The Calcutta High Court has held that the 60-day period prescribed under Section 250(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, for an accused to seek discharge also applies to trials under the Protection of Children from Sexual Offences (POCSO) Act, 2012. The period would be reckoned from the date on which the accused receives the complete set of prosecution documents intended to be relied upon during trial.

Justice Dr. Ajoy Kumar Mukherjee observed that the statutory requirement under Section 35 of the POCSO Act for recording a child's evidence within 30 days of cognizance cannot be used to curtail the accused's opportunity to seek discharge under the subsequent procedural law. The Court emphasised that expeditious disposal of POCSO cases cannot come at the cost of procedural fairness and the accused's right to a fair trial under Article 21 of the Constitution.

"The accused person's right to prefer discharge application within a reasonable period on receipt of prosecution/police papers is an unalienable facet of article 21 of the Constitution," the Court observed.

The Court was hearing a criminal revision petition filed by Suvradip Halder challenging an order dated December 3, 2025, passed by the Additional District and Sessions Judge, Chandannagore, Hooghly, framing charges against him under Sections 127(2) and 351(3) of the Bharatiya Nyaya Sanhita (BNS), read with Sections 4 and 6 of the POCSO Act.

The petitioner contended that despite repeated requests, he had not been supplied with the complete set of prosecution documents, including four seizure lists, medical reports of two boys and the medical report of the accused. He also referred to the non-supply of a statutory notice under Section 179 of the BNSS.

It was submitted that the trial court had acknowledged the deficiencies and, by an order dated October 24, 2025, directed the prosecution to supply copies of the missing documents. The matter was thereafter fixed for supply of the documents and consideration of charge.

However, on December 3, 2025, without addressing whether the missing documents had been supplied in compliance with its earlier direction, the trial court proceeded to frame charges against the petitioner.

The petitioner argued that the trial court had denied him an opportunity to exercise his statutory right to seek discharge. It was contended that framing of charges was not a mere formality and required the court to apply its judicial mind to the prosecution materials after affording the accused an opportunity to make submissions.

Opposing the revision petition, the State argued that the trial court was justified in proceeding with the framing of charges in view of the requirement under Section 35 of the POCSO Act. It submitted that the provision required the evidence of a child to be recorded within 30 days of cognizance and would override the discharge-related provisions under Sections 250 and 251 of the BNSS.

60-day discharge period under BNSS applies to POCSO proceedings

Examining the statutory framework, the High Court noted that Section 250(1) of the BNSS allows an accused to file an application for discharge within 60 days from the date of commitment of the case under Section 232. Section 262(1), which deals with warrant cases instituted on a police report, similarly provides a 60-day period from the date of supply of copies of documents under Section 230.

The Court noted that the POCSO Act does not contemplate a commitment procedure. Under Section 33(1) of the Act, a Special Court can take cognizance of an offence directly upon receiving a complaint or police report, without the accused being committed to it for trial.

It therefore considered how the 60-day period under Section 250(1) should be calculated in cases where no commitment procedure is prescribed.

Taking guidance from Section 262(1) of the BNSS, the Court held that in such cases the 60-day period must be reckoned from the date of supply of the complete set of prosecution documents to the accused.

The Court, however, also examined the apparent conflict between the discharge provisions under the BNSS and Section 35(1) of the POCSO Act, which requires the evidence of a child to be recorded within 30 days of the Special Court taking cognizance.

While Section 31 of the POCSO Act provides for the application of the criminal procedure law to proceedings before a Special Court, the State had argued that the specific timelines under the POCSO Act would prevail over the general procedural provisions.

The High Court held that the POCSO Act does not prescribe any specific procedure governing discharge or framing of charges. Section 33(9) of the Act also requires the Special Court to try offences, as far as may be, in accordance with the procedure prescribed for trials before a Court of Session.

The Court consequently held that the relevant provisions of the BNSS would regulate the procedure for discharge and framing of charges in POCSO cases.

BNSS safeguards apply as subsequent general legislation

The Court further considered whether the provisions of the BNSS, being subsequent general legislation, would apply to proceedings under the earlier special statute.

