DHIRAJ SANTOSH THORATversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:41176


                                                                            144.26revn
                                                  (1)

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                      CRIMINAL REVISION APPLICATION NO.144 OF 2026


                 Dhiraj Santosh Thorat,
                 Age: 25 years, Occu: Agriculture,
                 R/o. Plot No.36, Vishwas Nagar,
                 Mayur Park, Harsul,
                 Chhatrapati Sambhajinagar                        ….APPLICANT

                       VERSUS

                 State of Maharashtra,
                 Through Officer in Charge,
                 Police Station M.I.D.C. Cidco,
                 Chhatrapati Sambhajinagar                       ….RESPONDENT
                                                  …..
                 Mr S. J. Salunke, Advocate for Applicant
                 Ms B. B. Gunjal, APP for Respondent/State
                                                 …..
                                          CORAM : SUSHIL M. GHODESWAR, J.

                                             DATE : 31st AUGUST, 2026

                 JUDGMENT :


                 1.          The applicant is challenging the order of framing of

                 charge, dated 03/01/2026, passed by the learned Additional Sessions

                 Judge, Aurangabad in Session Case No.01/2026 below Exh.7. The

                 said charge came to framed against five accused persons, out of which

                 present applicant is accused No.2, namely, Dhiraj Santosh Thorat. In

                 view of the said order, charge came to be framed under Section 109
                                                                            144.26revn
                                      (2)

read with Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for short

“the BNS”) against the accused persons.

2.            Heard Mr Salunke, learned Advocate for the applicant and

learned APP Ms Gunjal for the respondent/State.

3.            According to learned Advocate Mr Salunke, after filing of

charge-sheet, the case came to be committed to the Sessions Court

under Section 232 of the Bharatiya Nagarik Suraksha Sanhita, 2023

(for short “the BNSS”) by learned Judicial Magistrate First Class,

Aurangabad vide order 20/12/2025. The matter before the learned

Sessions Court was for appearance on 03/01/2026, and accordingly,

accused appeared on the very first date. He further submits that, on the

very same date, the charge came to be framed for the offence

punishable under Sections 109 read with 3(5) of the BNS.


4.            He further submits that five accused persons came

to   be    charge-sheeted        in   the     Court        of   learned      Judicial

Magistrate    First     Class,    Aurangabad          in     pursuance       of    the

report    lodged   by        informant,     alleging       therein   that     in   the

intervening    night    of     21/09/2025      and 22/09/2025, the accused

persons fired bullets from the firearm with intention to kill him.

However, the informant survived, and therefore, Crime No.554/2025
                                                            144.26revn
                                 (3)

came to be registered with the Police Station M.I.D.C. CIDCO,

Aurangabad. Hence, investigation came to be completed and charge-

sheet came to be filed against the accused persons under Sections

109(1), 324(4), 49, 3(5) of the BNS; under Sections 3 and 25 of the

Arms Act, 1959, and under Section 135 of the Maharashtra Police Act,

1951.


5.          As the offence punishable under Section 109 of the BNS,

is exclusively triable by the Court of Sessions, the learned Judicial

Magistrate First Class, vide order dated 20/12/2025 committed the said

case to the Sessions Court, Aurangabad. Vide said order, accused

persons were directed to remain present before the learned Sessions

Court, Aurangabad on 03/01/2026. They appeared before the learned

Sessions Judge on the 03/01/2026. On the very same date, charge

came to be framed against the accused persons by the learned Sessions

Court.


6.          Mr Salunke. Learned Advocate for the applicant submits

that Section 250 of the BNSS, particularly sub-section (1) provides

that 60 days time has been prescribed to be given to accused to prefer

an application for discharge from the date of committal of case to the

Sessions Court. In earlier corresponding provision i.e. under Section
                                                                144.26revn
                                   (4)

227 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”),

such time frame of 60 days to apply for discharge was not provided.

However, by virtue of new code i.e. the BNSS, the legislature has

introduced the provisions of providing 60 days period for preferring an

application for discharge from the date of committal of the case, till the

framing of charge. On the very first date, the learned Sessions Court

thereby framing charge, has not provided opportunity to the accused

persons to prefer an application for discharge under Section 250 of the

BNSS. He, therefore, submits that the impugned order is, therefore,

totally in contravention of the newly introduced provisions, and as

such, accused persons were required to be given opportunity to prefer

an application for discharge. The learned Sessions Court framed the

charge below Exh.7 in a very routine and casual manner.               He

vehemently submits that the accused have not been given opportunity

of legal right to apply for discharge. He prays that the accused persons

be provided an opportunity by quashing the impugned order of

framing charge.


