Palecanda Ponnappa @ Vishal vs The State Of Karnataka & Anr.

Petitioner - accused No.2 is before the Court calling in question charge sheet dated 07-06-2026 (in Crime No.34 of 2026) filed in C.C.No.575 of 2026, pending before the Civil Judge and JMFC, Ponnampet. The offences alleged against the petitioner are under Section 239 of the BNS and Sections 7 and 14 of the Foreigners Act, 1946 (hereinafter referred to as ‘the Act’ for short).

Facts, in brief, germane are as follows: -

The petitioner is the owner, principal operator and managing person of Devi Villa Homestay, situated within Faith Cinchona Estate at Kutta, Kodagu District, a heritage coffee plantation of over sixty years’ standing. The homestay is duly registered with the Department of Tourism, the Government of Karnataka under the Karnataka Tourism Trade (Facilitation and Regulation) Act, 2015 vide Registration Certificate No.DT/DOT/08/ 00001983, validly issued on 15-01-2024 and subsisting until 15-01-2029. The principal residence, built in the traditional Kodava style by the petitioner’s grandparents is named as ‘Devi Villa’ after the late Smt. Devaki. The homestay is openly listed and reviewed across reputed international and domestic platforms, with several reviews including those given by solo women travelers, recording their experience of feeling ‘safe and secure’, all of which are a mater of public record since the year 2024. The homestay is run as a family enterprise by the petitioner, his wife Smt. Aparna Ponnappa and his mother Smt. Anitha Aiyanna.

It is pertinent to record at the outset that, with effect from 01-09-2025, the Foreigners Act, 1946 stood repealed in its entirety by Section 36 of the Immigration and Foreigners Act, 2025 (hereinafter referred to as 'the Act, 2025' for short). Under the successor regime, the keeper’s obligation to furnish particulars of a foreign guest is contained in Section 8 of the Act, 2025 read with Rule 17 of the Immigration and Foreigners Rules, 2025, with the report having to be maintained in ‘Form III’, which corresponds to the erstwhile ‘Form-C’. Further, by notification S.O.3999 (E) dated 01-09-2025, the contravention of that obligation has been made a compoundable offence for a fixed sum of `50,000/- payable to the Foreigners Regional Registration Officer.

The complainant (respondent No.2), a national of the United States of America holding an Indian Tourist Visa issued on 14-08-2024 and valid until 13-08-2029, first stayed at Devi Villa from 22-03-2026 to 24-03-2026, the booking having been made directly through the petitioner. A positive entry was made by the complainant in the visitor’s book and no complaint of any nature – and no offence under the law relating to foreigners arose in respect of that first stay. This prior, wholly compliant stay, is a matter of record.

The complainant thereafter booked a second stay for the period 12-04-2026 to 18-04-2026. On 11-04-2026, on the petitioner’s suggestion made purely by way of guest safety, the complainant herself booked a one-way cab through the ‘Savari’ mobile application with booking ID No.10605306, generated in her own name and was advised to photograph the driver of the registered vehicle prior to departure. The driver so engaged by the complainant is the very person subsequently arraigned as accused No.3.

On 12-04-2026 i.e., the date of the alleged offence, the complainant arrived at Devi Villa at about 1.00 p.m. and was received by the petitioner’s elder mother, Smt. Anitha Aiyanna. The petitioner himself was however not present at the Villa. There is also his own contemporaneous message recording that he was, at that time, still about forty-five minutes away. The offence, as originally alleged, was that the complainant had been administered a sedative through a welcome drink and was thereafter sexually assaulted. Further, on her own account, being sedated, she was able to describe her assailant only as a ‘bald man’, whom she idenfitifed as, the resident cook and housekeeper. The offence in the complaint was thus laid only against accused No.1 alone and the petitioner was named only as the owner.

