Fast Track Court Raises Legal Question Over Applicability of BNS Rape Provision to Transgender Complainant; Says Issue Requires Detailed Examination
JAMMU, AUGUST 30: The Fast Track Court, Jammu, has granted bail to a man accused of rape and other offences in a case involving a transgender complainant who had undergone Gender Reaffirmation Surgery (GRS).
The Court observed that the question of whether the complainant falls within the expression “woman” for the purpose of invoking Section 64 of the Bharatiya Nyaya Sanhita (BNS), which deals with the offence of rape, raises a substantial question of law that requires detailed examination at an appropriate stage of the proceedings.
The bail application was filed by Mohd Sahil, who was arrested on August 10, 2026, in connection with an FIR registered at Janipur Police Station, Jammu.
Prosecution’s Case
According to the prosecution, the petitioner and the complainant had been in a relationship since 2017. The alleged incidents forming the basis of the case occurred after the complainant underwent Gender Reaffirmation Surgery (GRS).
During the hearing, the petitioner’s counsel raised legal questions concerning the applicability of the rape provision under the BNS in the circumstances of the case.
It was argued that the BNS separately recognises transgender persons under the definition of “gender” and that the offence of rape under Section 64 is not framed as a gender-neutral offence.
The defence contended that Section 64 of the BNS could not automatically be invoked without first determining whether a transgender complainant falls within the statutory expression “woman” used in the provision.
Court Says Legal Issue Requires Examination
Presiding Officer Amarjeet Singh Langeh observed that the legal issue raised by the petitioner could not be conclusively determined at the bail stage.
The Court, however, noted that the arguments advanced by the defence raised a prima facie legal issue and that the question required detailed consideration at the appropriate stage of the proceedings.
The Court also took note of the provisions of the Transgender Persons (Protection of Rights) Act, 2019, particularly Section 18(d), which provides punishment for physical, sexual, verbal, emotional and economic abuse against transgender persons.
Investigation Substantially Progressed
While considering the bail application, the Court also took into account the period of custody of the accused and the stage of investigation.
The petitioner had remained in custody since August 10, 2026, and the Court noted that the investigation had substantially progressed.
After considering the facts and circumstances of the case, the Court directed the release of Mohd Sahil on bail.
Bail Bonds Fixed at ₹20,000 Each
The Court ordered that the accused be released on furnishing bail and surety bonds of ₹20,000 each, subject to the conditions imposed by the Court.
The order does not finally determine the legal question concerning the applicability of Section 64 BNS. The Court made it clear that the issue would require examination at the appropriate stage of the proceedings.
The bail order therefore addresses the accused’s interim liberty during the pendency of the case, while leaving the substantive legal questions surrounding the applicability of the rape provision for consideration at a later stage.(KNC)
