The Supreme Court on Wednesday (March 26, 2025) stayed an Allahabad High Court order of March 17, which concluded that “mere” grabbing the breasts of a minor victim, breaking the string of her pyjama to “bring down” her lower garment are not sufficient to constitute an offence of attempt to rape.
A day after the Supreme Court took suo motu cognisance of the order, a Bench headed by Justice B.R. Gavai said the observations made by a Single Judge Bench of Justice Ram Manohar Narayan Mishra of the High Court was “totally insensitive, inhuman” and “unknown to the tenets of law”.
Justice Gavai pointed out that certain paragraphs of the order, which graphically recounted the trauma endured by the minor victim at the hands of the two accused persons only to conclude their actions did not show any determination on the part of duo to rape her showed a “complete lack of sensitivity”.
The Bench said what made it worse was the order was not dictated by the judge on the spur of the moment. The case was reserved for orders in November 2024. The order passed on March 17, almost four months later, was, even according to Justice Mishra, after “thoughtful consideration and meticulous examination of the facts of the case”.
The apex court was assisted by Attorney General of India R. Venkataramani and Solicitor General Tushar Mehta, who urged the Bench to examine the suo motu case with great care.
The court issued notice to the Union government and the State of Uttar Pradesh. The mother of the minor victim involved was given liberty to implead herself in the case. The court directed the Supreme Court Registry to convey its order to the Allahabad High Court Registry for placing it before the High Court Chief Justice for necessary action. The court listed the case after two weeks.
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The March 17 order was based on a revision plea filed by the accused against a summons from the trial court on the charge of rape. Justice Gavai remarked about the incongruity and damage caused by making these remarks when the case was still at the nascent stage of issuance of summons to the accused.
The three paragraphs the apex court found particularly distasteful referred to how the two accused had grabbed the breasts of the victim, broke the string of her pyjama and tried to drag her beneath a culvert before they fled when passers-by spotted them.
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Justice Mishra had said these facts did not support a summons order on the charges of Sections 376 (rape), 511 (attempt to commit offences punishable with life imprisonment) or rape read with Section 18 of the Protection of Children from Sexual Offences (POCSO) Act. Section 18 punishes an attempt to commit an offence under the POCSO law.
The Single Judge had modified the summons order after “thoughtful consideration and meticulous examination of the facts of the case” to note that “a prima facie charge attempt to rape is not made out against the accused”.
“Instead they are liable to be summoned for minor charge of Section 354(b) IPC i.e. assault or abuse a woman with intent to disrobing or compelling her to be naked and Section 9 of POCSO Act provides punishment for aggravated sexual assault on a child victim,” the March 17 order had read.
Published – March 26, 2025 11:30 am IST
