Must an accused be on bail before seeking discharge? Not so, the Allahabad High Court has held: a Discharge Application Without Obtaining Bail can be filed, with exemption from personal appearance under Section 355 BNSS available on cogent grounds.
Lucknow: An applicant who has not been granted bail has been given fifteen days to move a discharge application along with an exemption application, after the Allahabad High Court at Lucknow held that an accused may file a discharge application before the trial court without first applying for or obtaining bail, and may seek exemption from personal attendance under Section 317 CrPC (Section 355 of the Bharatiya Nagarik Suraksha Sanhita) by showing cogent and substantial grounds [Pankaj Chauhan v. State of U.P. Thru. Prin. Secy. Home Lko. and 4 Others].
Two questions of law arose when the State objected that an accused who had not been enlarged on bail could not be permitted to move a discharge plea through counsel, and Justice Shree Prakash Singh answered both. Senior Counsel Dr. Amrendra Nath Tripathi assisted the Court as Amicus Curiae, and A.G.A.-I Aniruddha Kumar Singh appeared for the State.
The two answers
On the first question, the Court held:
“(i) The discharge application can be preferred, by an accused, without applying/obtaining bail.”
On the second question, the Court held that an accused can file an application under Section 317 CrPC (Section 355 BNSS) for exemption from personal attendance before the trial court along with the discharge application, with cogent and substantial grounds. Since the applicant’s affidavit did not set out reasons for exemption, he was given liberty to move a discharge application together with an exemption application within fifteen days, and the trial court was directed to decide them expeditiously in accordance with law.
How the Court read the provisions
“Discharge” is not defined in the CrPC or the BNSS, the Court noted, and Sections 239, 227 and 245 CrPC do not prescribe the stage at which a discharge plea may be moved. A conjoint reading of Sections 205 and 317 CrPC (Sections 228 and 355 BNSS) with the discharge provisions, it held, provides a route for exemption from personal appearance.
“It is of worth consideration that there is no bar of any kind on moving a discharge application and on consideration on the same by the trial court without obtaining the bail…”
The Court relied on Sharif Ahmed v. State of Uttar Pradesh, (2024) 14 SCC 122, and Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167, to say that the exemption provisions must not be read restrictively.
“…Section 317 and 205 of the Code is very much there and, therefore, the same should not be read in a prohibitory or restrictive manner that the same cannot be invoked prior to grant of bail.”
The High Court, in its inherent powers under Section 528 BNSS, can exempt an accused from personal attendance in exceptional cases with cogent reasons, the Court added, but this power must be used sparingly.
The applicant’s case
The applicant, Pankaj Chauhan, had approached the High Court under Section 528 BNSS against the summoning order dated February 28, 2026 passed by the Additional District and Sessions Judge/Special Judge (POCSO), Maharajganj, in Sessions Trial No. 0109 of 2026, and the charge sheet dated February 7, 2026 filed under Sections 77 and 64(1) of the Bharatiya Nyaya Sanhita and Sections 3/4 of the POCSO Act.
The FIR was lodged by the mother of the complainant. The applicant contended that the statements recorded under Sections 180 and 183 BNSS showed a relationship between the two, that the FIR followed his refusal to marry, and that the complainant’s age had been wrongly shown to bring the case under the POCSO Act. The State opposed this, submitting that the Investigating Officer had found her to be a minor on documentary evidence. These are allegations and defences yet to be tested at trial; the High Court expressed no view on the merits, and the presumption of innocence applies.
After arguing on merits, the applicant’s counsel sought liberty to move a discharge application before the trial court through counsel. The State objected that he had not been granted bail.
Why the judgment matters
Trial courts often insist that an accused first surrender and obtain bail before any discharge plea is entertained. The ruling settles, for courts in Uttar Pradesh, that discharge is a pre-trial safeguard against groundless prosecution and its availability does not depend on bail.
At the same time, exemption from personal appearance is not automatic. The accused must show cogent and substantial grounds under Section 355 BNSS, and the High Court’s own inherent power to grant exemption is reserved for exceptional cases.
Case Title: Pankaj Chauhan v. State of U.P. Thru. Prin. Secy. Home Lko. and 4 Others
Case Number: Application U/S 528 BNSS No. 1110 of 2026
Bench: Justice Shree Prakash Singh, Allahabad High Court, Lucknow Bench
Date of Judgment: October 26, 2026
Appearances: Dr. Amrendra Nath Tripathi, Senior Counsel (Amicus), with Sanjeev Kumar Mishra, Harendra Singh and Satish Kumar Sharma for the applicant; Aniruddha Kumar Singh, A.G.A.-I, with other A.G.A.s for the State
If you know of a child in need of care or protection, call CHILDLINE at 1098.