The court granted the defendant bail on a personal bond of ₹30,000. (Representative image)
Mumbai: The Bombay High Court observed that kissing on the lips and caressing are not unnatural offenses under Section 377 of the Indian Penal Code and granted bail to a man accused of assault sexually an underage boy. In a recent order, Judge Anuja Prabhudessai granted bail to the man, who was arrested last year following a police complaint filed by the 14-year-old boy’s father.
According to the FIR, the boy’s father found money missing from their closet. The boy told him that he had given the money to the accused. The miner said he used to go to the accused’s shop in a Mumbai suburb to top up an online game, ‘Ola Party’ which he was playing. One day, when he went to get the refill, the accused kissed him on the lips and touched his private parts, according to the boy.
Following this, the boy’s father contacted the police who registered an FIR against the accused under the relevant sections of the Prevention of Sexual Offenses Against Children Act (POCSO) and under Section 377 of the Indian Penal Code (IPC), which makes carnal intercourse or any other unnatural act act as a punishable offence.
In particular, Article 377 of the ICC provides for a maximum sentence of life imprisonment and makes it difficult to grant bail. Judge Prabhudessai, while granting bail to the defendant, noted that a medical test carried out on the boy did not support his claim of sexual assault.
She added that the POCSO articles imposed on the defendant carried a maximum sentence of five years and entitled him to bail.
In the present case, the element of unnatural sex was not prima facie applicable, Judge Prabhudessai said.
“The victim’s statement as well as the first information report (FIR) indicate on their face that the petitioner touched the victim’s private parts and kissed her lips. In my view, this would not prima facie constitute an offense under Section 377 of the Indian Penal Code,” the judge said.
The high court further noted that the defendant had already been in custody for a year and the trial in this case was not likely to start anytime soon. “In view of the above facts and circumstances, the applicant is entitled to bail,” the High Court said while granting bail to the accused on a personal bond of ₹30,000.
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