S. 250 BNSS | Court Has Discretion To Consider Discharge Plea Even After Prescribed Limit Of 60 Days: Kerala High Court

Justice A. Badharudeen made this pronouncement while dealing with a revision petition challenging the order of the trial court dismissing the discharge petition filed by the petitioner herein.

The petitioner was alleged to have had sexual intercourse with the victim on two different occasions on the promise of marriage.

The petitioner was alleged to have committed an offence under Section 376(2)(n) (committing rape repeatedly on a woman) of Indian Penal Code (IPC). The Court dismissed the petition saying that there is a prima facie case and a trial is required to find the truth of the matter.

Court can extend the time for filing discharge petition

Under Section 250(1) of BNSS, the accused can file a petition for discharge. The provision is as follows:

250. Discharge: (1) The accused may prefer an application for discharge within a period of 60 days from the date of commitment of the case under section 232.

The Court referred to Section 330(1) of the BNSS for interpreting this provision. Section 330(1) says that the prosecution or accused 'shall' be called upon to admit or deny the genuineness of the document filed before the court within 30 days of the supply of such documents. The first proviso to the section says that the court in its discretion 'may' extend the time within which either side be called to confirm or deny the genuineness of the document supplied.

The court inferred from this that in Section 300(1), word “shall” is used, as the time limit given is mandatory. The legislature has inserted a proviso after this whereby the court may in its discretion relax the time limit.

However, in the case of Section 250(1), the word 'may' is used. The Court held that when the word 'may' is used, it is meant to be discretionary and when the word 'shall' is used, it is meant to be mandatory. That is why, the legislature has not provided a separate provision under which court can extend the time limit provided in Section 250(1).

“Therefore, even after expiry of sixty days, a petition for discharge can be considered by the court since the time limit is not mandatory and is only directory.”

Therefore, the court held that under Section 250(1), the Court has the discretion to extend the time limit beyond the prescribed limit of 60 days.

Legislative lacuna in cases where there is no committal

The court noted that there is a legislative lacuna in cases where there is no committal. It said that the 60 days for filing a petition of discharge is counted from the date of commitment of the case.

In many special courts like special courts under the Narcotic Drugs and Psychotropic Substances Act, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act or under the Protection of Children from Sexual Offences Act, there is no stage of committal.

The Court in this matter referred to Section 262(1) of BNSS. This provision deals with discharge in a warrant trial case. In that section, it is mentioned that the accused in such cases may prefer an application of discharge within 60 days from the date of supply of copies of documents to the accused.

The Court held that in cases where there is no committal, this principle can be followed and the 60 days will be counted from the date of supply of documents. The Court added that this can be followed till the legislature makes appropriate amendments to clarify the position in such cases.

Counsel for the Petitioner: Advocates Biju C. Abraham, Thomas C. Abraham, Basil Mathew

Counsel for the Respondents: Public Prosecutor Adv. M. P. Prasanth

Case No: Crl. Rev. Pet. 879 of 2024

Case Title: Sajith v State of Kerala

Citation: 2024 LiveLaw (Ker) 585