The Bombay High Court in its order dated May 10, 2022 has observed that kissing on lips and fondling are not unnatural offences under section 377 of the Indian Penal Code.
Accordingly, the High Court granted bail to a man accused of sexually assaulting a minor boy.
This is an Application under Section 439 of Cr.P.C. filed by the aforesaid Applicant (accused) who is facing trial in Special Case for offences under sections 377, 384, 420 of the Indian Penal Code and Sections 8 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
The man had been arrested last year after minor boy’s father filed an FIR.
The victim boy’s father had found some money missing from their cupboard. The boy told him that he had given the money to the accused person.
The minor further told his father that he used to visit the accused person’s shop at a suburb in Mumbai for recharging an online game, ‘Ola Party,’ which he used to play.
The boy alleged, how on one day, when he went to get the recharge, the accused kissed him on the lips and touched his private parts.
Following this, the boy’s father approached the police who registered an FIR against the accused under relevant sections of the Prevention of Children from Sexual Offences (POCSO) Act and under Indian Penal Code (IPC) Section 377, which makes carnal intercourse or any other unnatural act as a punishable offence.
Bombay High Court
Justice Anuja Prabhudessai reviewed the facts of the case and granted bail to the accused man after noting that a medical test conducted on the minor boy did not support his statement of sexual assault.
The high court said that notably IPC Section 377 carries a maximum punishment of life imprisonment and makes grant of bail difficult.
However, Prabhudessai said the POCSO sections imposed against the accused in this case, carried a maximum sentence of five years and entitled him for bail.
In the present case, the element of unnatural sex was not prima facie applicable, Justice Prabhudessai said. The judge added,
The statement of the victim as well as the First Information Report (FIR) prima facie indicate that the applicant had touched the private parts of the victim and kissed his lips. In my considered view, this would not prima facie constitute offence under section 377 of the Indian Penal Code.
The high court further noted that the accused had already been in custody for a year, and the trial in the case was not likely to begin soon. While granting bail to the accused on a personal bond of Rs 30,000, the judge concluded,
Considering the above facts and circumstances, the applicant is entitled for bail.
If you recall, Bombay High Court Nagpur Bench judge, Justice Pushpa Ganediwala, had faced tremendous flak over a series of judgments that was deemed as controversial for the interpretation of what constitutes as ‘sexual assault’ under the Protection of Children from Sexual Offences (POCSO) Act.
Feminist media had built tremendous pressure on “skin to skin” case bail order, and eventually Ganediwala was neither given extension nor elevation by the Supreme Court collegium. She has now quit and is back practicing as a lawyer. Read Here.
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