Framing charges without affording accused opportunity for discharge under BNSS Section 262(1), hearing, or legal aid to custodial accused violates mandatory procedure; order set aside and remanded.

JUDGMENT :

RAM MANOHAR NARAYAN MISHRA, J.

1. Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record.

2. By means of the instant criminal revision filed under Section 438 read with 442 B.N.S.S 2023, the revisionist is assailing the validity of the order dated 03.01.2026 passed by learned Special Chief Judicial Magistrate (Customs), Lucknow, in criminal case bearing W/S Case No. 121571 of 2025 (State of U.P. Vs. Baburao Sambhaji Maali and others) registered at Police Station Gosaignaj, District Lucknow, under Section 336 (3), 338, 340(2) and 61(2) B.N.S an 66 D of I.T Act. By the impugned order, the learned trial court has framed charges against the revisionist under said penal sections. The revisionist has prayed to issue a direction to afford the revisionist an effective opportunity to prefer an application for discharge under section 262(1) of the B.N.S.S and to consider and decide the same in accordance with law.

3. Learned counsel for the revisionist submits that the informant in the present case lodged an FIR at the concerned Police Station on 30.06.2025 stating that he had received a message on his Facebook Messenger as well as on his WhatsApp number from some unknown person through a mobile number 9763951991. Through the said number, certain photographs and videos were sent to him offering the sale of banana plants.The unknown caller sent a DBT certificate to gain the trust of the informant. After receiving the same, the informant agreed to purchase the banana plants. Falling into the trap of the unknown caller, he transferred total amount of Rs. 29,25,000/- into different bank accounts provided by the fraudster for the purchase of banana plants.

4. During the course of investigation, it emerged that the revisionist was in contact with the main accused Baburao Sambhaji Maali and three bank account holders, namely, Mohd. Rafeeq, Shiv Kumar and Basappa. It is alleged that the revisionist had introduced the main accused Baburao Sambhaji Maali and the three bank account holders, whose accounts were used for transferring the said amount from the account of the complainant. 5. Learned counsel for the revisionist further submits that the revisionist is neither a beneficiary of the alleged amount nor is there any allegation that any part of the said amount was received in his bank account.

6. He further submits that the learned trial court has framed charges in violation of the statutory provisions of Sections 261, 262(2), 263 and 341 BNSS. The revisionist is still in custody in connection with the said offences along with the other accused persons. He further submits that the revisionist has not been given any opportunity to file discharge application despite of the statutory requirement in this regard. The revisionist was not provided any legal aid counsel as required under Section 341 at the stage of framing of charge. In fact, no proper opportunity of hearing, whatsoever, was given to the revisionist before framing of charges against him. The ingredients of the various offences are not made out against the revisionist. Even the framing of charges is contrary to the statutory mandate and it depicts non-application of mind.

7. Learned counsel for the revisionist placed reliance upon the judgment of the Hon'ble Supreme Court in the case of State of U.P. Vs. Singhara Singh and others ; AIR 1964 SC 358, wherein it is held that,' where a power is given to do a certain thing i