The Allahabad High Court has held that an accused can file a discharge application before the trial court without first applying/obtaining bail.

The Court further clarified that an accused may seek exemption from personal appearance under Section 355 BNSS (317 CrPC), along with the discharge application, by showing cogent and substantial grounds.

A bench of Justice Shree Prakash Singh observed thus answered two legal questions it framed concerning the maintainability of a discharge application and a plea for exemption from personal appearance before an accused is granted bail.

Case in brief

An application was filed by Pankaj Chauhan under Section 528 BNSS challenging the charge sheet and the summoning order passed by the Additional District and Sessions Judge/Special Judge (POCSO), Maharajganj.

As per the prosecution's case, the mother of the alleged victim (17), lodged an FIR alleging that applicant had established physical relations with her daughter under threat and coercion.

However, it was the applicant's case that the victim's statements recorded under Sections 180 and 183 of the BNSS indicated that she had been acquainted with him for six months and that both were in love.

It was further contended that the FIR had been lodged after the applicant declined to marry her.

The applicant also disputed the victim's age and alleged that the investigation had ignored contradictions in her statements.

However, after making these submissions, the counsel for the applicant sought liberty to move discharge application before the trial court through his counsel.

Opposing the plea, the State submitted that the allegations were serious and that the Investigating Officer, after collecting documentary evidence, had found the victim to be a minor.

The State also objected to the applicant being permitted to move a discharge application without first obtaining bail.

High Court's observations

At the outset, the Court referred to Section 239 CrPC [in the matter of warrant cases (Magistrate trial)] and under Section 227 of CrPC [in the matter of Sessions trial] and noted that these provisions do not expressly prescribe the stage at which a discharge application may be moved.

It further observed that there is no specific provision for personal exemption before the trial court while moving such an application.

However, the Court held that a conjoint reading of Sections 205 and 317 CrPC with the provisions governing discharge under Sections 239, 227 and 245 CrPC provides a route for seeking exemption from personal appearance in appropriate cases.

The Court explained that Section 205 CrPC (Section 228 BNSS) enables a Magistrate, while issuing summons, to dispense with the personal attendance of an accused and permit appearance through an advocate.

On the other hand, it clarified that Section 317 CrPC (Section 355 BNSS) empowers a Judge or Magistrate, for reasons to be recorded, to dispense with personal attendance during an inquiry or trial, if such attendance is not necessary in the interests of justice and the accused is represented by an advocate.

The Court further observed that these provisions cannot be read in a restrictive or prohibitory manner to suggest that they cannot be invoked before an accused is granted bail.

In this regard, the High Court relied on the Supreme Court's decision in Sharif Ahmed and Another v. State of Uttar Pradesh and Another, (2024) 14 SCC 122, wherein it was held that the power to grant exemption from personal appearance should not be read restrictively as being available only after an accused has obtained bail.

The Supreme Court had also observed that every procedure which is just and fair is permissible unless expressly or impliedly prohibited by law.

The High Court further referred to Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167, wherein the Supreme Court held that the power to grant exemption from personal appearance should be exercised liberally where the facts and circumstances warrant such exemption.

The Court also referred to its inherent powers under Section 528 BNSS, observing that they could be invoked to prevent abuse of the process of any court or otherwise secure the ends of justice.

It held that, in exceptional cases, the HC could exempt an accused from personal appearance while deciding a discharge application, provided cogent reasons are recorded. However, such power must be exercised sparingly.

Answering the questions framed by it, the Court held that an accused can prefer a discharge application without applying for or obtaining bail.

It further held that an accused can file an application under Section 317 CrPC (Section 355 BNSS), seeking exemption from personal attendance before the trial court along with the discharge application, provided cogent and substantial grounds are shown.