The Karnataka High Court on Monday (August 24) quashed a chargesheet against the owner of a homestay in Kodagu who was booked for failing to report a sexual assault on a US national at his property, along with offences under the repealed Foreigner's Act, 1946. [2026 LiveLaw (Kar) 316]

Justice M. Nagaprasanna in his order said:

“Section 239 of the BNS punishes the breach of a legal duty; it does not create one out of silence. …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…. To permit it to survive would be to convert a provision punishing breach of a legal duty into one punishing breach of a perceived moral duty. The two are not synonymous. Morality may expect a citizen to speak; criminal law can punish his silence only when the statute commands him to speak. A moral expectation cannot, by prosecutorial alchemy, be converted into a penal obligation”, the court underscored.

The court noted that the charge under Section 239(Causing disappearance of evidence of offence, or giving false information to screen offender) BNS against the homestay owner can't be sustained since the petitioner, being a private citizen, had no 'legal duty' report the sexual offence even if it had occurred.

“In the case at hand, 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….”, the court said.

The court noted that the statute does not punish 'mere silence' and does not cast an obligation on every citizen to report every offence he/she comes to know of.

“….. What it punishes is an intentional omission to furnish information, which the person concerned is "legally bound" to furnish. The distinction is subtle, but decisive. Knowledge by itself is not the offence; silence by itself is not the offence…Put differently, Section 239 of the BNS does not create the duty; it punishes the breach of a duty created elsewhere in law…”, the court remarked.

The Court examined Section 33 of the BNSS, which enumerates offences that a citizen is legally bound to report. The court traced the history of the aforesaid provision through the years and noted that sexual offences have been consciously excluded from the enumeration for over 150 years, since 1861.

The only exception would be sexual offences involving children, which is penalised by the specific statute of POCSO Act, the court noted.

“…Parliament has not employed the expression 'any offence'. It has consciously enumerated the offences which attract the statutory duty of a member of the public to report. The provision, therefore, proceeds by enumeration and not by general description... Whether a legal obligation exists is thus not a matter of judicial intuition or prosecutorial preference; it is answered by the statute itself.”

Infirmities In Prosecution case

The court also highlighted various infirmities in the version of the complainant, such as not informing the homestay owner about the alleged offence during her stay, and registering the FIR six days after the incident.

The court also noted that the complainant was absent in the premises when the alleged incident occurred. Additionally, the complainant had given a further statement to the police six weeks after the incident, implicating a taxi driver as the accused. This narrative, as per the court, found no mention in the FIR or the US National's statement under Section 183 BNS.

Charge under repealed Foreigners Act can't lead to trial

About the offences under Foreigners Act, the court added that the charge under Sections 7 r/w 14 of the Foreigners Act, 1946, was 'laid under a law which was not in existence on the date of the alleged offences' as the Act stood repealed with effect from September 2025, and the incident occurred 7 months after the repeal of old statute.

“.…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 opined.

The Court noted that the Foreigners Act, 1946 was repealed in its entirety with effect from September 1, 2025, by Section 36 of the Immigration and Foreigners Act, 2025.

“Neither Section 36(2) of the Act [Saving Clause of the Immigration and Foreigners Act, 2025 in place], 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 saving provision preserves rights, liabilities, actions or proceedings which had their genesis while the repealed enactment was alive. It cannot breathe life into the repealed statute for the purpose of creating a fresh offence in respect of an act committed after the repeal. What is saved is the legal consequence of the past; what cannot be saved is the capacity of a repealed penal statute to govern the conduct occurring in the future”, the court noted further about the applicability of saving clause in the 2025 Act.

The court also relied upon the constitutional mandate under Article 20 which says that no person shall be convicted of an offence except for violation of a law in force at the time of the commission of the offence.

“…. Article 20(1) mandates that no person shall be convicted of an offence except for violation of a law in force at the time of the commission of the act charged as an offence. A person cannot be prosecuted under a penal law yet to be enacted or under a statute that has since been repealed….”.

Criminal Trial Can't Be Punishment

On the other legal aspects, the Court iterated that filing of a charge-sheet does not prevent the High Court from exercising inherent jurisdiction under Section 528 BNSS when the ingredients of the offences are absent.

“…A section number is not a substitute for an ingredient; an accusation is not a substitute for an offence; and a charge-sheet is not a talisman which can protect an otherwise untenable prosecution from judicial scrutiny…”, the court said further.

Based on a detailed analysis, the court inferred that the charges against the petitioner suffered from a 'two-fold statutory infirmity', with one of the charges being under a statute that stood repealed and another charge failing for want of 'legal duty to report'.

“…these are not matters where the prosecution possesses the ingredients but suffers from paucity of proof. The ingredients themselves are wanting. That distinction is decisive. Want of evidence may invite a trial; want of an offence cannot justify one. The case thus falls squarely within categories (1) and (3) of BHAJAN LAL, for even if the allegations and the material collected by the prosecution are accepted as they stand, they do not constitute the offences alleged against the petitioner… A criminal trial cannot be permitted to become the punishment where the law does not disclose the crime”, the court concluded before parting.

Adv Angad Kamath appeared for the petitioner-owner.

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

Case No: Criminal Petition No. 9779 of 2026

Citation: 2026 LiveLaw (Kar) 316

Click Here To Read/Download Order