Accused Need Not Get Bail Before Seeking Discharge, Allahabad HC Says; Exemption From Appearance Requires Cogent Grounds

The applicant challenged the charge sheet and summoning order in a POCSO sessions trial, alleging that the victim was an adult and that the case arose from a failed relationship; the State maintained that documentary evidence showed the victim was a minor.

The applicant had not obtained bail. After addressing the merits, he sought liberty to apply for discharge through counsel and asked that the trial court decide the application expeditiously.

The Court considered the discharge provisions in Sections 239, 227 and 245 of the Code of Criminal Procedure, 1973, and their BNSS context, noting that discharge is a pre-trial safeguard and that the relevant provisions do not impose a bail prerequisite.

It considered the personal-attendance provisions in Sections 205 and 317 CrPC and Sections 228 and 355 BNSS, which permit courts, subject to the statutory conditions and judicial discretion, to dispense with an accused’s personal appearance.

It also relied on the High Court’s inherent power under Section 528 BNSS to prevent abuse of process and secure the ends of justice.

In Sharif Ahmed v. State of Uttar Pradesh, (2024) 14 SCC 122, the Supreme Court held that exemption from personal appearance is not confined to cases where bail has already been granted; the Court also cited Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167, on the exercise of that discretion.

The Court found no statutory bar preventing an accused from seeking discharge before obtaining bail. It further reasoned that the provisions permitting exemption from personal attendance should not be read as available only after bail, while recognising that exemption is discretionary and must be supported by cogent and substantial grounds.

Because the applicant had not explained the grounds for exemption in his supporting affidavit, the Court left the matter for the trial court to determine on an application under Section 317 CrPC/Section 355 BNSS.

It permitted the applicant to file both applications within fifteen days and directed the trial court to consider and decide them expeditiously in accordance with law; the High Court did not decide the merits of the challenge to the charge sheet or summoning order.