Kiran Raj

The Supreme Court on Wednesday stayed the March 17 order of the Allahabad High Court which had held that the alleged acts of grabbing the breasts of a minor girl, 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.

A Division Bench comprising Justices B.R. Gavai and Augustine George Masih passed the stay order in a suo motu case initiated following a letter from Senior Advocate Shobha Gupta on behalf of the organisation 'We the Women of India'. The Bench stated in its order, "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."

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The Supreme Court found particular issue with paragraphs 21, 24, and 26 of the High Court’s judgment. "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 Tushar Mehta supported the stay, stating, "Some judgments contains reasons for staying them. It has the same. Para 21, 24, 26." He further added, "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."

Justice Gavai observed, "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."

The Bench proceeded to issue notice to the Union government, the State of Uttar Pradesh, and parties before the High Court. "We issue notice to Union government, State of UP and parties before the High Court. The learned AG and SG shall assist the court," it said. An appeal filed by the mother of the child-victim against the High Court’s order has been tagged with the suo motu proceedings.

The High Court’s observations had arisen while hearing a criminal revision plea filed by the accused, Pawan and Akash, challenging a summoning order issued by the trial court under Section 376 IPC and Section 18 of the Protection of Children from Sexual Offences (POCSO) Act. The trial court had found the conduct of the accused—grabbing the 11-year-old’s breasts, breaking her pyjama string, and attempting to drag her under a culvert, before being interrupted by passers-by—to amount to an attempt to rape.

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The High Court, however, modified the charges to Section 354-B IPC (assault or use of criminal force with intent to disrobe) and Sections 9/10 of the POCSO Act, observing, "...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."

The High Court concluded, "The allegations levelled against the accused Pawan and Akash and facts of the case hardly constitute an offence of attempt to rape in the case. 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."

Earlier, a separate Supreme Court Bench of Justices Bela M. Trivedi and Prasanna B. Varale had declined to entertain a public interest litigation challenging the same High Court order under Article 32, citing lack of locus.

Case Title: 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

Case Number: SMW(Crl) No. 000001 / 2025

Bench: Justice B.R. Gavai and Justice Augustine George Masih