'Total insensitiveness': Supreme Court stays Allahabad HC order claiming grabbing of breast, pulling string of 'pyjama' not rape

New Delhi: The Supreme Court on Wednesday stayed the recent observations made by the Allahabad High Court in a matter related to attempt to rape, for "showing a total lack of sensitivity" and "inhuman approach".

The High Court had on March 17 stated that grabbing breasts, breaking pyjama string were not enough for charge of attempt to rape.

Taking suo motu cognisance of the matter, a bench of Justices B R Gavai and Augustine George Masih said, "We stay the observations as those are unknown to cannons of laws".

The court said it was a serious matter and there was a total insensitiveness on the part of the judge.

"We are at pains to say that some of the observations made in the order depict a total lack of insensitivity on the part of the author of the judgment," the bench said.

The observations were made in the matter which was at the stage of issuing summons, the bench pointed out.

"We are sorry to use such harsh words against the judge," the bench said.

Solicitor General Tushar Mehta said some judgments contained reasons for staying them. He said the Chief Justice of the High Court should take some steps as the master of roaster.

The bench also noted the observations in the order were made four months after reserving the judgment, so those were not made at the spur of the moment but after due application of mind by the judge.

The case was reserved on November 13, 2024.

"In normal circumstances, we are slow in granting stay at this stage. But since the observations appearing in paragraphs 21, 24 and 26 (of the HC's judgment) are totally unknown to the cannons of law and depict total insensitive and inhuman approach, we are inclined to stay the said observations," the bench said.

The court issued notice to the Union government, the Uttar Pradesh government and other parties. It sought assistance of Attorney General and Solicitor General in the matter.

The bench directed its Registrar concerned to communicate the order to the Registrar General of the High Court for placing it immediately before the Chief Justice "to look into the matter and take such steps as deemed fit and proper".

The High Court's judgment has caused massive outrage across the country.

The apex court has registered the suo motu case as In Re: Order Dated March 17, 2025 passed by the High Court of Judicature at Allahabad and Ancillary Issues.

A forum “We the Women of India” by a letter of March 20, 2025 has brought to the notice of the Chief Justice of India some of the observations made by the single judge of the High Court.

'Just Rights for Children Alliance', a coalition of five NGOs, through its authorised representative, Ravi Kant along with the informant- complainant also filed a special leave petition challenging the validity of the High Court's order, which modified the summoning orders issued against two accused Akash and Pawan in the FIR lodged with Patiyali police station in Kasganj district.

Their joint plea contended the judgment, if allowed to stand, will have far reaching consequences for the prosecution of sexual offences against children across the country, as it sets a precedent that lowers the threshold of accountability and emboldens perpetrators.

In its order, the High Court had said, grabbing a girl’s breasts, breaking the string of her pyjama and trying to drag her beneath a culvert do not suffice to press charges of attempted rape, as they only constitute “preparation”, which is different from an actual attempt to commit the offence.

A single bench of Justice Ram Manohar Narayan Mishra made this observation while partially allowing the revision petition filed by two accused persons.

The petition challenged the lower court’s order summoning them to face trial under Section 376 of the IPC (attempt to rape) read with Section 18 of the Protection of Children from Sexual Offences (Pocso) Act.

“The mere fact that, according to the prosecution’s version, the two accused, Pawan and Akash, grabbed the victim’s breasts, and one of them broke the string of her pyjama and attempted to drag her beneath the culvert, but fled the scene upon the interference of passersby or witnesses, is not sufficient to establish a case under Section 376, 511 IPC or Section 376 IPC read with Section 18 of the Pocso Act,” the court observed.

To bring a charge of attempted rape, the prosecution must establish that the act had progressed beyond the stage of preparation. The difference between preparation and an actual attempt to commit an offence lies primarily in the greater degree of determination involved, it further said.

The prosecution contended that the accused grabbed the victim’s breasts, broke the string of her lower garment, and attempted to drag her beneath a culvert, but fled when witnesses intervened.