Kissing and touching of private parts would not constitute an offence under section 377 of the Indian Penal Code. This is upheld by the High Court of Bombay through the learned bench led by HONOURABLE JUSTICE SMT. ANUJA PRABHUDESSAI in the case of Prem Rajendra Prasad Dubey v/s. The State of Maharashtra and Anr. BAIL APPLICATION NO. 3731 OF 2021.
Brief facts of the case are that the father of the victim lodged an FIR on 17/04/2021, alleging that they found out some money from the cupboard was missing. After some inquiry, they found out that the victim, a minor boy used to play a game called ‘OLA PARTY’ online. He had paid the money to the Applicant in the present case, to recharge the said gaming app. The victim told his parents that the Applicant had sexually abused him. The victim’s statement along with the FIR prima facie indicates that the Applicant had kissed the victim on his lips and touched his private parts. The Applicant is facing trial in Special Case No.272/2021 pending on the file of Additional Sessions Judge, Borivali (Div.), Dindoshi, Goregaon, Mumbai 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.
After hearing the learned counsel for the Applicant, Ms. Aneeta Vasani, the learned counsel for the Intervenor, Mr. Praveen Kamble and learned APP for the State, Ms. Rutuja Ambekar, as well as examining the records and considering the submissions of the learned counsel for the respective parties, the Hon’ble Judge, on 5th May, 2022 held that touching the private parts and kissing on the lips would not constitute an offence under section 377 of the Indian Penal Code. The Hon’ble judge granted bail to the Applicant i.e. the accused on the grounds that the offence under Sections 8 and 12 are punishable for maximum imprisonment upto five years and the Applicant is in custody for almost one year. According to the Hon’ble judge, in this case, charge is not yet framed and trial is not likely to commence in the immediate future. Hence, bail was granted to the accused on certain terms and conditions that the Accused is to be released on bail on furnishing P.R. bonds worth Rs.30,000/- with one or two solvent sureties. That until further instructions, the Applicant must report to Oshiwara Police Station every two months on the first Monday between 11:00 a.m. and 2:00 p.m. The Applicant must not interfere with the complainant or other witnesses, tamper with evidence, or try to influence or contact the complainant, witnesses, or anyone else involved in the case. The Applicant must keep the Trial Court up to date on his present address and mobile number, as well as any changes in residence or mobile information, if any. Unless exempted, the Applicant must cooperate with the trial’s conduct and appear in court on all occasions.
JUDGEMENT REVIEWED BY- ATIVA GOSWAMI