Referring to the Supreme Court's decision in Ajoy Kumar Banerjee v. Union of India, the Court discussed the principles governing the relationship between general and special legislation. It noted that a subsequent general law may override an earlier special law where the two are so repugnant that they cannot coexist, even in the absence of an express overriding provision.

The Court also referred to S. Prakash v. K.M. Kurian, observing that where the language of a subsequent general provision is clear and unqualified and the legislative intention is to establish a rule of universal application, the special provision may have to give way.

It further held that Section 31 of the POCSO Act is a case of legislation by reference and not legislation by incorporation. Consequently, subsequent changes in the criminal procedure legislation would apply to proceedings under the POCSO Act.

The Court observed that the incorporation of the 60-day period under the BNSS was intended to provide an accused reasonable time to examine the prosecution documents and decide whether to seek discharge.

It held that there was no reasonable justification for denying an accused facing POCSO charges the opportunity to seek discharge within a prescribed period after receiving the prosecution documents, particularly when the procedural law provides the same safeguard to accused persons facing other offences.

Fair trial cannot be sacrificed for expeditious disposal

The High Court emphasised that the statutory objective of expeditious trials, particularly in cases involving children, cannot justify denial of procedural safeguards available to an accused.

Referring to the Supreme Court's decision in Md. Hussain v. State (Government of NCT, Delhi), the Court reiterated that speedy trial and fair trial are integral components of Article 21 of the Constitution.

It also relied on Anokhilal v. State of Madhya Pradesh, wherein the Supreme Court had observed that attempts to expedite criminal proceedings must not come at the expense of basic fairness and the opportunity afforded to the accused.

The High Court further observed that the provisions governing discharge and framing of charges under the BNSS are not empty formalities. A court must examine the materials placed before it and determine whether the facts, taken at face value, disclose the ingredients of the alleged offences.

"The trial court cannot act merely as a post office or a mouthpiece of the prosecution," the Court observed, adding that the court must consider the broad probabilities of the case and the total effect of the evidence and documents produced before it.

Procedure laid down for POCSO Special Courts

The High Court thereafter laid down the procedure to be followed by Special Courts under the POCSO Act while considering discharge and framing of charges:

Since the POCSO Act does not prescribe a commitment procedure, the date of service of copies of all prosecution documents intended to be relied upon during trial shall be treated as the date of commitment for the purpose of Section 250(1) of the BNSS.

Immediately after taking cognizance, when the accused appears before or is brought before the Special Court, copies of the prosecution documents must be supplied under Section 231 of the BNSS, if not already provided.

The accused may file an application for discharge within 60 days of receiving the complete set of prosecution documents.

If the accused does not wish to file an application for discharge, such intention must be communicated in writing. Upon receiving the written communication, the court shall immediately proceed with the charge hearing.

If an application for discharge is filed within the prescribed period, the Special Court must provide a reasonable opportunity of hearing to the accused and the prosecution and dispose of the application within 60 days from its filing.

If the accused is not discharged, the court shall proceed with the charge hearing within 60 days thereafter.

Charges set aside

Applying these principles to the case, the High Court found that the trial court had proceeded to frame charges without supplying the complete set of prosecution documents, despite having specifically directed the prosecution to furnish the missing papers.

The Court held that the impugned order was therefore unsustainable in law and allowed the revision petition.

It directed the trial court to supply the complete set of prosecution documents, including the missing papers intended to be relied upon during trial, within two weeks from the date of communication of the High Court's order.

The petitioner was granted 60 days thereafter to file an application for discharge, if he wished to do so. If no discharge application was intended, he was required to communicate that decision immediately after receiving the documents, following which the trial court would proceed with the charge hearing. In the event a discharge application was filed, the trial court was directed to dispose of it within 60 days.

Accordingly, the December 3, 2025 order framing charges against the petitioner was set aside.

Case: Suvradip Halder v. The State of West Bengal & Anr.

Case No.: CRR 307 of 2026