Case Note & Summary
The judgment arose from a criminal writ petition filed before the High Court of Bombay at Goa challenging an order dated 26.06.2026 passed by the Additional Sessions Judge at Merces in Sessions Case (Ors) No.34/2026. The petitioners were accused in a Sessions case arising out of FIR No.26/2025 registered at Pernem Police Station for offences punishable under Sections 221, 132, 74, 75, 79, 115(2), 351(1), 303(2) read with 3(5) of the Bharatiya Nyaya Sanhita, 2023. The allegations included obstructing a Panchayat Member, assault, sexual harassment and theft of mobile phone. After investigation, a final report was filed under Section 193 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and the case was committed to the Sessions Court, where it was registered as Sessions Case (Ors) No.34/2026. On 01.04.2026, the petitioners appeared and furnished surety, and the matter was posted for arguments before charge. Subsequently, by the impugned order dated 26.06.2026, the Sessions Judge observed that in view of Section 250(1) BNSS, the accused had failed to file a discharge application within 60 days from commitment and therefore could not be given an opportunity to argue under Section 249 BNSS. The Sessions Court fixed the matter for explaining charges to the accused. The petitioners contended that the right of an accused to audience before framing of charge is not contingent on filing a formal application under Section 250(1) BNSS. They argued that Section 250(1) uses 'may' and provides a liberty, not a mandatory precondition, and that the Trial Court was not justified in denying hearing. They relied on Anand Rai v. State of Madhya Pradesh, Ambadas Kashirao Kharad v. State of Maharashtra, Surender Kumar v. Police Inspector, Mandrem Police Station, and a Karnataka High Court decision in Shri Subbaiah K. B. v. State of Karnataka. The High Court examined the scheme under Sections 249 to 251 BNSS and compared it with Sections 226 to 228 of the Code of Criminal Procedure, 1973. The Court noted that Section 249 requires the prosecutor to open the case, Section 250 provides for discharge, and Section 251 provides for framing of charge. It held that Section 250(1) uses 'may' when referring to the accused's option to file a discharge application within 60 days, whereas Section 250(2) mandates hearing of submissions of the accused and prosecution before the Judge decides whether sufficient ground exists to proceed. The Court further relied on Anand Rai, where the Supreme Court observed that the standards for discharge and framing of charge under BNSS are materially the same as under CrPC; only the procedural setting has been altered. The Court concluded that timelines inserted by the BNSS do not affect the substantive right of the accused to be heard and to demonstrate that no triable case exists. Accordingly, the High Court allowed the writ petition, quashed and set aside the impugned order dated 26.06.2026, and directed the Sessions Court to hear the petitioners before framing charges. The right of the accused to participate in the pre-charge hearing was thus affirmed as a mandatory statutory obligation under Section 250(2) BNSS, unaffected by the 60-day window for filing a discharge application.
Headnote
A) Criminal Procedure - Framing of Charge and Discharge - Accused's Right to Hearing Before Charge Not Dependent on Filing Discharge Application Within 60 Days - Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 249, 250, 251 - The petitioners challenged a Sessions Court order refusing to hear them before framing charges because they had not filed a discharge application within 60 days from commitment under Section 250(1) BNSS. The High Court held that under Section 250(2) BNSS, the Sessions Judge must hear both accused and prosecution before deciding on charge; the word 'may' in Section 250(1) indicates an option, not a precondition, and timelines under BNSS only structure procedure without curtailing the accused's right to demonstrate absence of sufficient ground for charge. Held that the impugned order was set aside and the Sessions Court directed to hear the petitioners before framing charges (Paras 7-10). B) Criminal Procedure - Comparative Analysis with Code of Criminal Procedure - Continuity of Discharge and Charge Standards - Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 249-251 and Code of Criminal Procedure, 1973, Sections 226-228 - The Supreme Court in Anand Rai v. State of Madhya Pradesh observed that the standards for discharge and framing of charge under BNSS are materially same as under CrPC, with only procedural setting altered. The High Court relied on that jurisprudence and held that the scheme under Sections 249-251 BNSS does not alter the substantive standard requiring the court to apply its judicial mind to the material (Paras 6-9).
Issue of Consideration
Whether the right of an accused to be heard before framing of charge under Section 250(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 is contingent upon filing a formal discharge application within 60 days under Section 250(1) of the same Act.
Final Decision
Writ Petition allowed; impugned order dated 26.06.2026 quashed and set aside; Sessions Court directed to hear petitioners before framing charges in Sessions Case (Ors) No.34/2026. Rule made absolute in terms of prayer clause (A).
Law Points
- Right of accused to hearing before framing charge is mandatory under Section 250(2) BNSS
- 2023
- filing of discharge application under Section 250(1) BNSS is optional and not a condition precedent for hearing
- Courts must apply judicial mind and form prima facie opinion on sufficiency of material
- timelines under BNSS do not alter substantive standard for discharge/framing charge
- procedure under Sections 249-251 BNSS mirrors Sections 226-228 CrPC.
