[This Article is authored by Devdeep Ahirwal and Shivansh Singh, Students, Faculty of Law, University of Delhi]

Introduction

The Supreme Court (SC) recently, in the case of Tapas Kumar Palit v. State of Chhattisgarh, put forth the right to a speedy trial as a fundamental right, grounded in Article 21 of the Indian Constitution. This judgment highlighted the recurring issue of prolonged durations of trial, which has negative implications for the rights of the accused, who are detained for several years under the bogus excuse of a slow-paced criminal justice system. Delayed and perpetuating trials are a serious affront to basic human rights. The guarantee of a fair and expeditious trial, as highlighted by the SC, is also acknowledged in international treaties like Article 14(3)(c) of the International Covenant on Civil and Political Rights (ICCPR).

As of June 2025, 46.13 million cases are pending before the district courts, and 6.35 million in front of all the High Courts of India. Furthermore, nearly 62 thousand cases are pending in various high courts, which are more than 30 years old. Although specific data on the nature of these cases has not been calculated, a substantial proportion of the pending cases involve frivolous and bogus matters. Many categories of these petty criminal offences can be addressed at the initiation of trial, without being stretched out over the proper trial stages.

Therefore, where the contemporary discourse primarily focuses on the mechanical aspect of judicial and trial delays, a rather crucial aspect of criminal procedure, i.e., pre-trial proceedings as provided in Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), are often overlooked, which, if addressed effectively, would not only contribute towards the reduction of the pendency of the cases in the courts, but it would also reduce the overall time taken by the trial proceedings, expediting the entire process significantly.

Cognisance & the Scope of Judicial Application of Mind

Section 210 of the BNSS (Cognisance of offences by Magistrate) delineates the conditions under which a Magistrate can take cognisance of an offence.

Although the word “cognisance” has not been specifically defined in the BNSS, the SC has explained through a uniform series of decisions that cognisance means the “judicial exercise of mind” by a Magistrate to the substance of a complaint, police report, or information. When the Magistrate, after considering the charges and being prima facie satisfied that the charges, if proved, would constitute a prosecutable offence, starts legal proceedings, it is said that cognisance has been taken.

While the court is not required to scrutinise the sufficiency or probative value of the evidence strictly at this initial phase, there must be more than suspicion, as knowledge based solely on speculation may result in unjust legal harassment, which is contrary to the objectives of procedural fairness.

The Discharge or Charge Conundrum

If the courts find the case to be lacking in substantive grounds, they can dismiss the case and subsequently discharge the accused. However, a lack of serious utilisation of this provision further perpetuates the unnecessary detention of the accused.

The court must use its judicial discretion in deciding whether the prosecution has established a prima facie case for trial. In the absence of any such sufficient ground, the accused has to be discharged.

Therefore, at the stage of considering an application for discharge, while it is not required to consider the merits of or analyse the case thoroughly, the inquiry by the trial judge to determine if the material presented by the prosecution makes out sufficient grounds for proceeding would ipso facto require exploring the greater ground associated with the purported guilt of the accused. Hence, at this stage, the courts can effectively dispose of cases through a more thorough inquiry, thereby eliminating the need for cases to proceed to trial altogether.

However, the courts adopt a contrary process at this initial stage by not making a full examination of the evidence. They limit their scope to merely checking whether there exists a prima facie basis to assume that an offence has been committed, and whether it is sufficient to prefer a charge. Notably, the judicial opinions that the law does not permit a mini-trial at this stage in the proceedings don’t help.

However, this procedural framework, when viewed from the context of the accused’s rights, appears to be extremely inefficient and detrimental, as any inquiries into the accused’s culpability based on the incriminatory value of the evidence adduced are postponed until later stages of the trial. This postponement exacerbates delays in the trial and extends the period of detention of the accused, since if the accused is acquitted at a later stage during the trial, when the same conclusion could have been deduced at the pre-trial stage with a higher degree of inquiry by the courts, the net effect of the overall detention of the accused significantly infringes their personal liberty.

Additionally, at the stage of framing of charges and taking cognisance, the accused is given no right under BNSS to file any material or ask the court to take such material into consideration, thereby significantly reducing the inquisitorial scope of the Courts at the pre-trial stage.

Hence, the scope of utilising the provision of discharge is largely restricted to the assessment of the evidence submitted by the prosecution to the court, which puts the accused in a position of only countering the evidence on the grounds of mere probabilities. This, as a result, seriously impedes the right of an accused individual by unnecessarily stretching the trial procedure, when it could be evaluated and possibly dismissed at the pre-trial stage itself. At this stage, the mere availability of evidence, as indicated by the prosecution, allows the courts to frame charges without actually assessing its substantive value.

Thus, at the stage of framing charges, countering established judicial precedent, it is strongly recommended that the court be called upon to determine the probative strength of the evidence, which can reduce the unnecessary extension of the trial.

Grave Suspicion Standard

However, it is worth noting that even BNSS subtly encourages judicial officers to take a relatively active role, albeit not to the extent of probing into the merits of the case at the pre-trial stage.

According to Section 250 of BNSS (discharge), in the absence of concrete grounds and “grave suspicion”, the accused must be rightfully discharged. Here, grave suspicion is understood to be something that arises on the basis of material and acceptable evidence, in contrast to simple “suspicion”, which is based on mere speculation and imagination without any foundational basis.

However, in the Indian criminal jurisprudence, there has to be an apparent nexus or relationship between the accused and the incident, which is intelligible from the evidence placed before the court, to satisfy the ground in Section 250 BNSS, all of which requires the court to take an inquisitorial approach instead of the common law entrenched adversarial authority.

Therefore, the rule for framing of charge under Section 250 of BNSSnot only necessitates the judge to find out whether there exists a prima facie case against the accused, but also to inquire whether the materials forming the basis of such inquiry raise a grave suspicion against the accused or not. This is substantiated by the wording of Section 250, “…not sufficient ground for proceeding against the accused”, which indicates the proactive role of a Judge during pre-trial inquisitions, which includes the clear application of the judicial mind of the Judge to the relevant facts to determine the prospect of the case (whether it should be tried or not). 

However, the broader tendency of BNSS is to pardon judges’ accountability during pre-trial inquiries. This can be observed under Section 251 BNSS  (framing of charges), at the threshold stage of the trial. The Judge doesn’t undertake a detailed evaluation or balance the facts with the degree of scrutiny required at the stage of conviction. The courts opine that the evidentiary threshold required for conviction is not the test to be applied while framing charges. Instead, the purpose at that stage is merely to assess whether there exists sufficient material suggesting that the accused may have committed the offence in question, thereby warranting a trial. 

Moreover, the judges are also absolved of the responsibility to record detailed reasons as to why such a charge is framed under Section 251 BNSS. 

Conclusion

Therefore, the pre-trial process needs to be reconfigured, not merely by reiterating the plea for speed, but also by refocusing the use of judicial discretion at the preliminary stage. The current practice of allowing the cases to proceed forward with scrutiny at a perfunctory level diminishes the protective effect of pre-trial protections. Therefore, a more reflective and evidence-based process is required at the stages of cognisance, discharge, and framing of charge, which would not only serve to reduce pendency but also make the constitutional promise of fairness a reality, so that trial becomes mandatory, not a fallback.