Crucially, the complainant did not, at any point during her stay, inform the petitioner or the owners of the homestay of the alleged offence. In her own statement under Section 180 BNSS, she has stated, in terms, that she did not disclose anything to the owner at the relevant time. The contemporaneous WhatsApp record, and the statement of her overseas friend (one Colin), bear this out. Even when Colin pressed her to report the matter, she remained hesitant and reluctant to disclose it to the owners. The petitioner therefore, had neither knowledge nor intention of any offence having allegedly occurred at his premises, a matter spoken to by the complainant herself.

Further, in no version is the petitioner shown to have been present when the alleged incident is said to have occurred. The incident is said to have happened between 1.00 and 2.00 p.m.; yet, even upon the complainant’s own statement under Section 180 BNSS, the petitioner entered the premises only at about 4.00 p.m., while the CCTV places his entry no earlier than about 4.00 p.m. On every account, the petitioner was absent at the material time.

It was only on 18-04-2026, some six days after the alleged event – that the impugned FIR came to be registered in Crime No.34 of 2026 of Kutta Police Station, for the offences punishable under Sections 64(1), 351(2), 238 and 239 of the BNS. Significantly, the FIR was registered upon an oral communication and not upon any written complaint, the mode of registration being expressly recorded as ‘oral’, and Section 3(5) BNS nor the offence under the law relating to foreigners, was alleged therein. The registration of so grave a matter, after six days of the alleged incident and upon a merely oral narration, rendered the resulting record peculiarly malleable and susceptible to subsequent shaping.

On 19-04-2026, at about 5.00 a.m., the petitioner came to be arrested without any written grounds of arrest. The petitioner extended complete cooperation; he led the Investigating Officer to the premises and voluntarily produced, and permitted the seizure of the CCTV/DVR, his mobile handset and the homestay register. Form ‘C’ in respect of the complainant’s stay was itself filed on this very date, 19-04-2026. The charge under Section 3(5) of the BNS was introduced for the first time at the remand stage, without any alteration of the FIR, and the petitioner was remanded to judicial custody.

The complainant’s statement under Section 183 of the BNSS was recorded before the learned JMFC, Kushalnagar on 21-04-2026. The petitioner was enlarged on bail by the Court of the Principal District and Sessions Judge, Madikeri on 02-05-2026, after fourteen days of judicial custody.

Thereafter, and for the first time on 30-05-2026, some six weeks after the event, the complainant gave a further statement, recorded not before any Magistrate but over a video call, introducing an entirely new account implicating the taxi driver who is arraigned as accused No.3; that he had, given her a massage and had then assaulted her. This account finds no mention in the FIR or in her statement under Section 183 of the BNSS. It is, moreover, irreconcilable with her original case as the welcome drink which is said to have sedated her was, on her own narrative, administered well after the driver had left the premises so that, the very stupefaction upon which the original allegation rested cannot explain either an assault by the driver or her failure to name him. The drastic and belated improvement of the prosecution narrative is, with respect, highly suspect.

Acting upon that belated re-statement, the taxi driver came to be arrested on 02-06-2026 and arraigned as accused No.3. The blood samples of the petitioner and of accused No.3 were drawn only on 04-06-2026 with the corresponding FSL report remaining awaited when the charge sheet came to be filed three days later, rendering the investigation thus standing, on the prosecution’s own showing, as incomplete.

On 07-06-2026, when the charge sheet comes to be filed after investigation, the petitioner is drawn as accused No.2. The offences under Sections 64(1), 351(2), 238 and 3(5) sof the BNS were dropped against the petitioner as not applicable but, was charged for offences punishable under Section 239 of the BNS and Sections 7 read with 14 of the Act. The filing of the charge sheet has driven the petitioner to this Court in the subject petition.

Heard Sri Angad Kamath, learned counsel appearing for the petitioner, Sri B.N. Jagadeesha, learned State Public Prosecutor-1 appearing for respondent No.1 and Sri Joseph Anthony, learned counsel appearing for respondent No.2.

