Pankaj Chauhan vs State Of U.P. Thru. Prin. Secy. Home Lko. And 4 Others

HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
APPLICATION U/S 528 BNSS No. - 1110 of 2026
Reserved
AFR
Pankaj Chauhan
.....Applicant(s)
Versus
State Of U.P. Thru. Prin. Secy. Home Lko. And 4
Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Harendra Singh, Satish Kumar Sharma
Counsel for Opposite Party(s) : G.A., Rajesh Kumar Gupta
Court No. - 15
HON'BLE SHREE PRAKASH SINGH, J.
Heard Dr. Amrendra Nath Tripathi, learned Senior Counsel, Amicus,
1.
assisted by Mr. Sanjeev Kumar Mishra, Mr. Harendra Singh and Mr. Satish
Kumar Sharma, counsels for the applicant, Mr. Aniruddha Kumar Singh,
learned A.G.A.-I assisted by Mr. Rajnish Kumar Verma, Mr. Sushil Kumar
Pandey, Ms. Nusrat Jahan, Mr. Bhaskar Mall, Mr. Bishwa Nath Nishad and
Mr. Nirmal Kumar Pandey, learned A.G.A.s. for the State.
By preferring the present application, the applicant has assailed the
2.
summoning order dated 28th February, 2026 passed by the Additional
District and Sessions Judge/Special Judge POCSO, Maharajganj, in Sessions
Trial No. 0109/2026 (State of U.P. vs. Pankaj) and the charge sheet dated
07th February, 2026 has also been challenged. Further prayer is made for
quashing of the criminal proceeding of the abovenoted S.T. case.
3. As per the prosecution story, the mother of the victim lodged an FIR
alleging therein that the applicant Pankaj Chauhan was in love with the
daughter of complainant, namely Sonakshi Chauhan, having 17 years of age,
under the state of threat and coercion, he made physical relations with her
and as soon as it was informed to her on 8th February, 2025, the complainant
told the aforesaid facts to the parents of the applicant and called upon them

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for solving the said issue, but they didn't turn up, thus, the information was
given to the police station with a request of lodging the First Information
Report against the accused person.
It is argued by counsel for the applicant that in the statement of the victim
4.
recorded under Section 180 and 183 of BNSS, is evident that the alleged
victim was acquainted with the applicant for last six months from the date of
incident and both were in love and because of the denial on the part of the
applicant for solemnizing the marriage, under the state of grievance, the FIR
is lodged. He added that the alleged victim was major at the time of the said
incident and the false story has been coined. He submitted that the
Investigating Officer in a cursory manner has conducted the investigation
and ignored the fact of the alleged victim being major as well as the
contradiction in the statement under Sections 180 and 183 of the BNSS.
He contends that the alleged victim has been shown as minor only with
5.
view to give the severity to the charges leveled in the First Information
Report and to put the matter under the offence of POCSO Act.
6. After the aforesaid arguments, counsel for the applicant submits that the
interest of justice would subserve if this Hon'ble Court may please to give
the liberty to the applicant to move discharge application before the trial
court through his counsel, and the trial court may be directed to consider and
decide the same within the time stipulated by this court.
Per contra, counsel appearing for the State has opposed the contentions
7.
above noted and submitted that the nature of the allegation is serious. He
submits that the Investigating Officer, after collecting the documentary
evidence, found that the victim is minor and filed the charge sheet under
Section 77, 64(1) of BNS and under Section 3/4 of POCSO Act. Lastly, he
submitted that the applicant has not been enlarged on bail and therefore he
cannot be given liberty to move discharge application.
Learned Amicus Dr. Amrendra Nath Tripathi, appearing has submitted
8.
that there is no bar for moving the discharge application prior obtaining the
bail. He submits that the provision of exemption at two stages are provided;
first, that Section 205 of Cr.P.C. (section 228 of BNSS), which is the stage
prior issuance of the summons, and second, the provision of Section 317 of
Cr.P.C. provides the provision of exemption from personal appearance in
trial before the Magistrate as well as the Court of Sessions, therefore, bail is