7.           In support of his submissions, learned Advocate Mr

Salunke relies upon the judgment delivered by the Nagpur Bench of

this Court in the matter of Ambadas Kashirao Kharad Vs. State of

Maharashtra, [2007 ALL MR (Cri.) 1916]. In the said case, learned
                                                               144.26revn
                                   (5)

Sessions Judge had directly proceeded to frame charge against the

accused therein, without complying the provisions of Sections 226 and

227 of the Cr.P.C. The learned Judge of the High Court, while passing

aforesaid judgment, observed that the said practice ex-facie contrary to

Chapter XVIII of the Cr.P.C., and as such, cannot be countenanced. It

was further directed the Registry to circulate the said judgment to all

the Sessions Judges, who have been directed to follow the procedure

contemplated under the provisions of Sections 226 and 227 of the

Cr.P.C. before passing the order of framing charge against the accused

persons.


8.          Learned Advocate Mr Salunke for the applicant further

relies upon the judgment delivered by the Orissa High Court at Cuttack

Bench in the matter of Narottam Prusty VS. State of Odisha and

another in case No. CRLMC No.1731/2025 and points out that in

exactly similar situation under the new legislation as like in this case,

the said High Court of Orissa quashed the impugned order, thereby

providing an opportunity to accused to prefer application for discharge

within 60 days as per Section 250(1) of the BNSS. Thus, Mr Salunke

further submits that, as the accused has not been provided an

opportunity to prefer an application for discharge, he has been
                                                             144.26revn
                                   (6)

deprived of his legal rights, and therefore, the impugned order is not

sustainable in the eyes of law. Hence, he prays for quashing of the

same by providing opportunity to apply for discharge to the accused.


9.           Per contra, Ms Gunjal, learned APP for the respondent/

State vehemently opposes the present application. She submits that,

on the date of framing of charge, there was no request on behalf of

counsel for the accused, as to whether he is intend to file an

application for discharge or not. In absence of such expression, the

learned Sessions Court committed no mistake by framing the charge

against the accused persons. According to her, though the provisions

prescribe period of 60 days from the date of committal of order, the

fact remains that applicant/accused, neither expressed before the

Judicial Magistrate First Class nor before learned Sessions Court as

regards his intention to apply for discharge or not. In absence of such

expression of interest, the learned Sessions Court cannot be said to

have committed any illegality. She, therefore, submits that there is no

requirement of interference of this Court in the impugned order, and

therefore, prays for dismissal of the instant application.


10.          After hearing the learned Advocates for the respective

parties and going through the evidence on record, it is clear that the
                                                                  144.26revn
                                    (7)

applicant came to be charge-sheeted alongwith the other accused

persons for the offence punishable under Sections 109 of the BNS. The

said offence is triable by the Court of Sessions. Therefore, learned

Judicial Magistrate First Class committed the said case to the learned

Sessions Court vide order dated 20/12/2025. In the said order, the

Judicial Magistrate First Class also directed the accused persons to

appear before the learned Sessions Court on 03/01/2026.               When

accused persons appeared on the very first date before the learned

Sessions Court, the charges came to be framed below Exh.7 by the

learned Sessions Judge for the offence punishable under Section 109

read with Section 3(5) of the BNS.



11.            For deciding this revision application, it is apposite to

refer to the provisions of Sections 250 and 251 of the BNSS, which

read thus :-

      “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.”
                                                                  144.26revn
                                    (8)




      “251. Framing of charge.
      (1)   If, after such consideration and hearing as aforesaid, the
      Judge is of opinion that there is ground for presuming that the
      accused has committed an offence which-
      (a) is not exclusively triable by the Court of Session, he may, frame a
      charge against the accused and, by order, transfer the case for trial
      to the Chief Judicial Magistrate, or any other Judicial Magistrate of
      the first class and direct the accused to appear before the Chief
      Judicial Magistrate, or the Judicial Magistrate of the first class, on
      such date as he deems fit, and thereupon such Magistrate shall try
      the offence in accordance with the procedure for the trial of warrant-
      cases instituted on a police report;
      (b) is exclusively triable by the Court, he shall frame in writing a
      charge against the accused within a period of sixty days from the
      date of first hearing on charge.


      (2)    Where the Judge frames any charge under clause (b) of sub-
      section (1), the charge shall be read and explained to the accused
      present either physically or through audio-video electronic means
      and the accused shall be asked whether he pleads guilty of the
      offence charged or claims to be tried.”


