he offence under Sections 8 and 12 (of POCSO) are punishable for maximum imprisonment upto 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,Recently The Bombay High Court in Prem Rajendra Prasad Dubey v. State of Maharashtra & Anr observed that kissing on lips and touching private parts of a minor would not prima facie amount to unnatural offence under Section 377 of the Indian Penal Code.
The Court proceeded to grant bail to the accused after noting that the POCSO offenses with which the accused was charged, were punishable with maximum imprisonment of up to five years and the accused had been in custody for almost a year. further, the court observed that though such acts would constitute an offense under the Protection of Children from Sexual Offences Act (POCSO Act),
The bench comprising of Justice Anuja Prabhudessai passed the orders:
“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 defines the scope of unnatural offenses as voluntarily having carnal intercourse against the order of nature with any man, woman or animal. The punishment for such an offense is imprisonment for life or imprisonment of either description for a term extending up to 10 years.
In section 377 IPC emphasizes that penetration is sufficient to constitute carnal intercourse.
The other sections under which the accused had been booked are 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.
Accordingly, A first information report (FIR) was filed alleging that the father of the minor had found some money missing from their cupboard. Upon asking, the minor informed that he had given that money to the accused for recharging an online game called ‘Ola Party’.
The minor also informed that the accused had sexually abused him. The Court iterated that Section 377 would not apply while proceeding to grant bail.