The petitioners filed this petition under Section 528 BNSS assailing the procedure adopted by the JMFC(O) in framing the charge on the very same date of supply of police papers.

The moot question which arose for consideration was whether the manner in which charge came to be framed is so fatal to the proceeding that it vitiates the charge itself.

Justice Panigrahi noted that the sixty-day period from the supply of police papers provided under Section 262(1) to the accused to file discharge application is a novel innovation made by the Parliament in the newly introduced BNSS, analogous provision of which is absent in the CrPC. He acknowledged the motive behind introduction of such a provision in the new statute. He observed –

“This is a novel legislative innovation, and its purpose is not difficult to discern as it is intended to arm the accused with a real and meaningful opportunity, unhurried by the tyranny of the cause-list, to scrutinize the police report and persuade the Court that the charge against him is groundless before the heavier machinery of trial is set into motion.”

Nevertheless, for challenging the tenability of framing of charge, the Judge opined, the parameter is not mere procedural fault, rather it is to be adjudged on the touchstone of prejudice.

“A departure from procedure, even a departure from a provision cast in seemingly mandatory language, does not vitiate a proceeding unless it is shown that the departure has occasioned real, demonstrable prejudice which the accused has, in fact, been denied a fair opportunity to defend himself, and not merely a theoretical or formal one.”

In the present case, the Court observed, the petitioners were not denied their statutory right to file discharge applications. The same was not only allowed but also decided on merit and rejected by a reasoned order. Therefore, the Bench was not convinced to hold that the alleged procedural fault resulted in grave prejudice to the petitioners. It further remarked–

“The statutory right under Section 262(1), far from having been extinguished, was exercised, examined, and adjudicated upon. What the Petitioners seek, in truth, is not the vindication of a right denied, but the resurrection of a formality already overtaken by events which can be put like, a bell, once rung, cannot be unrung, and a right once exercised cannot, in the same breath, be complained of as having been foreclosed.”

Justice Panigrahi was prompt to clarify that that the sixty-days period provided under Section 262(1) BNSS cannot be construed in a manner which shall result in a non-negotiable two-months moratorium against framing of charges. However, he urged the Courts across the State to adopt a balancing mechanism of allowing a reasonable period to accused for filing discharge applications.

“In fact, this Court will remiss if it does not observe that the better and more prudent practice which the trial Courts across the State will do well to internalize that is to allow a reasonable interval to elapse between the supply of police papers under Section 230 and the framing of charge, so as to give true and unhindered effect to the right conferred under Section 262(1), rather than compressing both into the same date as a matter of administrative convenience. Justice, it is often said, must not only be done but must also appear to be done. Procedural symmetry, even where it does not affect the ultimate outcome, lends legitimacy and confidence to the process.”

Accordingly, the petition, being devoid of merit, was dismissed.

Case Title: Rajesh Kumar Mohapatra & Ors. v. State of Odisha

Case No: CRLMC No. 2165 of 2026

Date of Judgment: August 21, 2026

Counsel for the Petitioners: Mr. Pravat Kumar Muduli, Advocate

Counsel for the State: Mr. Raj Bhusan Dash, Addl. Standing Counsel

Citation: 2026 LiveLaw (Ori) 106

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