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3
not a need for moving the discharge application before the trial.
9. Having heard learned counsel for the parties and after perusal of record, it
transpires that the counsel for the applicant, after arguing on merits, has
sought relief that the liberty may be given to the applicant to move discharge
application through counsel, though fact remains that the applicant has not
been enlarged on bail yet. The objection is taken by the counsel for the State
that the discharge application is not maintainable unless the accused is
enlarged on bail. In the light and view of the aforesaid, two questions
cropped up for consideration:
(i) Whether the discharge application filed on behalf of accused is
maintainable without obtaining bail?
(ii) Whether the application for exemption from attendance of an accused is
maintainable without obtaining bail?
It is discernible that the word "discharge" has not been defined either in
10.
the Code of Criminal Procedure, 1973 (hereinafter referred to as "Code") or
under Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as
"BNSS"). The inference can be drawn from the various pronouncement of
the Apex Court as well as of this Court regarding the word "discharge",
which can be termed as pre-trial mechanism where a court terminates
proceeding against an accused if it finds that such charges are "groundless"
or lacking in prima facie evidence. Thus, it is an important safeguard of an
accused from undergoing an unwarranted trial.
11. It is noteworthy that the provisions for discharge in Cr.P.C. are mainly
found under Section 239 in the matter of warrant cases (Magistrate trial) and
under Section 227 of Cr.P.C. in the matter of Sessions trial. The provisions
of Section 239 and 227 of Cr.P.C. are read as under:-
"Section 239- When accused shall be discharged.
If, upon considering the police report and the documents sent with it under Section
173 and making such examination, if any, of the accused as the Magistrate thinks
necessary and after giving the prosecution and the accused an opportunity of being
heard, the Magistrate considers the charge against the accused to be groundless, he
shall discharge the accused, and record his reasons for so doing.
Section 227- Discharge

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If, upon consideration of the record of the case and the documents submitted
therewith, and after hearing the submissions of the accused and the prosecution in this
behalf, the Judge considers that there is not sufficient ground for proceeding against
the accused, he shall discharge the accused and record his reasons for so doing."
12. A bare perusal of the above-noted provisions are apparent that under
Section 239 of Cr.P.C., an accused can be discharged if the Magistrate is of
considered opinion that charges against such accused are groundless, and
while doing so, such Magistrate shall record his satisfaction. Provision of
Section 227 of Cr.P.C. provides the power of discharge, which in fact can be
invoked on the ground that there is no sufficient ground for proceeding
against the accused while recording its reason and ultimately, the provision
of Section 245 of Cr.P.C. empowers the Magistrate for invoking the
provision of discharge in complaint cases. In Indian criminal law, there is no
statutory provision for discharge in summons cases, whereas, Section 251 of
Cr.P.C. says as follows:-
"251. Substance of accusation to be stated.
- When in a summons-case the accused appears or is brought before the Magistrate,
the particulars of the offence of which he is accused shall be stated to him, and he
shall be asked whether he pleads guilty or has any defence to make, but it shall not be
necessary to frame a formal charge."
Having gone through the above-noted provision of discharge provided
13.
under the Code, it reveals that there is no overt provision regarding the stage
of moving the discharge application before the trial court and further, there
is no provision for personal exemption before the trial court while moving
such discharge application. However, there are certain provisions for
exemption from personal appearance as enshrined under Section 205 of
CrPC / Section 228 of BNSS and Section 317 of CrPC / Section 355 of
BNSS, which are given as follows for ready reference:-
" Section 228. Magistrate may dispense with personal attendance of accused.
(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do,
dispense with the personal attendance of the accused and permit him to appear by his
advocate.
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any
stage of the proceedings, direct the personal attendance of the accused, and, if
necessary, enforce such attendance in the manner hereinbefore provided.

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355. Provision for inquiries and trial being held in absence of accused in certain
cases.
(1) At any stage of an inquiry or trial under this Sanhita, if the Judge or Magistrate is
satisfied, for reasons to be recorded, that the personal attendance of the accused
before the Court is not necessary in the interests of justice, or that the accused
persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the
accused is represented by an advocate, dispense with his attendance and proceed with
such inquiry or trial in his absence, and may, at any subsequent stage of the
proceedings, direct the personal attendance of such accused.
(2) If the accused in any such case is not represented by an advocate, or if the Judge
or Magistrate considers his personal attendance necessary, he may, if he thinks fit and
for reasons to be recorded by him, either adjourn such inquiry or trial, or order that
the case of such accused be taken up or tried separately.Explanation.-For the purpose
of this section, personal attendance of the accused includes attendance through audio-
video electronic means."
14. Bare perusal of the above-noted provisions, it is abundantly clear that the
provisions do not disclose that whether those are available prior an accused
is enlarged on bail, but the conjoint reading of the provision of Section
205/317 of CrPC with the provisions of discharge given in the Code, it
transpires that there are two stages of exemption of personal appearance.
The first stage is the provision of Section 205 of CrPC, which says that
15.
the Magistrate while issuing summons, may dispense with the personal
attendance of the accused and permit him to appear through his pleader
while recording the reasons for so doing.
16. Further, the provision of Section 317 of Code provides that if the Judge
or is satisfied for reasons to be recorded, in any inquiry or trial
Magistrate
under the Code, the personal attendance of the accused may be dispensed
with and it can be opened that accused be represented by a pleader.
. The above-noted provision has a vast application as the same applies to
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the warrant and session cases both and and the stage is also elaborated, that
is the stage of inquiry or trial as prescribed under the Code.
18. Apart from the aforesaid provisions, this Court has been conferred with
the inherent powers under Section 482 of Cr.P.C. / Section 528 BNSS with
non-obstante clause, which reads as under:-
"528. Saving of inherent powers of High Court.

