Case at a Glance
A 24-year-old accused sought discharge from charges under Sections 75, 296 and 351(2) of the Bharatiya Nyaya Sanhita and Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019, arguing that the complainant was transgender and not a ‘woman’, and that she obtained her transgender identity certificate only after the alleged incidents. Justice Mehroz K. Pathan of the Nagpur Bench rejected both arguments. Relying on National Legal Services Authority v. Union of India, (2014) 04 SC CK 0023, the Court held that self-identified gender cannot be questioned at the discharge stage, that the absence of a certificate at the time did not bar the 2019 Act’s penal provisions, and that consent is a matter for trial. The revision was dismissed.
The complainant, a transgender woman, alleged offences committed in late October 2025, and an FIR was registered on 1 November 2025 under Sections 75, 296 and 351(2) of the BNS read with Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019. The accused, a 24-year-old service member, applied for discharge under Section 250 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The Additional Sessions Judge rejected the application on 6 July 2026, and the accused filed this revision.
The defence argued that Section 75 BNS applies only where the victim is a woman, relying on the BNS definition of ‘woman’ as a female human being; that the complainant obtained her transgender certificate only on 12 February 2026, after the alleged incidents, so no offence under the 2019 Act was made out; that any relationship was consensual; and that the BNS has no counterpart to the former Section 377 IPC read down in Navtej Singh Johar v. Union of India, (2018) 09 SC CK 0136. The State replied that the complainant identifies as a woman, has undergone hormonal treatment, and is entitled to self-identify.
The Key Question Before the Court
Can an accused be discharged of a Section 75 BNS charge because the complainant is a transgender woman, or because she had no transgender identity certificate when the alleged offences took place?
Self-Identification, the Certificate and the 2026 Amendment
The Court noted that the 2019 Act defines a transgender person to include trans men and trans women, whether or not they have undergone surgery or therapy, and observed that a person may identify as transgender even in the absence of a certificate of identity. Relying on National Legal Services Authority v. Union of India, it held that “it is entirely for the transgender to self-identify her gender”, and that this self-determination cannot be questioned at the discharge stage. It accepted that the certificate was issued on 12 February 2026, after the incidents, but held that its absence at the time did not, by itself, bar the penal provisions of the 2019 Act. The Court also stated that allegations of assault and outraging modesty can be sustained even where the victim is a transgender person who identifies as a woman.
The Court addressed the Transgender Persons (Protection of Rights) Amendment Act, 2026, which received assent on 30 March 2026 and omitted Section 4(2) of the 2019 Act, the provision recognising a right to self-perceived gender identity. Since that provision was in force on the dates of the alleged incidents and the FIR, the Court held that the acts constituted an offence under the law as it stood at the relevant time; whether the prosecution can prove it is for trial. The plea of consent, too, was a matter to be evaluated at trial. Finding that the FIR contained direct allegations prima facie attracting Section 75 BNS and Section 18(d) of the 2019 Act, the Court dismissed the revision as “devoid of substance and merits”.
What the Court Actually Held
- A transgender woman’s self-identified gender cannot be questioned at the discharge stage; allegations under Section 75 BNS can be sustained where the victim is a transgender person identifying as a woman.
- The lack of a transgender identity certificate when the alleged offences occurred does not by itself bar the penal provisions of the 2019 Act.
- Section 4(2) of the 2019 Act, later omitted by the 2026 Amendment Act, was in force at the relevant time, and the acts are judged by the law as it then stood.
- Consent is a trial issue; the refusal of discharge was upheld and the revision dismissed.
Why This Judgment Matters
- It is among the early rulings applying the BNS sexual harassment provision to a transgender woman complainant, relying on the self-identification principle in NALSA.
- It answers a common defence that protection depends on holding an identity certificate on the date of the offence.
- It addresses the effect of the 2026 amendment omitting Section 4(2), holding that the law in force on the date of the acts governs.
What Should Advocates Take Away From the Judgment?
For Complainants
- A transgender woman can lodge a complaint of sexual harassment under Section 75 BNS even without an identity certificate at the time.
- Penal protection under Section 18(d) of the 2019 Act is available alongside BNS offences.
- Questions about the relationship or consent are tested at trial, not used to end the case at the outset.
For Counsel
- At the discharge stage, the court tests only whether the FIR and material disclose the ingredients; challenges to gender identity will not succeed there.
- Where an amendment changes the 2019 Act, argue from the law as it stood on the date of the alleged acts.
- Note that the judgment does not separately analyse the BNS definition of ‘woman’; it rests on self-identification.
Key Takeaways
- Self-identified gender cannot be challenged at the discharge stage.
- No identity certificate at the time is no bar to the 2019 Act’s penal provisions.
- Offences are judged by the law in force on the date of the acts, despite the 2026 amendment.
- Consent is for trial; the discharge refusal stands.
Frequently Asked Questions
Does Section 75 BNS protect a transgender woman?
On this ruling, allegations under Section 75 BNS can be sustained where the victim is a transgender person who identifies as a woman. The Court relied on the self-identification principle in NALSA v. Union of India.
Is a transgender identity certificate needed before a complaint can be pursued?
No. The Court held that the absence of a certificate when the offences allegedly occurred does not by itself bar the penal provisions of the 2019 Act.
Was the accused found guilty?
No. The Court only refused discharge. Whether the prosecution proves the charges, and whether there was consent, will be decided at trial.
Conclusion
The order keeps the prosecution alive on a short but significant footing: at the threshold, a transgender complainant’s self-identification as a woman is accepted, and the timing of her certificate does not decide whether the law protects her.
Practical takeaway: Defence objections based only on the complainant’s gender identity or the date of her certificate are unlikely to secure discharge; the case will turn on the evidence at trial.
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