Allahabad High Court

SHADAB KHANversusSTATE OF U.P. AND ANOTHER

Decided: 28 September 2026
Bench: MADAN PAL SINGH

Holding

The charge‑framing order against Shadab Khan is set aside because the trial court failed to satisfy the mandatory provisions of Sections 230, 261, 262(2) and 341 of the BNSS.

Summary

Shadab Khan filed an application under Section 528 of the BNSS seeking to quash the order dated 11 November 2025 that framed charges against him in Sessions Trial No. 45 of 2025. The applicant argued that the trial court had not complied with the mandatory procedural provisions of Sections 230, 261, 262(2) and 341 of the BNSS, namely by failing to provide the police report, legal aid, an opportunity to be heard and time to file a discharge application. The State contended that the non‑compliance was immaterial because the applicant was present, the charges were explained, and the application was merely a delay tactic. The High Court examined the order‑sheet and found no record of satisfaction of Section 261 or any hearing, concluding that the trial court violated the statutory safeguards guaranteed to an accused. Consequently, the court set aside the charge‑framing order as it applied to Shadab Khan and directed him to file a discharge application within fifteen days, after which a fresh charge‑framing order must be made in compliance with law. The application was allowed with the stated directions.

Issues considered

Did the trial court comply with the mandatory provisions of Sections 230, 261, 262(2) and 341 of the BNSS while framing charges against the accused?
Can the charge‑framing order be quashed on the ground of non‑compliance with these procedural requirements?

Legislation cited

B.N.S.S. — s. 230, 261, 262(2), 341
Criminal Law Amendment Act — s. 7

Subjects

legal aid
mandatory procedural provisions
framing of charge
Section 528 application
criminal procedure
right to defence
discharge application
non‑compliance of statutory requirements

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 3136 of 2026

Shadab Khan
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)

Counsel for Applicant(s) : Salman Ahmad
Counsel for Opposite Party(s) : G.A., Sandesh Niranjan, Shravan Kumar
Yadav

Court No. - 81
HON'BLE MADAN PAL SINGH, J.

1. Heard learned counsel for the applicant, learned counsel for opposite party
no.2 and learned A.G.A. for the State as well as perused the entire material
available on record.

2. The instant application under Section 528 of B.N.S.S. has been preferred
with a prayer to quash the order dated 11th November, 2025 as well as the
entire proceedings of Sessions Trial No. 45 of 2025 (State Vs. Shadab Khan &
Others) arising out of Case Crime No. 516 of 2025 under Sections 74, 115 (2),
324 (6), 310 (2) 191 (2), 351 (2), 308 (2), 317 (3) B.N.S. and Section 7 of
Criminal Law (Amendment) Act, Police Station-Kotwali Orai, District jalaun,
pending in the Court of Additional Sessions Judge/Special Judge (Dacoity
Affected Area), Jalaun at Orai.

3. Learned counsel for the applicant submits that the charge-sheet was
submitted by the Investigation Officer against the applicant along with other
two co-accused on 28th October, 2025 before the Court of Additional
Sessions Judge/Special Judge (Dacoity Affected Area), Jalaun at Orai upon
which the Additional Sessions Judge/Special Judge (Dacoity Affected Area),
Jalaun at Orai has taken cognizance on the next date i.e. 29th October, 2025
and the accused-applicant Shadab Khan was present through Vedeo
Conferencing from District/Central Jail, Kanpur Dehat as he has not engaged
any counsel. While taking cognizance i.e. on 29th October, 2025, the trial
court fixed a date for framing of charge for 11th November, 2025. However,
without complying the mandatory provisions enumerated under Sections 230,
261, and 262 (2) B.N.S.S. by providing police report and other documents to
the applicant or providing a legal aid to him as well as without affording
opportunity of hearing to the applicant to have his say in the matter by means
of discharge application, the Additional Sessions Judge/Special Judge
NA528 No. 3136 of 2026
2