The learned counsel Sri Angad Kamath, appearing for the petitioner would vehemently contend that the petitioner is charged of the offences under the Act in blatant ignorance of law, as it is a charge under a repealed statute. It is his further submission that Section 239 of the BNS under which the petitioner is charged has three ingredients that it should govern. The words found in the provision “which he is legally bound to give”, are words of limitation and carry the whole weight of the Section. Therefore, the question is not whether the petitioner knew and when he comes to know. It is whether any law of this Country is obliged by him to inform the police. Section 33 of the BNSS, which is also alleged does not meet the ingredients as required therein. The learned counsel amplifying his submissions would contend that merely alleging in a well drafted complaint or charge sheet of the said offences would not mean that the offences are met in any way. He seeks allowing of the petition as prayed for.

Per contra, the learned State Public Prosecutor - I appearing for the State would contend that the allegations being made under the repealed Act is an admitted fact. The offence being charged under the said Act is indefensible. Insofar as other offence is concerned, the learned State Public Prosecutor would submit that the Police have after investigation filed a charge sheet drawing the petitioner as accused No.2 for the said offence. Therefore, it is for the petitioner to come out clean in a full-blown trial.

The learned counsel Sri Joseph Anthony representing the 2^nd respondent/complainant would also toe the lines of the learned State Public Prosecutor -1 in contending that the matter requires a full-blown trial insofar as offence under Section 239 of the BNS, if not of the offences under the Act, which is laid under a repealed statute. Folly of the Investigating Agency should not place a victim in a worse off situation is his submission.

I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

The afore-narrated facts which are succinctly captured supra, would not require any iteration. The entire issue gets triggered on the registration of a complaint. The complaint reads as follows:

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. In its place came the Immigration and Foreigners Act, 2025, which was brought into force from 01-09-2025. The Act, 2025 swept away and replaced four enactments which had hitherto occupied the field, namely: (i) the Passport (Entry into India) Act, 1920; (ii) the Registration of Foreigners Act, 1939; (iii) the Foreigners Act, 1946; and (iv) the Immigration (Carriers’ Liability) Act, 2000. The provisions now invoked against the petitioner i.e., Sections 7 and 14 of the Foreigners Act, 1946, thus belonged to an enactment which had ceased to occupy the statute book penalties and fines under the repealed enactments, insofar as they are not inconsistent with the provisions of the Act, 2025. Sub-section (3), in turn, preserves the general operation of Section 6 of the General Clauses Act, 1897 ( hereinafter referred to as the 'General Clauses Act' for short).

Two dates, therefore, assume decisive significance. The Foreigners Act, 1946 disappeared from the statute book on 01-09-2025 and the Act, 2025 occupied the field from that very proceedings is alleged to have occurred on 12-04-2026 i.e, more than seven months after the repeal had taken effect. Thus, on the date when the alleged act was committed, the Foreigners Act, 1946 was no longer the law in force.

This chronology strikes at the very root of the prosecution under Sections 7 and 14 of the repealed enactment - The Foreigners Act, 1946. Criminality cannot be conjured out of a statutory provision which had ceased to exist when the alleged act occurred. If the conduct complained of constituted an offence on 12-04-2026, the prosecution must necessarily trace that offence to the law, which was then in force. It cannot travel backwards in time, resurrect a repealed penal provision and fasten criminal liability upon the petitioner under a statute, which had already departed from the legislative field. This principle is not merely one of statutory interpretation instead it receives constitutional sanctity under Article 20(1) of the Constitution of India, which reads as follows:

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 commission of the act charged as an offence. The expression “law in force” is the constitutional sentinel. It admits of neither retrospective creation of an offence nor the post-repeal resurrection of a penal provision to criminalise conduct occurring thereafter. 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 saving clause contained in Section 36(2) of the Act, 2025 does not rescue the prosecution. 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.

