Taking umbrage at the Allahabad High Court for its ruling that grabbing a minor girl’s breasts, breaking the string of her pyjama and trying to drag her beneath a culvert would not come under the offence of rape or an attempt to rape, the Supreme Court on Wednesday stayed the controversial observations in March 17, 2025 attributing to them to “lack of insensitivity”.
Terming it a “serious matter” and “total insensitiveness” on part of the judge who authored the judgement, Justice BR Gavai heading a bench also comprising Justice Augustine George Masih said, “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.”
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“We are at pains to state that it shows a total lack of sensitivity on the part of the author of the judgment. It was not even at the spur of the moment and was delivered four months after reserving the same. Thus, there was an application of the mind. We are usually hesitant to grant a stay at this stage. But since observations in paragraphs 21, 24, and 26 are unknown to the tenets of law and show an inhuman approach. We stay the observations in said paras,” the top court said in its order.
Seeking the assistance of Attorney General of India R Venkataramani and Solicitor General Tushar Mehta in the hearing of the matter, the top court also issued notice to the central and the Uttar Pradesh governments, and the parties in the matter before the High Court.
Staying the controversial observations in the judgment, the bench took suo motu cognizance of the issue, after senior advocate Shobha Gupta representing the organisation ‘We the Women of India’ in a letter brought the controversial observations to notice of the Chief Justice of India, Justice Sanjiv Khanna.
The bench directed the top court Registry to convey its order to the Allahabad High Court Registry for placing it before the Chief Justice of the High Court for necessary action and listed the matter for hearing after two weeks.
The mother of the minor victim, who also approached the top court against the High Court order, was given the liberty to implead herself in the case.
In its March 17, 2025, order, Justice Ram Manohar Narayan Mishra of the Allahabad High Court had modified the charges against the two accused, who were originally summoned to stand trial under Section 376 IPC (rape) and Section 18 (punishment for attempt to commit an offence) of the Protection of Children from Sexual Offences (POCSO) Act.
The high court, however, directed that the accused be tried under the lesser charge of Section 354-B IPC (assault or use of criminal force with intent to disrobe), along with Sections 9/10 of the POCSO Act (aggravated sexual assault).
“In the present case, 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 court order stated.
