IMPORTANT POINT
The court established that the sufficiency of evidence is crucial for proceeding with a trial, and legislative ambiguities regarding discharge applications need clarification.

ORDER :

This Criminal Revision Petition has been filed under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS' for short hereinafter) by the petitioner/sole accused in S.C No.1236/2023 on the files of the Fast Track Special Court, Kollam, challenging the order in Crl.M.P.No.292/2024 dated 24.07.2024, whereby the application for discharge moved by the petitioner was dismissed by the learned Special Judge.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor on admission. Perused the order impugned.

3. The prosecution allegation herein is that the accused offered to marry the victim after maintaining a love affair. Thereafter, the accused took the victim at a rental house at Vavakunnu, Parippally and subjected her to sexual intercourse on 21.03.2023 promising to marry her. Again, she was subjected to sexual intercourse on 05.03.2023, repeating the promise of marriage. On this premise, prosecution alleges commission of offence punishable under Section 376(2)(n) of the Indian Penal Code ('IPC' for short hereinafter).

4. In this matter, FIR was registered vide Crime No.321/2023 of Parippally Police Station. On investigation, final report filed justifying the allegation and now the matter has been pending as S.C.No.1236/2023 on the files of the Fast Track Special Court, Kollam. Before start of trial, the petitioner filed an application under Section 227 of the Code of Criminal Procedure ('Cr.P.C.' for short hereinafter) seeking discharge. The learned Special Judge, after analysing the prosecution materials, found that going by the statements given by the victim as CW1, the house owner as CW2 and other witnesses cited in the final report filed under Section 173(2) of Cr.P.C., there are materials to go for trial and accordingly, the discharge petition was dismissed.

5. While assailing the order, the learned counsel for the petitioner/accused reiterated the contention before the trial court affirming that no materials prima facie available to find commission of offence punishable under Section 376(2)(n) by the accused and therefore, the order impugned would require reversal.

6. The learned Public Prosecutor fervently opposed the prayer, pointing out prosecution materials, which would prima facie suggest offence under Section 376(2)(n) of IPC, warranting trial of the accused.

7. The materials to be considered at the time of discharge have been stated in Section 227 of Cr.P.C. The same reads as under;

227. Discharge - 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.

8. Section 250(2) is the pari materia provision in the BNSS corresponding to Section 227 of Cr.P.C. Section 250(1) is a new provision introduced in the BNSS. Sections 250(1) and (2) read as under;

250. Discharge - (1) The accused may prefer an application for discharge within a period of sixty days from the date of commitment of the case under section 232.

(2) 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.

9. It is discernible that in Section 250 of BNSS, Sub-section (1) provides that the accused may prefer an application for discharge within a period of sixty days from the date of commitment of the case under Section 232. Sub-section (1) of Section 250 of BNSS is a new provision which prescribes a period of sixty days to prefer an application by the accused for discharge from the date of committal of the case. In fact, no such time limit fixed in Section 227 of Cr.P.C. B