S. 250(1) BNSS | POCSO Accused Can File Discharge Application Within 60 Days Of Receiving Police Papers: Orissa HC Issues Directions

Filling a legislative gap concerning interplay of the Bharatiya Nagarik Suraksha Sanhita ('BNSS') and the Protection of Children from Sexual Offences Act ('POCSO Act') regarding limitation period for filing a 'discharge application', the Orissa High Court has held that an accused under the latter enactment can prefer an application seeking discharge under Section 250(1) of the BNSS within sixty days from the date on which he is furnished with the police papers, as provided under Section 231, BNSS.Addressing the issue, which arose due to the absence of a specific 'committal provision' under the POCSO Act, the Bench of Justice Aditya Kumar Mohapatra held –“…this Court is persuaded to take the considerate view that in cases before Special Courts instituted under special statutes like the POCSO Act, as in the present matter, where there is no contemplation for committal of the case to the Sessions Court, the time period of 60 days for preferring a discharge application under Section 250(1) BNSS may be so interpreted as commencing from the date of supply of documents and police papers to the accused.”The Court was hearing an application filed under Section 528, BNSS (akin to Section 482, CrPC) seeking to quash an order framing charge against the petitioner under Section 65(2) of the Bharatiya Nyaya Sanhita ('BNS') and Section 6 of the POCSO Act. The sole ground of challenge was that the Special Court framed the charge against the petitioner on the very same day on which he was provided with the police papers, subsequent to filing of vakalatnama. He questioned the tenability of such order since no sufficient opportunity was granted to him to file an application seeking discharge, as has been contemplated under Section 250 of the BNSS.To examine whether the Special Court committed any illegality through the impugned order, the Court referred to Section 251 of the BNSS, which provides procedure as to framing of charge. The language employed in Section 251(1) is that the Judge will proceed to frame charge “after such consideration and hearing as aforesaid”. The hearing and consideration referred to in Section 251(1), the Court held, clearly indicates the procedure needs to be followed under Section 250, BNSS (similar to Section 227, CrPC).Section 250, BNSS clearly states that the accused shall be provided with an opportunity to file an application for discharge and upon such application being filed, the Court below shall consider the case records, documents submitted and hear the prosecution as well as the accused before determining as to whether there are sufficient grounds to proceed against the accused.Section 250(1) further provides a time limit of 60 days from the date of 'commitment' of the case under Section 232, within which the discharge application may be filed by the accused. Notably, no such time limit was fixed under the Section 227 of the CrPC, which is a new introduction by the BNSS.The above being the position of law, the Court highlighted an apparent legislative gap since there is no 'committal procedure' as such in certain special statutes including the POCSO Act. In cases under the POCSO Act, the Special Court is empowered under Section 33(1) to take cognizance of any offence under the Act upon receipt of a complaint of facts constituting the offence or upon a police report of such facts, without the accused ever being committed to it for trial. When there is no compulsory committal procedure in such cases, the question which arose for consideration was as to from which particular date the limitation period of 60 days for filing of discharge application by the accused should be reckoned. Anomaly between Section 35(1), POCSO Act & Section 250(1), BNSSBefore answering the aforesaid question, Justice Mohapatra highlighted a stark incongruity between Section 35(1) of the POCSO Act which says the evidence of the child/victim shall be recorded within a period of 30 days of the Special Court taking cognizance of the offence and Section 250(1) of BNSS which grants 60 days-time to the accused from the date of committal to file discharge application. Pertinently, a committal happens only after cognizance of offence is taken. Further, the testimony of the victim can only be recorded after framing of the charge, which cannot be done until the accused exhausts his right to file discharge application for which he is granted a period of 60 days from the date of committal. Thus, the Court was of the view that both the provisions are at loggerheads. Directions to Special CourtsIn order to remove confusions, the Court issued the following directions to all the Special Courts under the POCSO Act regarding procedure to be followed in similar cases –(i) Since no commitment procedure has been prescribed in the POCSO Act for the cases triable by the Special Court, the date of appearance before the Special Court or the date on which accused was brought before such court for the first time after cognizance of the offence...

S. 250(1) BNSS | POCSO Accused Can File Discharge Application Within 60 Days Of Receiving Police Papers: Orissa HC Issues Directions

Jyoti Prakash Dutta

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