The Supreme Court on Wednesday stayed the controversial Allahabad High Court order which had held that acts of grabbing a child victim's breasts, breaking the string of her pyjama and attempting to drag her beneath a culvert do not constitute the offence of rape or attempt to rape [In Re: Order dated 17.03.2025 passed by the High Court of Judicature at Allahabad in Criminal Revision No. 1449/2024 and Ancillary Issues].
The stay order was passed by a Bench of Justices BR Gavai and Augustine George Masih in a suo motu case initiated by the top court after the judgment was brought to the notice of Court by an organisation 'We the Women of India'.
The apex court said that the order showed lack of sensitivity on the part of the High Court judge who passed the same and it was not a spur of the moment order.
Hence, the apex court proceeded to stay the controversial observations.
"We are at pains to state that it shows total lack of sensitivity on part of the author of the judgment. It (the order by High Court) was not even at the spur of the moment and was delivered four months after reserving the same. Thus, there was application of mind. We are usually hesitant to grant stay at this stage. But since observations in paragraphs 21, 24 and 26 is unknown to cannons of law and shows inhuman approach, we stay the observations in said paras," the Court ordered.
Solicitor General (SG) Tushar Mehta concurred with the Court and said there are enough reasons to stay the order.
"Some judgments contains reasons for staying them. It has the same. Para 21,24,26," he said.
"It is a serious matter. Total insensitiveness on part of the judge. This was at the stage of issuing summons! We are sorry to use such harsh words against the judge," Justice Gavai stated.
"Yes, I agree very serious. The way it was dealt with and said that it was mere preparation etc. The Chief justice of High Court as the master of roster should take some steps," the SG weighed in.
The Court then proceeded to seek responses from the Central government and the Uttar Pradesh (UP) government on the matter and also sought the assistance of Attorney General (AG) R Venkataramani and SG Tushar Mehta.
"We issue notice to Union government, State of UP and parties before the High Court. The learned AG and SG shall assist the court," the Court directed.
An appeal moved by the mother of the child-victim against the order was tagged with the suo motu case and will be heard together.
Interestingly, a Supreme Court Bench of Justices Bela Trivedi and Prasanna B Varale had on March 24 declined to entertain a public interest litigation (PIL) petition filed against that Allahabad High Court order.
The Allahabad High Court had made the controversial observations on March 17 while modifying a summoning order.
The High Court had altered the charges against the two accused, who were originally summoned to stand trial under Section 376 IPC (Rape) and Section 18 (Punishment for attempt to commit an offence) of the Protection of Children from Sexual Offences (POCSO) Act.
The High Court instead directed that the accused be tried under the lesser charge of Section 354-B IPC (assault or use of criminal force with intent to disrobe), along with Sections 9/10 of the POCSO Act (aggravated sexual assault).
While doing so, Justice Ram Manohar Narayan Mishra observed,
"...the allegation against accused Pawan and Akash is that they grabbed the breasts of the victim and Akash tried to bring down lower garment of the victim and for that purpose they had broken string of her lower garments and tried to drag her beneath the culvert, but due to intervention of witnesses they left the victim and fled away from the place of incident. This fact is not sufficient to draw an inference that the accused persons had determined to commit rape on victim as apart from these facts no other act is attributed to them to further their alleged desire to commit rape on the victim."
According to the prosecution, the accused, Pawan and Akash, allegedly grabbed the breasts of the 11-year-old victim. Thereafter, one of them broke the string of her pyjama and attempted to drag her beneath a culvert.
However, before they could proceed further, the intervention of passers-by forced them to flee, leaving the victim behind.
Finding it to be a case of attempted rape or attempted penetrative sexual assault under the POCSO Act, the trial court invoked Section 376 along with Section 18 of the POCSO Act and issued a summoning order under these provisions.
Challenging the summoning order, the accused persons approached the High Court, arguing that even if the complaint's version is accepted at face value, no offence of rape was made out. They contended that the case, at most, fell within the scope of Sections 354 (assault with intent to outrage modesty of woman) and 354(B) IPC, along with relevant provisions of the POCSO Act.
On the other hand, the counsel for complainant argued that at the stage of framing charges, the trial court is not required to meticulously analyse or weigh the evidence collected during the investigation. Instead, it only needs to determine whether a prima facie case exists to proceed with the trial, it was contended.
The High Court observed that there was no material on record to suggest that the accused had a determined intent to commit rape on the victim. It also noted that neither the complaint nor the statements of witnesses contained any allegation that the accused Akash himself became unsettled after breaking the string of the minor victim’s lower garment.
“It is also not stated by witnesses that due to this act of the accused the victim got naked or got undressed. There is no allegation that accused tried to commit penetrative sexual assault against the victim,” the order stated.
The allegations hardly constitute an offence of attempt to rape in the case, the Court said.
"In order to bring out a charge of attempt to rape the prosecution must establish that it had gone beyond the stage of preparation. The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination."
As a result, the summoning order was modified, and the lower court was directed to issue a fresh summoning order under the revised sections.
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