12.         A bare perusal of section 250 of the BNSS would reveal

that the accused will be provided with an opportunity of filing an

application for discharge. If such application is filed, the learned

Sessions Court shall consider the case records, documents submitted

therein and hear the prosecution as well as accused before determining,

as to whether there are sufficient grounds to proceed against the
                                                             144.26revn
                                  (9)

accused persons or not. In the event the learned Sessions Court below

is of the view that there are no sufficient grounds to proceed against

the accused, the accused shall be discharged. However, if after hearing

both the accused and prosecution, the learned Court below considers

that there is enough material to draw the presumption that the accused

might have committed the offence, the trial Court will then proceed to

frame charge as per Section 251 of the BNSS. However, sub-section

(1) of Section 251 of the BNSS provides that, the Judge will proceed

to frame the charge ‘after such consideration and hearing as

aforesaid’. Thus, the hearing and consideration referred to in sub-

section (1) of Section 251 clearly suggests the preceding Section 250.

Thus, Section 250 specifically in sub-section (1) provides a time limit

of 60 days from the date of commitment of the case under Section 232

of the BNSS.



13.         After conjoint reading of Sections 250 and 251, it is

evident that, the application for discharge may be filed by the accused

person within a period of 60 days from the date of committal order.

No such time limit was fixed under the erstwhile Section 227 of the

Cr.P.C. After introduction of the new BNSS, the legislature has

provided time of 60 days in cases where the committal procedure is
                                                               144.26revn
                                  (10)

contemplated. Ordinarily, in all sessions triable cases under the BNSS,

a right has been given to the accused to move an application for

discharge within a period of 60 day from the date of commitment of

the case.



14.         Thus, answer to the question as to from what point should

the period of 60 days as provided under section 250(1) of the BNSS be

counted, is that the said period starts from the date of commitment of

the case to the learned Sessions Court. The provision of Section 250

of the BNSS is to be read and interpreted in a manner that the starting

day of limitation for filing an application for discharge within a period

of 60 days, shall be counted from the date of first appearance of

accused before the learned Trial Court after the cognizance of offence

is taken. Similarly, once the accused prefers discharge application, the

case shall be posted for hearing on charge immediately. Thereafter, in

view of Section 251(1)(b), the learned Sessions Court shall frame

charge within 60 days from the date the case is posted for first hearing

on charge. This should be a reasonable and fair interpretation of the

statutes to avoid any conflict. There is ample time given in the statute

to the accused to present his discharge application so as to preserve the
                                                                 144.26revn
                                   (11)

right of accused to a fair trial, as envisaged under Article 21 of the

Constitution of India.



15.          In this case, the learned Sessions Judge, without affording

an opportunity to the applicant has framed the charge on the very first

day of appearance of the accused. However, it is to be seen that the

pursuit of the speedy trial must never result in sacrificing the cause of

justice. A sound criminal justice system rests upon the foundational

principles and what must remain paramount is the administration of

justice itself. Even though the process may be expedited, it cannot be

allowed to undermine or extinguish essential safeguards that secure

justice. Anxiety to bring the trial to its earliest conclusion thus, can the

cause of justice be made to suffer, though, undoubtedly, it is highly

desirable that finality of any trial is achieved in the quickest possible

time. As such, the learned advocate for the applicant/ accused is right

in placing reliance upon the judgments in            Ambadas Kashirao

Kharad (supra) as well as in Narottam Prusty VS. State of Odisha

(supra).


16.          In view of the above discussion and taking into

consideration the fact that the offences involved in the present case
                                                                144.26revn
                                  (12)

attract grave punishment, this Court is of the considered view that the

right of the accused to a fair trial, as enshrined under Article 21 of the

Constitution of India has been violated on account of the very fact that

the learned defence counsel for the accused did not get an opportunity

to go through the basic documents and to suggest whether to prefer

application for discharge or not. Therefore, this Court is of the opinion

that the order passed by the learned Sessions Judge, thereby framing

the charge on 03/01/2026 requires to be quashed and set aside.

Consequently, I pass the following order :-


                                ORDER

(I)    The Criminal Revision Application is partly allowed.

(II)   It is directed that the matter be considered de novo by the

learned Sessions Court from the stage of discharge.

(III) The applicant/accused is directed to approach the learned

Sessions Court by filing a discharge application within two weeks

from the date of uploading of this judgment.

(IV) In such eventuality, the learned Sessions Court shall consider

such discharge application of the applicant, in accordance with law,

within four weeks thereafter, before framing the charge.
                                                              144.26revn
                                 (13)

(V)   Needless to state, if the accused is not willing to file an

application for discharge, then, the accused shall give in writing such

intention.

(VI) On filing of such application by the accused giving his right to

file an application for discharge, the learned Sessions Court shall

proceed further to frame charges against the accused.

(VII) In the event the accused files an application for discharge as per

clause (III) above, such application shall be considered under Section

250(2) of the BNSS after providing a reasonable opportunity of

hearing to the accused and prosecution. The same shall be disposed of

forthwith i.e. not later than 60 days from the first date of hearing on

charge.



                                    [SUSHIL M. GHODESWAR, J.]
sjk