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Nothing in this Sanhita shall be deemed to limit or affect the inherent powers of the
High Court to make such orders as may be necessary to give effect to any order under
this Sanhita, or to prevent abuse of the process of any Court or otherwise to secure the
ends of justice."
19. It is abundantly clear from the above-noted provision that while invoking
inherent powers in order to "prevent abuse of process" and in order "to
secure ends of justice", this Court can invoke its inherent power to either
exempt the personal appearance of the accused at the time of the decision of
discharge application in exceptional cases while recording the reasons. In
fact, there can be no restriction on the inherent power of this Court if there is
exigency to secure the ends of justice. Further, invoking the inherent power,
this Court can direct the trial court to consider the exemption from personal
appearance on an application moved under Section 317 of Cr.P.C. / Section
355 BNSS.
It is held that the power be used sparingly for granting exemption. If the
20.
exemption is deemed then this can be used.
It is of worth consideration that there is no bar of any kind on moving a
21.
discharge application and on consideration on the same by the trial court
without obtaining the bail, whereas, when this Court read collectively the
provision of Section 317 and 205 along with Section 239, 227 and 245 of
Cr.P.C., it transpires that there is a route provided from exemption of
personal appearance in a cases where the reason requires to do so.
I am also aware of the law rendered by the Apex Court in case of
22. Sharif
reported in
Ahmed and Another v. State of Uttar Pradesh and Another,
, wherein paragraph 79 it has been
(2024) 14 Supreme Court Cases 122
held as under:-
"Further, the observation that there is no provision for granting exemption from
personal appearance prior to obtaining bail, is not correct. as the power to grant
exemption from personal appearance under the Code should not be read in a
restrictive manner as applicable only after the accused has been granted bail. This
Court in Maneka Sanjay Gandhi v. Rani Jethmalani 40 held that the power to grant
exemption from personal appearance should be exercised liberally, when facts and
circumstances require such exemption.41 Section 205 states that the Magistrate,
exercising his discretion, may dispense with the personal attendance of the accused
while issuing summons, and allow them to appear through their pleader. While
provisions of the Code are considered to be exhaustive, cases arise where the Code is

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silent and the court has to make such order as the ends of justice require. In such
cases, the criminal court must act on the principle, that every procedure which is just
and fair, is understood as permissible, till it is shown to be expressly or impliedly
prohibited by law."
23. The Hon'ble Supreme Court has observed that it is not a correct position
that provision of granting the exemption for personal appearance prior to
obtaining bail is missing. The Hon'ble Supreme Court in case of
Maneka
reported in , has
Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167
categorically held that power to grant exemption from personal appearance
should be exercised liberally when it requires under the facts and
circumstances of the case.
24. Now, I am of the considered opinion that Section 317 and 205 of the
Code is very much there and, therefore, the same should not be read in a
prohibitory or restrictive manner that the same cannot be invoked prior to
grant of bail.
In view of the above noted submissions and discussions, the question
25.
framed as above, are answered positively, as follows:-
(i) The discharge application can be preferred, by an accused, without
applying/obtaining bail.
(ii) Generally, the exemption from attendance of an accused is not permitted
except apart the provision prescribed under Section 205 of Cr.P.C.(228
BNS), which can be exercised by the Magistrate prior summoning the
accused. Further the power u/s 317 Cr.P.C. (355 BNS) can be exercised by
the learned Magistrate or court of Session. It is held that an accused can
institute an application u/s 317 of Cr.P.C.(section 355 of BNS) for his
exemption, from personal attendance before the trial court along with the
discharge application, with cogent and substantial grounds.
26. Undoubtedly, the High Court invoking the inherent power, can exempt
the personal attendance of an accused, in any proceeding, with cogent
reasons.
So long as the case in hand is concerned, the applicant has sought liberty
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to move discharge application through counsel. The reason for exemption of
appearance has not been elaborated in the affidavit filed in support of the
application, therefore, the liberty is given to the applicant to move discharge

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application along with the application under Section 317 of Cr.P.C. seeking
exemption from personal appearance, before the trial court, if he so desires,
within period of fifteen days from the date of pronouncement of this order,
in-turn, the trial court is directed to consider and decide the same, in
accordance with law, expeditiously.
With the aforesaid observations, the instant application is hereby
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decided.


October 26, 2026
Mayank
(Shree Prakash Singh,J.)
Digitally signed by :-
MAYANK PRATAP SINGH
High Court of Judicature at Allahabad,
Lucknow Bench