Legal Aid Or At Least Hearing Mandatory Before Framing Charges Against Accused In Custody: Allahabad High Court

Recently, the Allahabad High Court has held that when the accused is in judicial custody, he/she must be provided a legal counsel by the Trial Court for filing discharge application and if the accused refuses such counsel, then a hearing must be afforded on question of framing of issues with assistance of a legal counsel. Referring to Sections 262 and 263 of BNSS, Justice Ram Manohar Narayan Mishra held “it becomes crystal clear that, on the one hand, the statute gives an opportunity to the accused to move an application for discharge within 60 days of supply of copies of documents and the court has also been prescribed a time limit of 60 days for framing of charge, which commences from the date of the first hearing on charge.”Further, the Court held “In such circumstances, the court was under an obligation to provide legal aid counsel to the accused so as to enable him to file an application for discharge, as is provided under Section 262(1) of the BNSS, 2023 and in case he was not inclined to move an application for discharge, at least some hearing is required to be afforded to him on the question of framing of charge and with the assistance of legal aid counsel, whose assistance should have been provided to him before hearing in charge and framing of charges.”Informant is said to have been duped by an unknown person in paying Rs. 29,25,000/- into different bank accounts towards purchase of banana plants. During investigation, it was found that the revisionist was in contact and connected to the main accused and the person's whose bank accounts the money was transferred in. The revisionist-accused challenged the order of framing of charges by the Trial Court under Sections 336(3), 338, 340(2) and 61(2) B.N.S and 66 D of I.T Act on grounds that no effective opportunity to file discharge application was given to him and no proper hearing was given to him before passing the impugned order. The Court observed that Section 262 of BNSS provided 60 days' time to the accused to file discharge application from the date of supply of copies of documents. Sub-section(2) of Section 262 provides that the Magistrate may after giving opportunity of hearing and after recording reasons may discharge the accused. Further, Section 263 provides for framing of charges within 60 days from the first date of hearing on charge. “A conjoint reading of Sections 262 to 263 of B.N.S.S, it found that there is a chapter from Section 2 from corresponding to the earlier Sections 239 and 240 of the Cr.P.C to the extent that in Section 262 BNSS, the accused has been given an opportunity to file an application seeking discharge within a period of 60 days of supply of copies of documents as provided under Section 230 BNSS and under Section 263 BNSS, the Magistrate is acquired to frame a charges against the accused if he is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XX, which is competent to try and which, in his opinion, could be adequately punished by him within a period of 60 days from the date of the first hearing on charge. No such statutory limitation of 60 days is provided under the corresponding law of Sections 239 and 240 CrPC.”Observing that the revisionist was languishing in jail, the Court held that the Trial Court ought to have provided him legal counsel for filing of discharge application and afforded opportunity of hearing prior to framing of charges. It noted that even the order sheet did not state that any opportunity of hearing was provided to the revisionist before framing charges. “It is quite obvious that no opportunity of hearing was provided to the revisionist on the question of framing of charge, the Section 262 and 263 Cr.P.C as well as earlier provision of Sections 239 Cr.P.C, in this regard makes it mandatory to provide such an opportunity before framing of charge.”Accordingly, the impugned order was set aside with a direction to the Trial Court to proceed afresh and give a 2 week window to the accused to file discharge application. Case Title: Kallayya Pattadamath @ Akshay Pattadamath v. State Of U.P. Thru. Prin. Secy. Deptt. Home Lko. .And AnotherCounsel for Revisionist(s) : Abhineet Jaiswal, Devvrat Pratap SinghClick Here To Read/Download Order

Legal Aid Or At Least Hearing Mandatory Before Framing Charges Against Accused In Custody: Allahabad High Court

Upasna Agrawal

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