‘Totally insensitive’, says SC; stays Allahabad HC’s controversial order on attempt to rape

Terming it as “totally insensitive” and “inhuman”, the Supreme Court on Wednesday stayed the Allahabad High Court’s controversial verdict that said mere grabbing of a girl’s breasts and pulling her 'pyjama' string did not amount to the offence of attempt to rape.

“It was totally insensitive on the part of the learned judge to make such observations,” a Bench of Justice BR Gavai and Justice AG Masih said.

“We are at pains to state that some of the observations made in the impugned order depict a total lack of sensitivity on part of the author of the judgment. The perusal of the judgment would reveal that it was not as if the judgment was dictated at the spur of the moment in the court. The matter was reserved on 13th of November 2024 and after almost a period of more than four months he judgment was pronounced. It’s thus clear that the judge has authored the judgment after application of mind,” the Bench said.

“In normal circumstances we are slow in granting stay at this stage. But since observations are totally unknown to cannons of law and depict a totally insensitive and inhuman approach, we are inclined to stay the observations,” it said.

The top court – which took suo motu cognisance of the matter on Tuesday on the basis of a letter addressed to the CJI by an NGO ‘We the Women of India’ -- also directed that the order be communicated to the Chief Justice of the Allahabad High Court for taking “steps as deemed fit and proper”.

Issuing notice to the Centre, Uttar Pradesh and the accused, the Bench posted the matter for April 15. It asked Attorney General R Venkataramani and Solicitor General Tushar Mehta to assist it in the matter.

At the very outset, Mehta urged the Bench to stay the high court’s order saying it was insensitive.

Earlier, a Bench led by Justice Bela M Trivedi had dismissed an Article 32 petition against the order, saying the petitioner did not have the locus standi to agitate the issue.

The high court’s March 17 ruling created outrage with many lawyers and politicians criticising it for being insensitive.

In 2021, accused Pawan and Akash had allegedly attacked an 11-year-old girl in Kasganj, Uttar Pradesh, and grabbed her breasts, snapped her pyjama string and tried to drag her under a culvert after offering to drop her on their bike while she was walking with her mother. The accused managed to flee when passers-by rushed to rescue the girl after hearing her screams.

The trial court summoned the accused to face charges of attempt to commit penetrative sexual assault under Section 376 with Section 18 (attempt to commit an offence) of the POCSO Act.

However, Justice Ram Manohar Narayan Mishra of the Allahabad High Court altered charges against the accused from attempt to rape and POCSO Act violations to assault and aggravated sexual assault, sparking criticism for the perceived insensitive judgment.

Justice Mishra had said, “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.

Witnesses did not state that she became naked or undressed as a result of what was done by the accused, Justice Mishra had said. “There is no allegation that the accused tried to commit penetrative sexual assault against the victim,” he had said.