Orissa HC Aligns BNSS with POCSO, Ensures Accused Get 60-Day Window Before Charge Framing

The Orissa High Court has ruled that in cases under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), charges cannot be framed on the same day that police papers are supplied to the accused. The Court held that Special Courts must provide the accused the statutory right to seek discharge under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), before proceeding to frame charges.

Justice Aditya Kumar Mohapatra, while setting aside an order of the Special Judge (POCSO), Jagatsinghpur, observed that framing charges immediately after furnishing documents deprived the accused of the opportunity guaranteed under Section 250 BNSS. The Court clarified that the legislative intent behind BNSS was to give accused persons a meaningful chance to seek discharge within 60 days, and this safeguard cannot be bypassed even in POCSO trials.

The case arose when the Special Judge had, on 21 April 2025, both supplied police papers and framed charges against the accused on the very same day.

The accused challenged this procedure before the High Court under Section 528 BNSS, contending that he had been denied the opportunity to file a discharge petition.

The prosecution defended the order, arguing that charges were framed only after hearing both sides and that no illegality had occurred.

The High Court disagreed, holding that the statutory scheme does not permit same-day supply of papers and charge framing.

Court noted that Section 250 BNSS allows the accused 60 days from the date of committal to file a discharge application, while Section 251 requires that charges be framed within 60 days from the first hearing on charge.

In POCSO cases, where there is no committal as Special Courts directly take cognizance under Section 33(1) of the Act, the 60-day discharge period must be counted from the date the accused first appears and receives police papers.

The Court observed that the BNSS provisions must be read harmoniously with the POCSO Act. While the POCSO Act stresses speedy trial and requires recording the child victim's evidence within 30 days of cognizance, it does not exclude the procedural safeguards available under BNSS.

Section 31 of the POCSO Act explicitly applies the Code of Criminal Procedure (now BNSS) to Special Courts, unless inconsistent. Therefore, the right to seek discharge under Section 250 BNSS continues to apply.

In its reasoning, the Court drew on Supreme Court precedents emphasising the importance of fair hearing at the stage of charge.

In Ajay Kumar Parmal v. State of Rajasthan (2012) 12 SCC 406 and CBI v. K. Narayana Rao (2019) 9 SCC 512, the Top Court held that trial courts must meaningfully consider records and documents before framing charges, and cannot act as a post office for the prosecution.

The Court also cited Bashira v. State of U.P. (1968 SCC OnLine SC 84), where a conviction was set aside after the accused’s counsel had no real opportunity to prepare.

Further, reliance was placed on Zahira Habibulla Sheikh v. State of Gujarat (2004) 4 SCC 158, also known as the Best Bakery case, where the Supreme Court stressed that criminal trials must be a search for truth, not a formality, and that fair hearing is intrinsic to justice. In Anokhilal v. State of M.P. (2019) 20 SCC 196), the Court set aside a conviction where an amicus was appointed and charges framed on the same day, reiterating that speed cannot override fairness.

The Court, furthermore, noted that offences under Section 6 of the POCSO Act, coupled with Section 65(2) BNSS, carry severe punishment, including the possibility of life imprisonment or death. In such cases, it is all the more necessary to ensure that the accused is afforded adequate time and opportunity to defend himself. While speedy trial is an objective, it cannot come at the cost of fairness.

The High Court therefore quashed the order framing charges on the same day as supply of documents.

It directed that the matter be reconsidered de novo from the stage of discharge. The accused was allowed to file a discharge application within two weeks, which the Special Court must decide within four weeks before proceeding to frame charges in accordance with law.

To prevent recurrence of similar procedural lapses, the Court also issued guidelines. It clarified that in POCSO trials, the date of first appearance of the accused after cognizance shall be treated as the “date of committal” for purposes of Section 250 BNSS. From that date, the accused must be provided police papers and given 60 days to seek discharge. Only after this period, or upon the accused expressly waiving the right by filing a memorandum, may the Special Court proceed to frame charges within 60 days of the first hearing on charge, as required by Section 251 BNSS.

By setting out this framework, the Court harmonised the objectives of the POCSO Act and BNSS, ensuring speedy trial for child victims, while also preserving the fundamental right of the accused to a fair hearing.

Case Title: Narottam Prusty v. State of Odisha & Anr.

Date of Decision: September 22, 2025

Bench: Justice Aditya Kumar Mohapatra