BENGALURU: Noting that a criminal trial cannot be permitted to become the punishment where the law does not disclose the crime, the High Court on Wednesday quashed the charge sheet filed against the owner of a homestay in Kodagu where a US citizen was allegedly raped by a housekeeper.
The victim registered the FIR with Kutta police station six days after the alleged incident that occurred on April 12, 2026.
The owner of the homestay moved the High Court, challenging the charge sheet filed against him on June 7, which is pending before the trial court at Ponnampet in Kodagu district under Section 239 of the BNS and Sections 7 and 14 of the Foreigners Act, 1946, which was repealed with effect from September 1, 2025.
“The prosecution against the petitioner suffers from a two-fold statutory infirmity. The charge under Sections 7 read with 14 of the Foreigners Act is sought to be laid under an enactment which stood repealed. The charge under Section 239 of the BNS fares no better, for the very legal duty whose breach constitutes the foundation of that offence is absent concerning the petitioner,” said Justice M Nagaprasanna while allowing the petition filed by the homestay owner.
The court said when the alleged act took place, the Foreigners Act, 1946 itself was repealed, and the question of alleging offences under Sections 7 and 14 of the Act does not arise. Neither Section 36(2) of the Immigration and Foreigners Act, 2025, nor Section 6 of the General Clauses Act can perform the legislative alchemy of reviving those repealed penal provisions to govern an act committed several months after their repeal.
A charge resting upon a non-existent penal provision cannot be permitted to propel a citizen into the rigours of a criminal trial. It is a charge without statutory foundation, an accusation unknown to the law in force, and consequently a nullity in the eye of law, the court added.
The court also said the petitioner is a private citizen. He is neither a public servant nor a police officer; neither a person in charge of a hospital nor one upon whom any special statute is shown to cast an independent obligation to report the alleged offence.
The prosecution has not demonstrated any statutory source which made it legally obligatory for this petitioner, in the circumstances obtaining in the case, to furnish information concerning the alleged sexual offence. If there is no legal duty, there can be no legally culpable omission; and if there can be no legally culpable omission, Section 239 of the BNS cannot be summoned merely because the prosecution alleges knowledge, the court added.
The court noted that Section 239 does not punish mere knowledge of an offence followed by silence. It punishes intentional omission by a person legally bound to furnish the information.
