According to the Bombay High Court, kissing on the lips and touching a minor’s private parts do not constitute an unnatural offence under Section 377 of the Indian Penal Code.
Despite the fact that such acts would be illegal under the Protection of Children from Sexual Offenses Act (POCSO Act), the Court granted bail to the accused, citing the fact that the POCSO offences with which the accused was charged carried a maximum sentence of five years in prison, and the accused had been in custody for nearly a year.
A single bench of Justice Anuja Prabhudessai was considering a bail plea submitted by one Prem Dubey through counsel Aneeta Vasani under Section 439 of the Code of Criminal Procedure (special powers of high court or court of sessions regarding bail).
The victim’s father filed the FIR under the Indian Penal Code (IPC) Sections 377 (unnatural offences), 384 (extortion), 420 (cheating and dishonestly inducing delivery of property) and the Protection of Children from Sexual Offenses Act Sections 8 (punishment for sexual assault) and 12 (punishment for sexual harassment) (POCSO).
Unnatural offences are defined as having sexual intercourse against the order of nature with any man, woman, or animal, and the penalty is either life imprisonment or a term of imprisonment of either sort of up to ten years.
The provision clarifies that, as stated in Section 377, penetration is sufficient to constitute carnal intercourse.The father claimed that on April 17, 2021, they discovered some money missing from the cabinet. T
he father learned from his son that he used to play an online game and had paid Dubey money to recharge the aforementioned gaming App. Dubey had sexually molested the kid, according to the minor’s parents.
“The victim’s statement as well as the First Information report prima facie establish that the applicant [Dubey] touched the victim’s private parts and kissed his lips,” the court noted. This, in my opinion, would not be prima facie an offence under Section 377 of the IPC.”
“The offence under Sections 8 and 12 of the POCSO Act are punishable for a maximum imprisonment up to five years. The applicant is in custody for almost one year. Charge is not yet framed and trial is not likely to commence in the immediate future. Considering the above facts and circumstances, the applicant is entitled for bail.”
Bombay High Court
Dubey was granted bail on a 30,000 bond and ordered to report to the Oshiwara police station once every two months.