AP High Court Sets Aside POCSO Charge Order Framed Without Hearing Accused, Resolves BNSS-POCSO Procedural Conflict

The Andhra Pradesh High Court set aside a charge-framing order in a POCSO case, holding that the Special Court denied accused persons their statutory right of hearing under Section 251(2) of the BNSS and failed to ascertain whether they intended to file a discharge petition under Section 250.

The High Court of Andhra Pradesh at Amaravati, in a criminal revision filed by two accused persons charged under the Protection of Children from Sexual Offences Act, 2012, set aside an order framing charges passed on 08.05.2026 by the Special Court for Speedy Trial of Offences under the POCSO Act at Ongole. Dr. Justice Y. Lakshmana Rao, sitting singly, found that the docket proceedings of the Special Court did not disclose that the accused were afforded any effective opportunity of hearing before charges were framed, and that the court had not ascertained from them whether they wished to file a discharge petition. The judgment goes beyond the immediate facts to lay down a detailed procedural framework reconciling the discharge and charge-framing timelines under the Bharatiya Nagarik Suraksha Sanhita, 2023 with the expeditious trial mandate under Section 35 of the POCSO Act — a tension that has generated repeated challenges before Special Courts.

The Dispute Before the High Court

Shaik Shahina and Syed Shabana, arraigned as Accused Nos. 2 and 3 in S.C. No. 19 of 2026, filed Criminal Revision Case No. 655 of 2026 under Sections 438 and 442 of the BNSS seeking to set aside the charge-framing order of 08.05.2026. The Special Court had charged them under Sections 6, 17, and 21 read with Sections 5(l) and 5(m) of the POCSO Act, Section 49 read with Section 64(2)(f) and (m) of the Bharatiya Nyaya Sanhita, 2023, and Section 5(b)(i) of the Immoral Traffic (Prevention) Act, 1956 — offences that carry a minimum sentence of twenty years' imprisonment extendable to death.

The petitioners' counsel, Senior Counsel C. Nageswar Rao appearing with Uday Kumar Vampugadavala, argued that the Investigating Officer found no prima facie material against them, that they were implicated solely on the basis of a second statement of the complainant recorded after an unexplained delay of about eight months, and that no material in the charge sheet, remand report, or witness statements disclosed their involvement. Critically, he argued that the Trial Court framed charges without conducting the mandatory hearing contemplated under Section 251(2) of the BNSS.

The Assistant Public Prosecutor, A. Sai Rohit, opposed the revision, contending that the charge-framing order was legal and that complainant and witness statements adequately disclosed the petitioners' involvement. The delay in recording the second statement, he submitted, was a matter for trial. Respondent No. 2's counsel, Jyothi Eswar Gogineni, raised a preliminary objection: the order was interlocutory and not an intermediate one, making the revision non-maintainable. She further submitted that the petitioners had been given ample opportunity to file a discharge petition but had neither filed one nor indicated any intention to do so, and that the Special Court had proceeded as it did to comply with Section 35 of the POCSO Act requiring expeditious trial.

Whether the Revision Was Maintainable

Dr. Justice Lakshmana Rao rejected the preliminary objection on maintainability by applying settled Supreme Court precedent. An order framing charges, the judgment holds, is neither purely interlocutory nor final — it is an intermediate order. This position flows from a line of Supreme Court decisions: Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551, Amar Nath v. State of Haryana (1977) 4 SCC 137, and V.C. Shukla v. State through CBI (1980 Supp SCC 92). An order framing charges, while not concluding the trial, is final in the specific sense that the accused's right to an order of discharge is refused once for all and he is put on trial. The bar under Section 397(2) of the Cr.P.C. against revision of interlocutory orders does not apply to such orders.

The court also referred to the Supreme Court's caution in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation (2018) 16 SCC 299: interference with charge-framing orders is warranted only in the rarest of rare cases to correct a patent error of jurisdiction, and revisional jurisdiction must be exercised judiciously. However, as the High Court found, the facts here disclosed exactly such a patent error.

The Core Procedural Violation

The Special Court had taken cognizance on 23.03.2026. The petitioners were supplied copies of case records on 21.04.2026, and their counsel entered appearance on 29.04.2026. The case was then posted to 08.05.2026 for hearing on the question of framing of charges. On that date — the 17th day after the petitioners' appearance — the Special Court framed charges.

On a careful reading of the docket proceedings dated 08.05.2026, the High Court found that the record did not disclose that the petitioners were afforded an effective opportunity of hearing before charges were framed. The order was also silent on whether the accused had filed, or were afforded an opportunity to file, an application for discharge. The court recorded: “the docket proceedings do not disclose that an opportunity of being heard, as contemplated under Section 251(2) of the BNSS, was afforded to the Petitioners before framing the charges.”

Section 251(1) of the BNSS requires charges to be framed only “after such consideration and hearing as aforesaid” — an expression that unmistakably refers to the procedure under Section 250, which governs discharge. Under Section 250, the court must hear both the accused and the prosecution before determining whether sufficient grounds exist to proceed. The High Court held that these are substantive judicial safeguards, not mere procedural formalities, and the duty of independent evaluation cannot be treated as a ritualistic step.