It now becomes apposite to notice the exposition of law by the Apex Court in the case of KOLHAPUR CANESUGAR WORKS LIMITED v. UNION OF INDIA^{11.(2000) 2 SCC 536}, wherein the Apex Court has held as follows:

The principle that emerges is unmistakable. The effect of repeal is governed by the saving provision, whether contained in the repealing enactment itself or flowing from Section 6 of the General Clauses Act. But neither species of saving can convert a repealed penal enactment into a continuing source of criminal liability for acts committed after its repeal. Section 6 of the General Clauses Act preserves accrued liabilities; it does not manufacture future ones under a dead statute.

An identical issue fell for consideration before the Jabalpur Bench of the High Court of Madhya Pradesh in the case of MUKHTIYAR AHMED KHAN v. UNION OF INDIA^{22.W.P. No.48763 of 2025, decided on 28-01-2026}, wherein the High Court has held as follows:

I am in respectful agreement with the elucidation of law by the High Court of Madhya Pradesh, particularly in its construction of Section 36 of the Act, 2025. The High Court has recognised the elementary, yet inviolable, principle of criminal jurisprudence that no person can be prosecuted for an act or omission under a penal statute, which was not in force on the date on which the act or omission allegedly occurred. The prosecution before it, founded upon Sections 7 read with 14 of the Act, after the repeal of that enactment, was consequently held to be bereft of legal foundation.

The facts obtaining in the case at hand travel on the same path. The alleged incident is of 12-04-2026. The Foreigners Act, 1946 had ceased to exist with effect from 01-09-2025. Therefore, when the alleged act took place, the Foreigners Act, 1946 itself was repealed and the question of alleging offences under Sections 7 and 14 of the Act do not arise. Neither Section 36(2) of the Act, 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.

The charge under Sections 7 read with 14 of the Act is, therefore, not merely loosely laid; it is laid under a law which was not in existence on the date of the alleged offences. 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 allegation under Sections 7 read with 14 of the Act, qua the petitioner, must therefore fall to the ground.

What then survives for consideration is the offence punishable under Section 239 of the BNS. Section 239 reads as follows:

Section 239 of the BNS is the statutory successor to Section 202 of the erstwhile, the IPC. The provision does not punish mere silence. It does not make every citizen a repository of an omnibus obligation to report every offence of which he may acquire knowledge. 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. It is knowledge coupled with a legal duty, followed by an intentional breach of that duty, which brings the provision to life.

The statutory expression, “which he is legally bound to give”, is therefore, not an ornamental appendage to Section 239 of the BNS. It is its very fulcrum. Remove the legal duty and the offence collapses. Knowledge is innocent unless the law fastens a duty upon it; silence is permissible unless the law commands speech; and omission becomes culpable only when the law first commands an act and the person deliberately chooses not to perform it.

Section 202 of the IPC, which is the statutory predecessor of Section 239 of the BNS has been interpreted by the Apex Court in the case of HARISHCHANDRASING SAJJANSINH RATHOD v. STATE OF GUJARAT^{33.(1979) 4 SCC 502}, wherein the Apex Court has held as follows:

The exposition of law by the Apex Court leaves little room for ambiguity. Three ingredients must coalesce before Section 239 of the BNS can be pressed into service: first, knowledge or reason to believe that an offence has been committed; second, an intentional omission to furnish information concerning such offence; and third, the existence of a legal obligation upon the person concerned to furnish such information. These ingredients do not operate in watertight compartments. The third is foundational to the second. Unless the law commands disclosure, failure to disclose cannot metamorphose into a penal omission.

Put differently, Section 239 of the BNS does not create the duty; it punishes the breach of a duty created elsewhere in law. Therefore, before the prosecution can accuse a citizen of having intentionally omitted to report an offence, it must first point to the law, which commanded that citizen to report it. A penal provision cannot manufacture its own foundational duty by implication.

