AUTHOR DETAILS
NAME: R. SIVA SHANKARAN
AFFLIATION: THE CENTRAL LAW COLLEGE, SALEM.
COURSE: B.A.,L.L.B
SEMESTER: 5TH SEMESTER
BHUSPESH THAKUR V. STATE OF HIMACHAL PRADESH: Himachal Pradesh High court has clarified that a transgender cannot invoke section 69 of Bharatiya Nyaya Sanhita, 2023, which penalizes sexual intercourse on a false promise of marriage.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
PETITIONER: BHUSPESH THAKUR
RESPONDENT: STATE OF HIMACHAL PRADESH
CITATION: Cr. MP (M) No. 1798 of 2024
DATE OF JUDGEMENT: August 30, 2024
JUDGE: Hon’ble Mr. Justice Sandeep Sharma.
INTRODUCTION:
In Section 69 of Bharatiya Nyaya Sanhita, 2023, Any person, by deceitful means or by making a promise to marry a woman without any intention of fulfilling the same, has sexual intercourse with her such sexual intercourse not amounting to rape, and which is an punishable offences upto 10 years. But in this case, the high court of Himachal Pradesh grant a bail to a man accused of sexual intercourse on false promise of marriage and states that the Transgender persons cannot invoke the Section 69 of Bharatiya Nyaya Sanhita, 2023.
FACTUAL BACKGROUND:
The victim filed a complaint at Women Police Station Baddi, claiming that she had met the bail petitioner on Facebook during the COVID-19 lockdown and that they had been meeting and communicating ever since. She claimed that even thought the petitioner was aware of her transgender status from the beginning, but yet he kept on insisting on solemnizing marriage with her, she claimed that the bail petitioner took her to Naina Devi and Agra after the lockdown was lifted in the wake of COVID-19 and put a “Sindoor” on her forehead to reassure her that they would be married. Although the fact that she and the petitioner were dating was known to both parities families, she claimed that the bail petitioner’s parents were unable to consummate their marriage. She claimed that she had her sex changed at AIIMS Delhi after the petitioner and his father advised her to fist become a woman. She claimed she had her sex changed at the behest of the bail petitioner and his family, but the bail petitioner had not performed the solemnization of the marriage. She claimed that after learning that the bail petitioner’s family had arranged for him to marry someone else.
A First Information Report (FIR) was filed against the petitioner in light of the background information mentioned above, but before he could be detained, he petitioned this court for interim or temporary bail in the instant petition. Through an order dated 14.08.2024, this court extended the bail petitioner’s temporary release, contingent upon his participation in the investigation. He has prayed for confirmation of the temporary bail granted by order dated 14.08.2024, since the bail petitioner has already joined the investigation and nothing can be retrieved from him
ISSUES RAISED:
In the above fact the court faces the two major issue:
- Whether the section 69 of Bharatiya Nyaya Sanhita, 2023, can be invoked by transgender or not?
- Whether the petitioner can claim the interim bail or not?
ARGUMENTS OF THE PETITIONER:
While requesting that this Court review the contents of the FIR in light of the provisions found in Section 69 of the BNS, Mr. Ajay Kochhar, the petitioner’s learnt senior counsel, argues that no case, much less one under Section 69, is made out; rather, any case against the petitioner is made out under Section 18(d) of the Act, which allows for a maximum punishment of two years. While providing this Court with the status report and record, Mr. Kochhar also argues that, despite the victim repeated claims that she had her sex changed at the petitioner’s and his family members’ request, this fact has not yet been proven on record by providing strong and convincing evidence. Referring to the MLC that was presented on record, Mr. Kochhar claims that the victim refused to have a medical examination, and as a result, there is a wealth of evidence that has been presented thus far regarding any surgery the victim may have had to have her sex changed. Additionally, Mr. Kochhar claims that while the allegations of maintaining physical relations with the victim are untrue, no offence under Sections 69 of the BNSS and 18(d) of the Act can be said to have been committed because the relationship was allegedly maintained before any surgery the victim may have had, in which she allegedly had her sex changed. He claims that because the petitioner has already cooperated with the investigation and nothing can be retrieved from him, the temporary bail that was granted to him by the order dated 14.8.1024, should be upheld in light of the particular facts and circumstances of the case.
ARGUMENT OF RESPONDENT
Mr. Rajan Kahol, the learnt Additional Advocate General, argues that even though there is nothing left to recover from the bail petitioner, he should not be given leniency given the seriousness of the alleged offence. Mr. Kahol argues that even though the victim-prosecutrix declined to have a medical examination to determine her sex, there is no substantial evidence on file indicating that the victim had surgery to change her sex. He wants this Court to review the contents of the FIR. According to him, even if it is assumed that the bail petitioner was unaware of the victim sex change, he cannot be excused from trying to ruin her life despite the overwhelming evidence presented in court to show that he had been sexually abusing her under the guise of marriage. The victim Aadhar card, which was presented on record, plainly shows that she is a woman, according to Mr. Kahol, who argues that if this is the case, the bail petitioner has been properly booked under Section 69 of the BNS. Referring to Section 69’s provisions, Mr. Kahol asserts that violations of the aforementioned law carry a maximum sentence of ten years in prison. He claims that the petitioner for bail should have his request for temporary bail denied outright because he has committed a heinous crime under Section 69 of the BNS and Section 18(d) of the Act.
