NEW DELHI: The Supreme Court on Wednesday stayed the Allahabad high court‘s controversial order, which stated that “grabbing the breast and breaking the pyjama string” were not sufficient grounds to charge an accused with rape or attempted rape.
During the hearing, a bench comprising Justices BR Gavai and AG Masih criticised the high court judge for displaying “total insensitivity” in handling the case.
The apex court remarked that while it regretted using harsh words for the judge, the matter was serious, and the order was not issued impulsively.
What Supreme Court said:
- The top court said: “In normal circumstances, we are slow in granting stay at this stage. But since the observations in paragraphs 21, 24 and 26 are totally unknown to canons of law and depict total insensitive and inhuman approach, we are inclined to stay the said observations.”
- Referring to the high court’s observations, solicitor general Tushar Mehta said, “This is one judgement I take a very serious exception.”
- “It is a very serious matter,” Justice Gavai said, “exhibiting total insensitiveness on the part of the judge.”
- “We are sorry to use such harsh words against the judge,” the bench added.
- “We have perused the order (of the high court). We are at pains to say that some of the observations made in the impugned order and particularly in paragraphs 21, 24 and 26 depicts a total lack of sensitivity on the part of the author of the judgement,” the bench added.
- “The registrar general is forthwith communate the order and place before honourable chief justice of Allahabad HC and take such matter as deemed appropriate,” it added, according to news agency PTI.
The Allahabad HC’s ruling
A few days ago, the high court passed an order in connection with a case involving two men, Pawan and Akash, who allegedly grabbed the minor’s breasts, tore her pyjama string, and attempted to drag her under a culvert while she was walking with her mother.
Initially, they were charged under Section 376 of the IPC (rape) and relevant sections of the Protection of Children from Sexual Offences (POCSO) Act. However, the Allahabad HC ruled that their actions did not qualify as rape or an attempt to rape but instead fell under the lesser charge of aggravated sexual assault, punishable under Section 354(B) IPC and Section 9(m) of the POCSO Act.
The high court’s ruling was based on the argument that “an attempt to commit rape must go beyond the stage of preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination.”
“The specific allegation against Akash is that he tried to drag the victim beneath the culvert and broke the string of her pyjama. 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 court observed in its order.
In view of this, the court opined that the allegations levelled against the accused and facts of the case hardly constituted an offence of attempt to rape in the case. Victim’s family relieved after SC order.
Family relieved after Supreme Court order
The family of the minor girl, who was the victim of an attempted rape in Kasganj district, has expressed relief after the Supreme Court stayed the high court’s ruling in the case.
Advocate Rachna Tyagi, who represented the family in the apex court, shared the update, stating that the survivor’s mother is “extremely relieved.” Meanwhile, the government advocate representing the survivor in the Allahabad High Court was unavailable for comment.
Speaking to PTI, Tyagi said, “The survivor’s mother is extremely relieved because ever since the incident in November 2021, her FIR was not being registered. In January 2022, she had to approach the district court under Section 156(3) to file a complaint.”
“Since then, for over three-and-a-half years, neither the trial court nor the high court ordered the FIR to be registered. Attempted rape is a cognisable offence and an FIR must be filed in such cases,” she added.