It is discernible that in Section 250 of BNSS, Sub-section (1) provides that the accused may prefer an application for discharge within a period of sixty days from the date of commitment of the case under Section 232.
Sub-section (1) of Section 250 of BNSS is a new provision
which prescribes a period of sixty days to prefer an application
by the accused for discharge from the date of committal of the
case. In fact, no such time limit fixed in Section 227 of Cr.P.C.
But it is noticed that there is lack of clarity or legislative
vacuum in the matter of starting point of sixty days in Section
250(1) of BNSS. It is true that in cases where the procedure of
committal is necessary, the statutory wordings in Section
250(1) of BNSS regarding the starting point of sixty days, is so
clear. But, now a days many Special Courts, viz., Special Court
under the Narcotic Drugs and Psychotropic Substances Act, the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, Special Court under the Protection of Children
from Sexual Offences Act, etc., proceedings are going before
the Special Court during the crime stage itself where committal
doesn't arise. In relation to such cases, the starting point to
count sixty days period to file discharge petition as provided in
Section 250(1) of BNSS lacks clarity or the same is a legislative
vacuum. In this context, it is relevant to refer Section 330 of
BNSS, a pari materia provision to Section 294 of Cr.P.C. Section
330(1) provides that where any document is filed before any
Court by the prosecution or the accused, the particulars of
every such document shall be included in a list and the
prosecution or the accused or the advocate for the prosecution
or the accused, if any, shall be called upon to admit or deny the
genuineness of each such document soon after supply of such
documents and in no case later than thirty days after such
supply. First proviso to Section 330(1) stipulates that the Court
may, in its discretion, relax the time limit with reasons to be
recorded in writing. The notable distinction is that in Section
330(1) of BNSS, the time limit is preceded by the word 'shall'
and in Section 250(1) of BNSS, the time limit is preceded by the
word 'may'. Thus, it is perceivable that when the legislature
uses the word 'shall', the same is mandatory and when the
word 'may' is used, the same is discretionary. The First proviso
to Section 330(1) of BNSS has been engrafted by the legislature
and the time limit of thirty days is preceded by the word 'shall'
makes the provision mandatory. Thus proviso to relax time
also was incorporated. In Section 250(1) of BNSS, the
legislature used the word 'may' which gives discretion to the
court to relax the time limit and therefore, no proviso to relax
the time limit was engrafted by the legislature. 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. If so, the intent of the legislature to avoid
filing of discharge petition even at a belated stage in the strict
sense could not be achieved. {Para 9}
10. But the crucial aspect is lack of clarity or legislative vacuum with regard to the starting point of sixty days to file discharge petition as per Section 250(1) of BNSS, in sessions cases where no committal is possible. In this connection, it is apropos to refer Section 262(2) of BNSS, deals with discharge of an accused in warrant trial cases which is pari materia to Section 239 of Cr.P.C. Section 262(1) is a new provision equivalent to Section 250(1) of BNSS. As per Section 262(1) of BNSS, the accused in a warrant trial case may prefer an application for discharge within a period of sixty days from the date of supply of copies of documents under Section 230.
Be it so, in sessions cases where committal doesn't arise,
because of the original jurisdiction conferred upon the Special
Courts referred herein above, the principle in Section 262(1) of
BNSS can be followed till the legislature makes the starting
point in such cases with clarity and certainty, by appropriate
amendment to Section 250(1) of BNSS. Thus in such cases, the
starting point of sixty days can be counted from the date of
supply of copies of documents.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.REV.PET NO. 879 OF 2024
SAJITH Vs STATE OF KERALA
Coram: MR. JUSTICE A. BADHARUDEEN
Citation: 2024:KER:67663
Dated: 3rd day of September, 2024
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