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Holding hand of minor to express love, inadvertent physical touch without sexual intent not assault under POCSO: HC

According to the complaint filed by the minor, she was a student and the accused was her neighbour. One day while she was going to her tuition classes, the accused restrained her and "expressed his love" towards her.

Written by Omkar Gokhale | Mumbai | Updated: December 28, 2020 2:51:12 pm
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Granting anticipatory bail to a 27-year-old man from Baramati in Pune district, who was booked for holding the hand of a 17-year-old and “expressing love” towards her, the Bombay High Court recently held that merely holding or touching hand to express love towards a minor without sexual intent does not amount to offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.

A single-judge bench of Justice Bharati H Dangre on December 22 passed an order on the pre-arrest bail plea by the 27-year-old man, who was booked by Baramati City Police earlier this year for punishable offences under Sections 354 (criminal force committed on a woman to outrage her modesty) and 506 (criminal intimidation) of the Indian Penal Code and Section 7 (sexual assault of minor) of the POCSO Act, among others.

According to the complaint filed by the minor, she was a student and the accused was her neighbour. One day while she was going to her tuition classes, the accused restrained her and “expressed his love” towards her. When she ignored him, he held her right hand and expressed his feelings, the complaint said. The complaint said the minor was scared and left the spot. Later, she was warned against reporting the incident to anyone, she said.

The man then allegedly forwarded messages from different SIM numbers to her mobile phone. The man allegedly told her that he had opened an Instagram account to “malign her image” in her friend circle. After being threatened for nearly eight months, the complaint said, the minor approached the police and lodged the complaint.

After hearing submissions and perusing material on record, the bench led by Justice Dangre observed, “Prima facie, looking at the allegations levelled in the FIR, the applicant expressed his feeling of love towards the complainant by holding her hand on one occasion. This by itself cannot be said to be falling within the sweep of Section 7 (of the POCSO Act), since prima facie the ingredients of Section 7 are not made out in the wake of allegations in the complaint or attempting to contact her by use of electronic communication…any physical touch inadvertently or without any sexual intent could not be brought within the sweep of the said section.”

However, the court said that other offences against the applicant, including stalking as per Section 354D of the Indian Penal Code, were bailable.

Allowing pre-arrest bail plea of the applicant, the bench said, “Subject to the stipulation that the applicant will in no manner pressurise the complainant, he is entitled for being released on bail in anticipation of his arrest.”

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