This takes the Court to the question: wherefrom does such a duty arise in the case of an ordinary member of the public? The answer lies in Section 33 of the BNSS, which reads as follows:

Section 33 of the BNSS is conspicuous in its architecture. 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. The duty is tethered to specified sections. Whether a legal obligation exists is thus not a matter of judicial intuition or prosecutorial preference; it is answered by the statute itself.

This becomes all the more significant because failure to discharge that duty may expose a citizen to penal consequences under Section 239 of the BNS. A provision which creates criminal liability for an omission and particularly one operating alongside a provision which places the burden of proving reasonable excuse upon the person concerned, cannot be expanded by interpretative adventurism. Where the Legislature has chosen enumeration, the Court cannot substitute enlargement. Where Parliament has drawn the circumference, interpretation cannot redraw it.

The legislative ancestry of Section 33 makes the position even more illuminating. The obligation of the public to furnish information of specified offences is no legislative novelty. It has travelled through successive criminal procedural codifications for more than a century and a half. Its journey may be noticed thus:

The legislative history speaks with remarkable consistency. Beginning with the Code of 1861, passing through the Codes of 1872, 1882 and 1898, then Section 39 of the Code of 1973, and finally arriving at Section 33 of the BNSS, 2023, the Legislature has repeatedly revisited the catalogue of offences, which a member of the public is legally bound to report.

The catalogue has never remained fossilised. With the changing complexion of crime, offences have been consciously added. Murder and offences against the State found their way into the fold. Public tranquillity was brought in. Illegal gratification, servants and currency offences followed. Kidnapping for ransom was later incorporated. The BNSS went further and consciously brought within the fold organised crime, petty organised crime and terrorism and enlarged the kidnapping and trafficking cluster.

Yet, through every one of these legislative revisitations, sexual offences have remained outside the enumeration.

This is not an omission occurring in a statute drafted once and left untouched by time. It is an omission which has survived repeated legislative scrutiny. Six codifications, more than a century and a half of legislative history, repeated enlargement of the catalogue, and yet sexual offences do not find place in the statutory enumeration.

When the Legislature has demonstrated, time and again, its willingness to add offences to the reporting obligation whenever offences assumes significance. A Court construing a penal provision cannot travel beyond the statutory frontier and declare that what Parliament did not enumerate must nevertheless be treated as though it had.

The position becomes still clearer when contrasted with statutes where the Legislature has expressly imposed a duty to report sexual offences. The Protection of Children from Sexual Offences Act, 2012 is a ready illustration. Sections 19 and 21 thereof, create an express statutory obligation to report specified offences and provide consequences for failure to do so. Thus, where Parliament intended silence itself to become culpable in the context of sexual offences against children, it said so in unmistakable terms. The contrast is telling. 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.

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. 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.

The charge under Section 239 of the BNS, therefore, cannot stand even at its threshold. 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 result is inevitable. The prosecution against the petitioner suffers from a two-fold statutory infirmity. The charge under Sections 7 read with 14 of the Foreigners Act is sought to be laid under an enactment which, as noticed hereinbefore, stood repealed. The charge under Section 239 of the BNS fares no better, for the very legal duty whose breach constitutes the foundation of that offence is absent qua the petitioner.

One charge thus falls with the repeal of the statute which is sought to sustain it; the other falls for want of the statutory duty necessary to breathe life into it. Neither can be permitted to linger merely to subject the petitioner to the rigours of a criminal trial. Criminal law cannot punish an omission where the law never commanded an act. Section 239 of the BNS punishes the breach of a legal duty; it does not create one out of silence. In the absence of such a duty cast upon the petitioner to report the alleged sexual offence, the very substratum of the charge disappears. The charge, therefore, tumbles down under the weight of the statute itself. The petitioner cannot be made to stand trial for failing to discharge a duty which the law never cast upon him.

It becomes apposite, at this juncture, to notice the judgment of the Apex Court in ANAND KUMAR MOHATTA v. STATE (NCT OF DELHI)^{44.(2019) 11 SCC 706}, wherein the Apex Court holds as follows: "…. …. ….

