Calcutta HC Sets Aside POCSO Charges Framed Before Complete Papers, Says Accused Get 60 Days To Seek Discharge

The petitioner challenged the order dated 3 December 2025 framing charges under Sections 127(2) and 351(3) of the Bharatiya Nyaya Sanhita, 2023 (BNS), read with Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

He had sought missing prosecution documents, including seizure lists and medical reports. On 24 October 2025, the Special Court directed that copies be supplied and fixed 17 November for supply and consideration of charge; the matter was later listed on 3 December for the same purposes.

On 3 December, the court framed charges without addressing whether the missing documents had been supplied.

The petitioner argued that this deprived him of a meaningful opportunity to seek discharge before charge was framed.

Sections 230–232 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) govern supply of prosecution documents and the related proceedings; the court must be satisfied that the required copies have been supplied before proceeding.

Sections 250 and 251 BNSS provide for discharge and framing of charge in sessions cases, while Section 262(1) allows an accused in a warrant case instituted on a police report to seek discharge within 60 days of supply of documents under Section 230.

The POCSO Act contains no separate procedure for discharge or framing charge; Sections 31 and 33(9) apply the criminal procedure code, now the BNSS, to proceedings before a Special Court.

Section 35 POCSO requires the child’s evidence to be recorded within 30 days of cognizance, but the court held that the BNSS discharge procedure applies where the POCSO Act provides no specific procedure on that subject.

The court relied on Article 21’s fair-trial guarantee and authorities including Md. Hussain v. State (Government of NCT, Delhi), (2012) 9 SCC 408, and Anokhilal v. State of M.P., (2019) 20 SCC 196, on fairness in criminal proceedings.

It also referred to Ajoy Kumar Banerjee v. Union of India, (1984) 3 SCC 127, and S. Prakash v. K.M. Kurian, (1999) 5 SCC 624, on the relationship between general and special laws.

The Special Court had itself ordered supply of the missing documents, yet framed charges without resolving whether that direction had been complied with.

The High Court held that the accused must receive the complete set of prosecution documents before the discharge and charge stages can proceed.

Because the POCSO Act does not prescribe a distinct discharge procedure, the BNSS applies; the 60-day period for seeking discharge must be reckoned from supply of the complete set of prosecution documents, rather than from cognizance or an incomplete supply.

Proceeding to frame charge without that opportunity was inconsistent with the statutory procedure and the accused’s fair-trial rights.

It directed the Special Court to supply the complete set of prosecution documents within two weeks.

The accused may apply for discharge within 60 days after receiving those documents; if he does not intend to seek discharge, he must communicate that intention upon receipt, after which charge hearing may proceed.

Any discharge application must be decided within 60 days of filing.