The Karnataka High Court set aside the FIR and charge-sheet against the owner of a homestay, holding that prosecution under the repealed Foreigners Act, 1946 and under Section 239 of the Bharatiya Nyaya Sanhita (BNS) was legally untenable.
Background & Facts
The Dispute
The petitioner, Palecanda Ponnappa @ Vishal, is the owner, principal operator and managing person of Devi Villa Homestay, a heritage coffee plantation-turned-homestay situated in Faith Cinchona Estate, Kutta, Kodagu district. The homestay is registered under the Karnataka Tourism Trade (Facilitation and Regulation) Act, 2015 (Registration Certificate No. DT/DOT/08/00001983, valid from 15-01-2024 to 15-01-2029). The complainant, a United States citizen holding an Indian tourist visa (valid 14-08-2024 to 13-08-2029), stayed at the homestay on two occasions:
- 22-03-2026 to 24-03-2026 - a compliant stay with no incident.
- 12-04-2026 to 18-04-2026 - the period during which the alleged offence occurred.
The petitioner was accused (as Accused No. 2) of offences under Section 239 of the BNS, and Sections 7 and 14 of the Foreigners Act, 1946. The charge-sheet (No. A/30/2026 dated 07-06-2026) was filed in Crime No. 34 of 2026 at Kutta Police Station and later lodged before the Civil Judge and JMFC, Ponnampet (C.C.No. 575/2026).
Key Facts
- 15-01-2024: Registration Certificate issued for Devi Villa Homestay.
- 14-08-2024: Tourist visa issued to the complainant (valid until 13-08-2029).
- 22-03-2026 - 24-03-2026: First stay of the complainant; no complaint recorded.
- 12-04-2026 - 18-04-2026: Second stay; on 12-04-2026 the complainant alleges she was administered a sedative and sexually assaulted.
- 18-04-2026: FIR registered (oral) for offences under Sections 64(1), 351(2), 238 and 239 of the BNS.
- 19-04-2026: Petitioner arrested without written grounds; he cooperated with investigators.
- 21-04-2026: Complainant’s statement recorded before JMFC, Kushalnagar.
- 02-05-2026: Petitioner released on bail by the Principal District and Sessions Judge, Madikeri.
- 30-05-2026: Complainant gave a further statement (via video call) implicating the taxi driver (Accused No. 3).
- 02-06-2026: Taxi driver arrested and arraigned as Accused No. 3.
- 04-06-2026: Blood samples of petitioner and Accused No. 3 drawn.
- 07-06-2026: Charge-sheet filed, naming petitioner as Accused No. 2.
- 13-08-2026: Criminal Petition No. 9779 of 2026 reserved.
- 24-08-2026: Judgment pronounced.
Procedural History
- 13-08-2026: Criminal Petition filed under Section 528 of the BNS, seeking quash of the charge-sheet.
- 24-08-2026: Single-Judge Bench (Hon’ble Mr. Justice M. Nagaprasanna) delivered the judgment.
Relief Sought
The petitioner prayed for:
- Quash of FIR No. A/30/2026 dated 07-06-2026.
- Quash of the charge-sheet filed in Crime No. 34 of 2026.
- Dismissal of all consequential proceedings.
The Legal Issue
Whether a person can be prosecuted for offences alleged to have occurred on 12-04-2026 under Sections 7 and 14 of the Foreigners Act, 1946 (which was repealed on 01-09-2025) and under Section 239 of the Bharatiya Nyaya Sanhita, 2023, when no statutory duty to report the alleged sexual offence is established.
Arguments Presented
For the Petitioner
- The Foreigners Act, 1946 was fully repealed by Section 36 of the Immigration and Foreigners Act, 2025 with effect from 01-09-2025; therefore, no offence can be founded on a dead statute.
- Section 36(2) of the 2025 Act only preserves actions already taken while the repealed law was in force; it does not revive the law for future conduct.
- Article 20(1) of the Constitution bars conviction for an act not punishable under a law in force at the time of the act.
- Section 239 BNS punishes intentional omission only when the person is legally bound to give information; such a duty is created by Section 33 BNS, which enumerates specific offences - sexual offences are not among them.
- Consequently, the petitioner cannot be said to be “legally bound” to report the alleged sexual assault.
For the Respondent
- The prosecution contended that the complainant’s allegation of a sexual assault and the alleged failure to report it constitute an offence under Sections 7 and 14 of the Foreigners Act, 1946 and Section 239 BNS.