(Dacoity Affected Area), Jalaun at Orai has framed the charges against the
applicant on 11th November, 2025, which is per se illegal. Along with the
supplementary affidavit, learned counsel for the applicant has brought on
record the order-sheet of the trial court between the period 28th October, 2025
to 24th March, 2026, which does not reflect that the trial court before framing
charge against the applicant has complied with the mandatory provisions of
Section 261 and 262 (2) B.N.S.S. It is further submitted that at the time of
taking cognizance on the charge-sheet as well as at the time of framing
charge against the applicant he was not in a position to egange any counsel.
In such a situation, it was obligatory upon the trial court to comply with the
provisions of Section 341 B.N.S.S. by providing legal aid to the applicant and
also give sufficient time to him to file discharge application. However, such
procedures known to law has not been adopted byt he trial court while passing
the order framing charge against the applicant.

On the above premise, learned counsel for the applicant submits that the
order framing charge against the applicant dated 11th November, 2025 clearly
hits the mandatory provisions of Sections 230, 261, 262 (2) and 341 B.N.S.S.
therefore, the same is liable to be quashed.

4. On the other-hand, learned counsel for the opposite party no.2 and the
learned A.G.A. have opposed the submissions made by the learned counsel
for the applicant. Learned counsel for the opposite party no.2 submits that
mere non-compliance of the provision of Section 230 B.N.S.S., no prejudice
can be caused to an accused because at the time of framing of charge, the
applicant was present before the trial court and the charges were read and
explained to him and after that he himself claimed to be tried. It is further
stated that present application has only been filed to delay the trial of the
aforesaid criminal case pending before the trial court.

5. I have considered the facts and circumstances of the case, the submissions
made by the learned counsel for the applicant, learned counsel for opposite
party no.2 and the learned A.G.A. and gone through the records of the present
criminal application.

6. Section 261 B.N.S.S. is a mandatory provision, which provides that in every
condition a Magistrate or trial court shall satisfy himself that he has complied
with the provisions of Section 230 B.N.S.S. However, order-sheet of the trial
court reflects that no such satisfaction has been recorded by the trial court
before framing charge against the applicant. The order-sheet further reflects
that before framing of charge, neither the applicant has been granted
opportunity of hearing to have his say in the matter nor has been granted time
to file discharge applicant nor he has been provided any legal aid when he
NA528 No. 3136 of 2026
3

was not in a position to engage any counsel. For free, fair and proper trial, it is
fundamental right of any accused to put his defence before the trial court for
which he must have been provided opportunity of hearing.

7. Under such circumstances, this Court finds that before framing of charge,
the provisions contained in Section 230, 261, 262 92) and 341 B.N.S.S. have
not been complied, therefore, the order of framing charge dated 11th
November, 2025 is liable to be set aside.

8. Accordingly, order dated 11th November, 2025 passed by the Additional
Sessions Judge/Special Judge (Dacoity Affected Area), Jalaun at Orai
in Sessions Trial No. 45 of 2025 (State Vs. Shadab Khan & Others) arising out
of Case Crime No. 516 of 2025 under Sections 74, 115 (2), 324 (6), 310 (2)
191 (2), 351 (2), 308 (2), 317 (3) B.N.S. and Section 7 of Criminal Law
(Amendment) Act, Police Station-Kotwali Orai, District jalaun, is set aside qua
applicant, namely, Shadab Khan only.

9. It is provided that the applicant shall file discharge application supported by
such documents as he may be advised along with a certified copy of this order
before the trial court within fifteen days from today. On such application being
made, the trial court shall considered and decide the same, strictly in
accordance with law, by means of a reasoned and speaking order, preferably
within fifteen days thereafter after affording opportunity of hearing to both
parties. After disposal of such discharge application, the trial court shall pass a
fresh order for framing charge against the applicant, strictly in accordance with
law after affording opportunity of hearing to the applicant preferably within 15
days thereafter.

10. The present criminal application is allowed subject to the
observations/direction made above.

September 29, 2026
Sushil/-
(Madan Pal Singh,J.)

Digitally signed by :-
SUSHIL KUMAR SINGH
High Court of Judicature at Allahabad

Continue reading with your account

Checking your session…