MUMBAI: In the recent hearing in Prem Rajendra Prasad Dubey v. State of Maharashtra & Anr, Bombay HC observed,
Kissing on the lips, or touching private parts of minor is not unnatural offense under Section 377 IPC
Further, Court said that this is an offense under the Protection of Children from Sexual Offences Act (POCSO Act), the Court granted bail to the accused after noting that the POCSO offenses with which the accused was charged, were punishable with maximum imprisonment up to five years and the accused had been in custody for almost a year.
Justice Anuja Prabhudessai said, “The statement of the victim, as well as the First Information report prima facie, indicate that the Applicant had touched the private parts of the victim and had kissed his lips. In my considered view, this would not prima facie constitute offence under section 377 of IPC,”
Section 377 IPC states: – Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
The section clarifies that penetration is sufficient to constitute carnal intercourse as stated in the section.
The accused had been booked under sections 384 (punishment for extortion), 420 (cheating) of IPC, and sections 8 (punishment for sexual assault) and 12 (punishment for sexual harassment) of the Protection of Children against Sexual Offences (POCSO) Act.
The minor also informed that the accused had sexually abused him. The Court said that Section 377 would not apply while proceeding to grant bail.
The Court ordered “The offense under Sections 8 and 12 (of POCSO) are punishable for maximum imprisonment up to five years. The Applicant is in custody for almost one year. A charge is not yet framed and a trial is not likely to commence in the immediate future. Considering the above facts and circumstances, the Applicant is entitled to bail,”
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