Would kissing on lips and touching private parts of a minor be an offence under S. 377 Penal Code, 1860? Bom HC answers

Bombay High Court

Bombay High Court: Anuja Prabhudessai, J., observed that touching private parts and kissing on the lips of a minor would not constitute to be an offence under Section 377 of Penal Code, 1860.

An application was filed by the applicant who was facing trial for offences under Sections 377, 384 and 420 of the Penal Code, 1860 and Sections 8 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The complainant alleged that, they found that some money from the cupboard was missing and upon inquiry, they came to know that the victim used to play online OLA PARTY game and he had paid the money to the applicant to recharge the said gaming App. The victim also told his parents that the applicant had sexually abused him.

As per the statement of the victim as well as the FIR report prima facie indicated that the applicant had touched the private parts of the victim and had kissed his lips.

Hence, in Court’s opinion, the above would not prima facie constitute offence under Section 377 of the IPC.

The offence under Sections 8 and 12 are punishable by maximum imprisonment upto 5 years. The applicant was in custody for almost one year and the charge has not yet been framed and trial not likely to commence in the immediate future.

Therefore, in view of the above applicant was granted bail on the following terms and conditions:

  • Furnish P.R. Bonds in the sum of Rs 30,000 with one or two solvent sureties in the like amount.
  • Applicant shall report once in two months on every 1st Monday
  • Applicant shall not interfere with the complainant and the other witnesses and shall not tamper with the evidence or attempt to influence or contact the complainant, witnesses or any person concerned with the case;
  • Applicant shall keep the trial Court informed of his current address and mobile contact number and/or change of residence or mobile details, if any, from time to time.
  • Applicants shall co-operate with the conduct of the trial and attend the trial Court on all dates, unless exempted.

In view of the above terms, bail application stands disposed of. [Prem Rajendra Prasad Dubey v. State of Maharashtra, Bail Application No. 3731 of 2021, decided on 5-5-2022]


Advocates before the Court:

Ms. Aneeta Vasani for the Applicant.

Ms. Rutuja Ambekar, APP for the State.

Mr. Praveen Kamble i/b. Mr. Pramod Kumbhar for the intervenor.

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