Resolving the BNSS-POCSO Procedural Conflict

The judgment addresses a specific legislative tension that has caused confusion before Special Courts. Section 250(1) of the BNSS gives an accused sixty days from the date of committal under Section 232 to file a discharge application. Section 35(1) of the POCSO Act requires the Special Court to record the child victim's evidence within thirty days of taking cognizance. The two timelines appear to conflict.

The POCSO Act, however, does not prescribe any independent procedure for discharge or charge-framing. Section 33(1) of the POCSO Act empowers the Special Court to take cognizance directly upon a police report, without commitment. Section 31 of the POCSO Act deems the Special Court a Court of Session and applies the BNSS procedurally, unless the POCSO Act provides otherwise. Section 33(9) requires the Special Court to exercise all powers of a Court of Session and conduct the trial in accordance with BNSS procedure for Sessions trials.

Since no committal occurs under the POCSO Act, the reference in Section 250(1) of the BNSS to “the date of commitment under Section 232” has no direct equivalent. The High Court addresses this gap by purposive interpretation. Drawing guidance from Section 262 of the BNSS — which governs discharge in warrant cases on police reports and reckons the sixty-day period from the date copies of documents are furnished under Section 230 — the court holds that in POCSO prosecutions, the sixty-day period under Section 250(1) should run from the date the accused is supplied with police papers and documents under Section 230.

Taking this further, the High Court holds that in the specific context of POCSO trials where no committal takes place, the expression “date of commitment” in Section 250 should be understood to mean the date on which the accused first appears before the Special Court after cognizance is taken under Section 33(1). The sixty-day period for filing a discharge application therefore commences from the date of such first appearance.

The apparent inconsistency between the two timelines is resolved by harmonious construction. The court applies the rule that where two statutes can be read so as to give effect to both, they must be read that way. Section 35 of the POCSO Act prescribes timelines for expeditious trial; Section 250 of the BNSS confers a substantive procedural right to seek discharge. Neither provision expressly excludes the other. A Special Court must preserve the accused's discharge right while adhering to the expeditious trial mandate. The POCSO Act being a special enactment prevails over the BNSS where an irreconcilable conflict exists, but here no irreconcilable conflict was found.

The High Court surveyed the governing principles of harmonious construction at length, drawing on a series of Supreme Court decisions including CIT v. Hindustan Bulk Carriers (2003) 3 SCC 57, Sultana Begum v. Prem Chand Jain (1997) 1 SCC 373, Ashoka Marketing Ltd. v. Punjab National Bank (1990) 4 SCC 406, and KSL & Industries Ltd. v. Arihant Threads Ltd. (2015) 1 SCC 166. The court distilled these into five governing principles: harmonious construction is the first rule; implied repeal is not favoured; general law yields to special law; a later special law may prevail over an earlier general law; and even where non-obstante clauses exist, courts must attempt harmonisation before giving one statute overriding effect.

Procedure Prescribed for Special Courts

Given the confusion before Special Courts, the High Court issued directions for the procedure to be followed at the discharge and charge-framing stage in POCSO prosecutions. The judgment specifies that if an accused does not intend to seek discharge under Section 250 of the BNSS, that intention must be expressly recorded in a written memorandum signed by the accused and filed before the Trial Court as early as possible from the date of supply of copies of the case record. Such memorandum will signify a conscious waiver of the right to file a discharge application, whereupon the court may proceed to consider framing of charge.

The High Court also emphasised that Section 227 of the Cr.P.C. — now Section 250 of the BNSS — does not make the filing of a formal discharge application a condition precedent for the court to consider discharge. The court at the charge stage must apply its judicial mind to the material, examine the broad probabilities of the case, and satisfy itself that the material gives rise to a prima facie inference of the offence alleged. It is not expected to be a mere conduit for the prosecution, but equally it is not required to conduct a meticulous evaluation of probative value.

Balancing Expedition and Fairness in Grave Offences

The court emphasised that the severity of the charges against the petitioners — offences carrying a minimum sentence of twenty years' imprisonment and potentially extending to death — made strict adherence to procedural safeguards especially important. Speed in adjudication, while a legitimate objective, cannot override the fundamental requirements of due process or erode the statutory protections available to an accused. A meaningful hearing at the charge stage necessarily requires that the accused and counsel have sufficient opportunity to acquaint themselves with the materials before the court proceeds to determine whether a prima facie case exists.

The right to a fair trial under Article 21 of the Constitution of India was central to the court's reasoning. The statutory period for filing a discharge application is not an idle formality but a substantive procedural safeguard. The court also noted, however, that the petitioners themselves did not submit before the Trial Court that they intended to file a discharge petition, nor did they seek a reasonable opportunity for that purpose rather than waiting for the sixty-day period to expire.

Order

The High Court set aside the order dated 08.05.2026 framing charges in S.C. No. 19 of 2026 and disposed of Criminal Revision Case No. 655 of 2026 with the following directions:

1. The petitioners shall file a discharge application under Section 250 of the BNSS within fifteen days from the date of the order (i.e., from 06.07.2026).
2. Upon such application being filed, the Special Court shall dispose of it within two weeks after affording sufficient opportunity of hearing to both sides.
3. If the discharge application is dismissed, the Special Court shall hear both sides before framing charges, either on the same day or within one week thereafter.
4. The Special Court shall thereafter fix the case for trial and conclude it as expeditiously as possible.
5. The petitioners shall extend full cooperation to the Special Court to ensure compliance with the above directions.

There was no order as to costs.