The High Court recently 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.

Though such acts would constitute an offence under the Protection of Children from Sexual Offences Act (POCSO Act), the Court proceeded to grant bail to the accused after noting that the POCSO offences with which the accused was charged, were punishable with maximum imprisonment upto five years and the accused had been in custody for almost a year.

“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,” the order passed said.

Section 377 defines unnatural offences as voluntarily having carnal intercourse against the order of nature with any man, woman or animal and the punishment is imprisonment for life or imprisonment of either description for a term extending upto 10 years.

The section clarifies that penetration is sufficient to constitute carnal intercourse as stated in the section.

Apart from Section 377, the accused had been booked under sections 384 (punishment for extortion), 420 (cheating) of IPC and sections 8 (punishment for sexual assault) and 12 (punishment for sexual harassement) of the Protection of Children against Sexual Offences (POCSO) Act.

According to the first information report (FIR), 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 ‘Ola Party’.

The minor also informed that the accused had sexually abused him.

The Court said that Section 377 would not apply while proceeding to grant bail.

"The 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,” the Court ordered.