Source: Kerela High Court 

Why in News? 

A bench of Justice A. Badharudeen directed the authorities to consider the legislative vacuum for application of Section 250 (1) of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) in cases where committal is not possible.                 

• The Kerela High Court held this in the case of Sajith v. State of Kerela. 

What was the Background of Sajith v. State of Kerela Case? 

• The prosecution has alleged that the accused offered to marry the victim after maintaining a love affair. 
• The accused took the victim to the rental house and had sexual intercourse with her promising to marry her. 
• Again, she was subjected to sexual intercourse in another instance with repeated promise of marriage. 
• Thus, it was alleged that the offence under Section 376 (2)(n) of Indian Penal Code, 1860 (IPC) has been committed by the accused. 
• The First Information Report was registered and a final report in this matter was filed justifying the allegation. 
• The petitioner filed an application for discharge under Section 227 of Criminal Procedure Code, 1973 (CrPC) seeking discharge even before the trial could start. 
• This petition was dismissed by the learned Special Judge. 
• Hence, a criminal revision petition was filed under Section 438 and Section 442 of BNSS challenging the order of the Special Judge. 

What were the Court’s Observations?  

• Section 250 (1) is a new provision introduced in BNSS which provides that the application for discharge may be filed within 60 days from the date of commitment under Section 232. (There was no such time limit under CrPC) 
• Section 250 of BNSS- Mandatory or Directory: 
  • The Court in order to interpret this provision referred to Section 330 of BNSS which is a pari materia provision to Section 294 of CrPC.  
  • The Court compared the two provisions as follows:

• Section 330 (1) of BNSS has been included by the Legislature and a time limit of 30 days has been provided and the words used are ‘shall’. 
  • Thus, the Court observed that Section 330 (1) is mandatory and there is a provision to relax the time limit provided within the provision itself. 
• While comparing Section 250 (1) of BNSS with Section 330 (1) of BNSS the Court held that in the former case the words used are ‘may’ which gives the discretion to the Court to relax the time limit and therefore, no proviso to relax the time limit is provided. 
• Therefore, the Court held that even after the expiry of 60 days the petition for discharge can be considered because the provision is directory and not mandatory. 
• 60 Days in Section 250 (1) - Counted from which day in cases where committal not possible: 
  • The Court further observed that there was a legislative vacuum as to the time from which the period of 60 days should be calculated. 
  • In those cases where the committal is done the statutory wordings of Section 250 (1) are sufficient, however, nowadays, there are several Special Courts where the question of committal does not arise. It is in relation to such later cases that there is a legislative vacuum. 
  • For the purposes of these cases the Court took help of Section 262 of BNSS which delas with discharge of accused in warrant cases which is pari materia to Section 239 of CrPC. 
  • Section 262 (1) of BNSS provides that the accused in a warrant case may prefer an application for discharge within a period of 60 days from the date of supply of copies of document under Section 230. 
  • Thus, in those cases where committal doesn’t arise the starting point would be counted from the date of supply of copies of document.  
• In the present facts the Court held that the question as to whether the consent was vitiated by misconception of fact is a matter of evidence and can only be addressed after the trial. 
• Therefore, the Court held that the dismissal of plea of discharge is justified. 
• Further, the Court also asked the Department of Home Affairs and Department of Law and Justice to consider the legislative vacuum for application of Section 250 (1) of BNSS.

What is Section 250 of BNSS? 

• Section 250 of BNSS finds place in Chapter XIX of BNSS which provides for Trial Before a Court of Session. 
• The provision deals with Discharge. 
• Section 250 (1) provides the time limit for filing an application for discharge. 
  • 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.  
• Section 250 (2) is a reproduction of Section 227 of CrPC. 
  • It provides that the judge shall discharge and record reasons for the same if: 
    • Upon consideration of the record of the case and the document submitted therewith and 
    • After hearing the submission of the accused and the prosecution  
    • The Judge considers there is no sufficient ground for proceeding against the accused. 
• It is to be noted that the time limit of 60 days is a new addition done in BNSS. There was no such time limit in CrPC.