- It argued that the charge-sheet was filed after a proper investigation and that the petitioner, as the “keeper of the premises,” owed a duty to furnish particulars of foreign guests.
- The State maintained that the saving clause of the 2025 Act preserved the liability arising from the earlier statutory framework.
The Court's Analysis
The Court began by confirming the repeal timeline: the Foreigners Act, 1946 ceased to exist on 01-09-2025; the alleged incident occurred on 12-04-2026, well after repeal. It held that Section 36(1) of the 2025 Act expressly repeals the 1946 Act, and Section 36(2) merely preserves actions taken while the repealed law was operative. The Court quoted the provision:
“(2) Notwithstanding such repeal, anything done or any action taken … under the repealed Acts shall, in so far as it is not inconsistent with the provision of this Act, be deemed to have been done … under the corresponding provisions of this Act.” Applying this, the Court observed that no pending proceeding existed under the 1946 Act at the time of its repeal; therefore, the saving clause could not resurrect the statute for conduct occurring thereafter.
The Court then turned to constitutional jurisprudence, invoking Article 20(1) to underscore that criminal liability must be anchored in a law in force at the time of the alleged act. It stressed that retrospective creation of an offence is constitutionally prohibited.
Regarding Section 239 BNS, the Court dissected its three essential ingredients (knowledge, intentional omission, and a legal duty to report). It held that the legal duty is not created by Section 239 itself but must stem from another statutory provision. The Court examined Section 33 BNS, which enumerates specific offences for which a citizen must report. The enumeration does not include sexual offences, and the legislature has repeatedly chosen to exclude such offences from the reporting duty, as reflected in the legislative history from the 1861 Code to the 2023 BNS.
Consequently, the petitioner was not “legally bound” to furnish information about the alleged sexual assault, and the prosecution failed to demonstrate any statutory duty imposed on a private homestay owner. The Court also referenced the KOLHAPUR CANESUGAR WORKS LIMITED v. UNION OF INDIA precedent on the effect of repeal and the MUKHTIYAR AHMED KHAN v. UNION OF INDIA decision interpreting the post-repeal statutory landscape.
The Court further rejected the State’s reliance on the saving clause, noting that Section 36(2) cannot create a future penal liability; it merely safeguards past actions. It emphasized that Section 239 cannot be invoked in the absence of a statutory duty, and that moral expectations cannot be transformed into criminal liability.
“The charge under Sections 7 read with 14 of the Act is, therefore, not merely loosely laid; it is laid under a law which, as noticed hereinbefore, stood repealed.”
Finally, the Court affirmed its inherent jurisdiction under Section 528 BNS (and Section 482 CrPC) to quash proceedings that constitute an abuse of process, especially when the statutory foundation of the charge is void.
The Verdict
The petition was allowed. The FIR dated 07-06-2026 and the charge-sheet filed in Crime No. 34 of 2026 were quashed as they were based on a repealed statute and lacked a statutory duty under Section 239 BNS. All consequential proceedings against the petitioner were also quashed. The order clarified that the competent authority may take action only under the Immigration and Foreigners Act, 2025, and its subordinate rules.
What This Means For Similar Cases
Repealed Statutes Cannot Be Revived for Future Conduct
- Prosecutors must verify that the statutory provision invoked was in force on the date of the alleged act.
- Saving clauses preserve existing liabilities but do not create new offences after repeal.
- Litigants should challenge charges grounded on repealed laws at the earliest stage (FIR/charge-sheet).
Duty to Report Must Be Statutorily Imposed
- Section 239 BNS punishes omission only where a legal duty exists, typically created by Section 33 BNS or a specific statute.
- Courts will not infer a duty from moral expectations; the duty must be expressly enumerated.
- Practitioners should examine the enumerated offences in Section 33 before alleging a reporting obligation.
Constitutional Safeguard Under Article 20(1)
- Any criminal prosecution must satisfy the constitutional test that the act was punishable under a law in force at the time.
- Retroactive criminalisation is per se unconstitutional and will invalidate the charge.
Practical Checklist for Counsel
- Verify the effective date of repeal of any statute cited.
- Identify any saving provisions and assess whether they apply to pre-existing actions only.
- Ascertain whether the accused is legally bound by a duty under Section 33 BNS or another enactment.
- If duty is absent, move to quash under Section 528 BNS/Section 482 CrPC.
