BENGALURU: Challenging the legality of his arrest under Section 3(5) of BNS at the remand stage in connection with an alleged sexual assault on a US national this April, the owner of a homestay in Kodagu district moved the Karnataka High Court seeking directions to the state to award a compensation of not less than Rs 15 lakh for loss of liberty, dignity and reputation, and also to conduct an inquiry against the Kutta police in Kodagu. He claimed that his arrest was illegal.
Justice M Nagaprasanna passed the order to issue a notice to Kutta police.
The petitioner’s counsel contended that the FIR alleges a sexual offence under Section 64(1) of BNS only against the co-accused no. 1, a housekeeper, and contains no allegations of any overt act by the petitioner.
He was sought to be brought within the rape charge solely through the device of Section 3(5) of BNS – common intention – which was not in the FIR or in any contemporaneous documents and was inserted without record only in the remand application dated April 19, 2026.
Without Section 3(5), the remaining sections alleged against the petitioner are each punishable with imprisonment of less than seven years, and the petitioner could not lawfully have been arrested without compliance with Sections 35(1)(b) and 35(3) of BNS.
The case against the petitioner that he forced the complainant-victim to stay, told her not to inform police and prevented her from communicating with others, presupposes a fact that the complainant has not pleaded, the petitioner claimed.
The petitioner contended that within 17 minutes of the alleged offence, the victim sent the petitioner an effusive, emoji-laden WhatsApp message thanking him for the Wi-Fi connectivity she had just received. Within hours, she made a 16-minute call to her friend in the US from inside the homestay.
The next morning, she wrote a long defiant email to seven recipients and on the same day she travelled openly with the petitioner’s mother and wife to the sub-registrar’s office at Ponnampet, where she greeted a family business associate enthusiastically, the petitioner pleaded in his petition, denying allegations against him.