Section 239 BNS Punishes Breach Of Legal Duty, Not Mere Silence After Knowledge Of Offence: Karnataka High Court
The High Court also held that offences under Sections 7 and 14 of the Foreigners Act, 1946 could not be invoked for an alleged act committed after the statute was repealed by the Immigration and Foreigners Act, 2025.
Justice M. Nagaprasanna, Karnataka High Court
The Karnataka High Court has held that Section 239 of the Bharatiya Nyaya Sanhita, 2023 cannot be invoked merely because a private citizen is alleged to have known about an offence and remained silent, unless the prosecution demonstrates a statutory duty to furnish such information.
The High Court quashed the charge sheet against a homestay owner in a sexual assault case filed by a foreign visitor, after finding that the Foreigners Act charge was also laid under a repealed enactment.
The Court was hearing a criminal petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking quashing of the charge sheet and cognisance order, insofar as they concerned the petitioner, who was charged under Section 239 BNS and Sections 7 read with 14 of the Foreigners Act, 1946.
A Bench of Justice M. Nagaprasanna, while observing that “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”, further held that “Section 239 of the BNS punishes the breach of a legal duty; it does not create one out of silence.”
The Bench also observed: “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. As elaborately noticed hereinbefore, no such statutory duty is demonstrated against the petitioner, a private citizen, in respect of the alleged sexual offence. If the omission contemplated by law cannot arise, Section 239 of the BNS cannot operate.”
Advocate Angad Kamath appeared for the petitioner; State Public Prosecutor-I B.N. Jagadeesha appeared for the State; Advocate Joseph Anthony appeared for the complainant.
Background
The petitioner owned and operated a registered homestay in Kodagu. The case arose from allegations made by a foreign tourist during her second stay at the property. The judgment records that the original allegation was directed against the resident cook and housekeeper, while the petitioner was named as the owner of the premises.
The Court noted that, according to the complainant’s own statement, the petitioner was not present at the homestay when the alleged incident took place and that she had not disclosed the alleged offence to the owner at the relevant time. The judgment also records that the petitioner cooperated with the investigation and produced the CCTV/DVR, mobile phone and homestay register.
After investigation, the offences earlier invoked against the petitioner under Sections 64(1), 351(2), 238 and 3(5) BNS were dropped. The charge sheet, however, continued against him for offences under Section 239 BNS and Sections 7 read with 14 of the Foreigners Act, 1946. The petitioner argued that the Foreigners Act charge was under a repealed statute and that Section 239 BNS required a legal duty to inform, which was absent. The State accepted that the charge under the repealed Act was indefensible, but argued that the Section 239 BNS charge required trial.
Court’s Observations
The Court first examined the charge under Sections 7 and 14 of the Foreigners Act, 1946 and noted that the statute had been repealed in its entirety before the alleged incident.
The Court observed: “The Foreigners Act, 1946 did not merely undergo an amendment or suffer deletion of a provision here or there. It stood repealed in its entirety with effect from 01-09-2025. This position is not in dispute.”
Referring to Article 20(1) of the Constitution, the Court held that criminal liability must rest on a law in force on the date of the alleged act. It observed: “A person cannot be prosecuted under a penal law yet to be born; equally, he cannot be prosecuted under a penal law already dead. Criminal liability must stand on the firm ground of a law in force on the date of the alleged act. It cannot rest upon the grave of a repealed enactment.”
The Court held that Section 36 of the Immigration and Foreigners Act, 2025 did not save prosecution under the repealed Foreigners Act for an act allegedly committed after repeal.
Relying on Kolhapur Canesugar Works Limited v. Union of India (2000), the Court observed that a saving clause preserves past consequences but cannot create future criminal liability under a repealed penal statute.
The Court held: “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 also referred to Mukhtiyar Ahmed Khan v. Union of India (2026), where the Madhya Pradesh High Court had taken a similar view on post-repeal invocation of the Foreigners Act, 1946.
Turning to Section 239 BNS, the Court noted that the provision is the successor to Section 202 IPC and does not create a general obligation on every citizen to report every offence.
The Court observed: “Knowledge by itself is not the offence; silence by itself is not the offence. It is knowledge coupled with a legal duty, followed by an intentional breach of that duty, which brings the provision to life.”
Referring to Harishchandrasing Sajjansinh Rathod v. State of Gujarat (1979), the Court held that three ingredients must co-exist: knowledge or reason to believe that an offence was committed, intentional omission to furnish information, and a legal obligation to give that information.
The Court then considered Section 33 BNSS, which requires members of the public to give information about specified offences. It held that the provision is based on enumeration and not on a general duty to report all offences.
The Court observed: “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 Court also contrasted Section 33 BNSS with the Protection of Children from Sexual Offences Act, 2012, where Parliament expressly imposed a duty to report specified offences. It held: “Where the Legislature intended a duty, it created one. Where it intended punishment for breach, it prescribed one. The Court cannot transplant that duty into a statutory field where Parliament has consciously not placed it.”
The Court rejected the contention that the petitioner should face trial merely because a charge sheet had been filed. Referring to Anand Kumar Mohatta v. State (NCT of Delhi) (2019), Mahmood Ali v. State of U.P. (2023), and State of Haryana v. Bhajan Lal (1992), the Court held that the High Court can exercise quashing jurisdiction even after a charge sheet where the ingredients of the offence are absent.
The Court observed: “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.”
It added: “Want of evidence may invite a trial; want of an offence cannot justify one.”
Conclusion
The Court allowed the criminal petition and quashed the charge sheet against the petitioner. It clarified that the observations in the order were confined to consideration of the petitioner’s case under Section 528 BNSS and Section 482 CrPC, and would not bind or influence proceedings against any other accused before any forum.
Cause Title: Palecanda Ponnappa @ Vishal v. The State of Karnataka and Another
Appearances
Petitioner: Advocate Angad Kamath
Respondents: State Public Prosecutor-I B.N. Jagadeesha, Advocate Joseph Anthony