COURT ANALYSIS
In accordance with the order dated 14.8.1024, the court determines that the bail petitioner has already joined the investigation and that there is nothing left to recover from him. Although the FIR’s contents alone imply that the bail petitioner has committed a horrible crime, the prosecution has not yet proven this fact, if any, through compelling and convincing evidence. The petitioner is the target of a case under Section 69 of the BNS and Section 18(d) of the Act. However, a cursory examination of the aforementioned legal provision, which is reproduced below, indicates that it can only be used in the event that the complainant is a woman.
Section 69: Sexual intercourse by employing deceitful means, etc. Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
After reading the aforementioned legal provision and the victim statement, which was recorded under Sections 154 and 164 of the CrPC and in which she explicitly acknowledged that she is transgender, it seems that Sh. Ajay Kochhar, the petitioner’s learnt senior counsel, has a point when he argues that there isn’t any evidence against the petitioner under Section 69 of the BNS.
As per definition 2(10) of BNS pronoun “he” and its derivatives are used of any person, whether male, female or transgender. For the first time, word “transgender” has been included in the definition of “gender”, meaning thereby, transgender cannot claim themselves to be male or female as they are given separate identity.
Section 2 (35) of BNS “woman” means a female human being of any age.
According to the aforementioned legal provision, a woman is any female person, regardless of age. Given that the terms “woman” and “transgender” have been given distinct identities and defined independently under Section 2 of the BNS, as well as the fact that any physical relationship between the victim and the bail petitioner existed before the victim underwent surgery in which she allegedly had her sex changed, it seems plausible that the bail petitioner’s claim that he could not have been booked under Section 69 of the BNS and must instead be handled in accordance with Section 18(d) of the Act.
As per Section 18 (d) of Transgender persons (Protection of Rights) Act 2019, whoever harms or injures or endangers the life, safety, health or well being, whether mental or physical of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term, which shall not be less than six months, which may extend to two years and with fine.
Furthermore, this court concludes that there is currently no evidence in the record that the petitioner ever attempted to establish a physical relationship with the victim following the alleged surgery in which the victim had her sex changed. Despite the fact that the court below will decide the case based on all of the evidence the prosecution has gathered and filed, given the aforementioned salient features of the case, it seems unreasonable for this court to place the bail petitioner in judicial custody, particularly since nothing can be retrieved from him.
The alleged offence committed by the bail petitioner is undoubtedly a horrible one, but there is currently no documented proof of the petitioner’s guilt, if any, based on strong and convincing evidence. In numerous cases, both the Honorable Apex Court and this Court have ruled that a person is presumed innocent until their guilt is established in a way that complies with the law. The Investigating Agency has not yet proven the bail petitioner’s guilt in the case at hand through compelling and convincing evidence, so his freedom cannot be restricted indefinitely while he is being tried.
According to the learnt counsel for the petitioner, strict conditions are the best way to address the learnt Additional Advocate General’s concern that the petitioner might elude justice if he is granted bail. Naturally, the purpose of bail is to ensure that the accused attends the trial, and the appropriate standard to use when deciding whether to grant or deny bail is whether it is likely that the party will show up for his trial. If not, it is not appropriate to deny bail as a penalty. If not, the standard rule is to post bail rather than go to jail.
The court must consider the nature of accusations, the evidence supporting them, the seriousness of the punishment a conviction would carry, the accused character, and any unique circumstances surrounding the accused involvement in the crime.
PRECEDENT ANALYSIS:
In Dataram Singh vs. State of Uttar Pradesh & Anr., Criminal Appeal No. 227/2018, decided on 6.2.2018, the Hon’ble Apex Court unequivocally declared that the presumption of innocence that is, the idea that a person is innocent until proven guilty is a fundamental tenet of criminal law. The Honorable Apex Court went on to rule that when evaluating a bail request, it is critical to determine whether the accused was cooperating with the investigation to the satisfaction of the investigating officer and was not evading or failing to show up when the officer asked them to. Additionally, the Hon’ble Apex Court ruled that a judge would need to take into account in a suitable decision whether an accused person is hiding from the investigating officer or is hiding because of a sincere and articulated fear of being victimized.
JUDGEMENT:
The court held that the bail petitioner shall be granted with bail with following conditions:
- He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
- He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
- He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
- He shall not leave the territory of India without the prior permission of the Court.
It is clarified that the investigating agency may petition this court to have the bail revoked if the petitioner abuses his freedom or breaks any of the terms placed upon him.
REFERENCE:
- https://indiankanoon.org/doc/199634951/
- https://www-verdictum.in
- https://www-scconline.com