The principle enunciated in ANAND KUMAR MOHATTA is of considerable significance to the case at hand. The filing of a charge-sheet does not erect an impregnable wall against exercise of the inherent jurisdiction of this Court. A proceeding which was vulnerable to interference at the stage of registration of the crime does not acquire immunity merely because the investigating agency has carried it one step further and christened its allegations through a charge-sheet. An illegality does not gather legitimacy with the passage of stages in a criminal proceeding. Nor does an untenable accusation acquire legal sinew merely because it finds its way from the FIR into the final report.

If the very ingredients of the offences are absent, the Court cannot be reduced to a mute spectator merely because investigation has culminated in a charge-sheet. On the contrary, where an abuse which germinated in the FIR is carried forward into the charge-sheet, the abuse does not disappear; it only becomes aggravated.

The law so declared in the case of ANAND KUMAR MOHATTA supra is reiterated by the Apex Court in MAHMOOD ALI v. STATE OF U.P.^{55.2023 SCC OnLine SC 950}. The High Court exercising jurisdiction under Section 482 of the Cr.P.C. is not required to surrender its judicial scrutiny at the altar of the charge-sheet. Where the circumstances so warrant, the allegations and the material collected during investigation must be examined a little more closely to ascertain whether what is projected as a criminal prosecution is, in truth, one known to law or merely an accusation clothed in the language of penal provisions.

Both these judgments trace their jurisprudential foundation to the locus classic us in STATE OF HARYANA v. BHAJAN LAL^{66.1992 Supp (1) SCC 335}, wherein the Apex Court delineated, illustratively and not exhaustively, the categories in which the extraordinary or inherent jurisdiction could be exercised to prevent abuse of process or to secure the ends of justice. wherein it is held as follows:

The law in BHAJAN LAL, read in the light of ANAND KUMAR MOHATTA and MAHMOOD ALI supra, yields an unmistakable principle that the mere inscription of a penal provision in the FIR or charge sheet does not constitute the offence. The ingredients must exist in fact and in law. 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 High Court, while exercising jurisdiction under Section 482 of the Cr.P.C., is undoubtedly not conducting a mini-trial. But the prohibition against conducting a mini-trial cannot be stretched to mean that the Court must close its eyes to the admitted or unimpeachable material staring at it. There is a world of difference between weighing evidence to determine guilt and examining the material to determine whether an offence exists at all. The former belongs to trial; the latter lies at the very heart of jurisdiction under Section 482 of the Cr.P.C. / Section 528 of the BNSS, when abuse of process is demonstrated.

If the case at hand is tested on the anvil of the aforesaid principles, the answer admits of little ambiguity. Two charges survive against the petitioner, one under Sections 7 read with 14 of the Act and the other under Section 239 of the BNS. Both suffer from infirmities which strike not at the sufficiency of evidence, but at the very existence of the offences in law. The first is sought to be sustained under an enactment which, as noticed hereinbefore, stood repealed with effect from 01-09-2025. Once the statutory foundation itself has disappeared, a charge resting solely upon that foundation cannot be permitted to float in a legislative vacuum.

The second, under Section 239 of the BNS, which founders on an equally fundamental infirmity. 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.

Therefore, 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. To the extent the record demonstrates that the criminal process has nevertheless been set in motion and carried forward despite these foundational statutory infirmities, the proceedings also attract the principle underlying category (7). Permitting the prosecution to continue in such circumstances would amount to compelling the petitioner to undergo the ordeal of a criminal trial merely to secure, at its terminus, a conclusion which is already written into the statute at its threshold. A criminal trial cannot be permitted to become the punishment where the law does not disclose the crime.

Therefore, viewed from any angle, continuation of proceedings against the petitioner for the aforesaid offences would be an abuse of the process of law and would result in manifest and patent injustice. The proceedings, insofar as the petitioner is concerned, cannot be permitted to continue.

For the aforesaid reasons, the following: