Homestay Owner Moves Karnataka High Court In Plea For Quashing FIR Over Alleged Rape Of US Woman

The owner of a Homestay in Kodagu, booked in an FIR lodged over the alleged sexual assault of a female US national, approached the Karnataka High Court on Thursday (June 4) seeking quashing of the FIR. 

Along with the quashment, the owner also seeks a declaration that his arrest was illegal and that he should be compensated Rs 15 lakhs for the violation of his fundamental rights.

Advocate Angad Kamath, appearing for the owner mentioned the matter before the single judge bench of Justice M. Nagaprasanna today. The court has permitted the matter to be heard on next Monday [June 8].

Kamath submitted that the petitioner was merely the owner of the villa and not the employee who allegedly assaulted the foreign tourist. Based on such allegations against the employee, the owner cannot be implicated, he added.

“Even my homestay license has been revoked, milord”, submitted the counsel. While listing the matter for next week, the court orally said “…those homestays need to be regulated”.

For context, the homestay owner was arrested on April 19  and subsequently sent to a 14-day judicial custody. The petitioner moved the Sessions Court for bail on April 23, which was granted on May 2.

The owner has been booked for offences under Sections 64(1) (rape), 351(2) (criminal intimidation), 238 and 239 BNS (concealing design to commit offence and giving false information).

The plea claims that Section 3(5) BNS (common intention) does not appear in the FIR or in the initial crime documents, and was inserted only in the remand application of April 19 to sustain the rape offence against the petitioner.

It claims that the complainant's 180 BNSS statement does not implicate the owner in the offence; it neither mentions that the owner was present in the premises at the alleged time of occurrence, the petition claims. Only the first accused Vrijesh, the housekeeper of the villa, was present in the property at the relevant time.

“…… Section 64(1) BNS cannot … attach to the Petitioner directly. The only route to him is Section 3(5) BNS -common intention”, the petition states why Section 3 (5) was added later as an afterthought.

It further contends that all the offences alleged against the petitioner requires specific knowledge of the offence as part of 'mens rea', but the complainant's statement itself expressly negates such knowledge on the part of the home stay owner.

The plea submits that the complainant's Section 180 BNSS statement suggests that on April 12 and April 13, she did not make any reference to the crime while talking to her friends.

It was only on April 18 that a complaint was lodged by the tourist against the employee and the home stay owner at the residence of the Community Liaison Volunteer of the US Consulate in Mysore. A woman PSI thereafter recorded her oral statement there, the plea states. 

The plea alleges that these inferences directly contradict the prosecution's claim that the villa owner forced her to stay at the property for a longer duration, preventing her form making any calls and only allowing communication with the outside world through text messages.

Except Section 3(5) BNS, every other section invoked against the owner is punishable with imprisonment of less than seven years. Asserting the same, the petitioner emphasises that the arrest could not have been effected without a written satisfaction under Section 35(1)(b) BNSS and a notice under Section 35(3) BNSS, as laid down in Arnesh Kumar judgment. 

The complainant has alleged that she was served a welcome drink upon her arrival on April 12 which was allegedly spiked. It is alleged that on losing consciousness, the employee sexually assaulted her.

Case Title: Palecanda Ponnappa @ Vishal v. State of Karnataka & Anr.