Nagpur: The Bombay High Court at Nagpur has held that an offence of sexual harassment of a woman under Section 75 of the Bharatiya Nyaya Sanhita, 2023 can prima facie be sustained where the victim is a transgender person who identifies as a woman, and has refused to discharge an Army Agniveer accused of sexual assault on a transgender complainant.
Justice Mehroz K. Pathan, in a judgment pronounced on 3 November 2026, also held that the complainant’s certificate of identity, issued after the alleged incidents, does not prevent the invocation of the Transgender Persons (Protection of Rights) Act, 2019.
The Criminal Revision Application (No. 270 of 2026) was filed by Vishal S/o Sunil Ingle against the order of 06.07.2026 of the Additional Sessions Judge, Akot, rejecting his discharge application under Section 250 of the BNSS. The FIR (Crime No. 493/2025, Akot (Rural) Police Station, Akola) was lodged on 01.11.2025 by a complainant who said that they are a transgender person, and alleged that the applicant, serving in the Army as an Agniveer, proposed marriage and committed forcible sexual intercourse under that pretext on 28.10.2025 and again on 30.10.2025. The offences registered are under Sections 75, 296 and 351(2) BNS read with Section 18(d) of the 2019 Act. The allegations remain to be proved at trial.
The applicant’s counsel argued that Section 75 BNS applies only where the victim is a woman, defined in Section 2(35) as a female human being, so no offence was made out, and that the offence under the 2019 Act was not made out because the complainant obtained the transgender certificate only on 12.02.2026, after the alleged incidents. He also argued that the relationship was consensual and based on a promise of marriage, and that the BNS has no provision corresponding to Section 377 IPC, which was struck down in Navtej Singh Johar.
The State opposed the revision, arguing that the FIR prima facie disclosed unwelcome physical contact and advances and demands for sexual favours, that Section 75(1) does not say the victim must be a woman, and that transgender persons are entitled to self-identify their gender. It submitted that the complainant identifies as a woman and has undergone hormone treatment in furtherance of that identity.
The Court referred to Section 2(k) of the 2019 Act, which defines a transgender person as one whose gender does not match the gender assigned at birth, including transgender men and women irrespective of surgery or hormone therapy, and held that a person may identify as transgender even without a certificate of identity. It held that the complainant’s not having the certificate when the alleged offence was committed would not by itself preclude the invocation of the penal provisions of the 2019 Act, and that Section 18(d) was rightly invoked.
On the argument that the complainant is not a woman, the Court relied on the Supreme Court’s decision in National Legal Services Authority v. Union of India (2014), which held that it is for the transgender person to self-identify their gender and that this cannot be questioned by others. It said that the complainant identifies as a woman in the FIR, and that this self-determination cannot be questioned, at least at this stage when the accused is seeking discharge.
The Court noted that the Transgender Persons (Protection of Rights) Amendment Act, 2026, assented to on 30.03.2026, omitted Section 4(2) of the 2019 Act, which recognised the right to self-perceived gender identity. It held, however, that this provision existed on the dates of the alleged incidents and of the FIR, so the acts attributed to the applicant constituted an offence under the law as it then stood.
Holding that the FIR discloses direct allegations of outraging the modesty of the complainant, who identifies as a woman following hormone therapy, the Court said that an offence under Section 75 BNS appears prima facie made out, as is the offence under Section 18(d) of the 2019 Act, and that the charge-sheet shows sufficient evidence to proceed. It held that the plea that the relationship was consensual is a matter to be evaluated at trial, found no case to interfere with the Sessions Court’s order, and dismissed the revision.
Appearances: For the Applicant: Adv. Anil Thakkar. For the Respondent/State: Ms. Swati V. Kolhe, Additional Public Prosecutor.
Case Title: Vishal S/o Sunil Ingle v. The State of Maharashtra, Criminal Revision Application No. 270 of 2026
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