Supreme Court Condemns Allahabad HC's "Grabbing Breasts Not Rape" Order

The Supreme Court of India took suo motu cognisance of a POCSO case as they deemed a previous order by the Allahabad High Court "insensitive" and inhumane." On March 17, the HC made a controversial statement while hearing the plea of two men challenging on trial for an alleged rape attempt on a minor. "Grabbing a woman's breasts and drawstrings of her pyjama is not rape," Justice Ram Manohar Narayan Mishra’s said, drawing criticism nationwide. The Supreme Court upheld the HC's order after the contentious observations were brought to the notice of Chief Justice of India Sanjiv Khanna by the “We the Women of India” collective.

Background of the case

According to Live Law, the case dates back to November 10, 2021, when the three accused, identified as Pawan, Akash and Ashok, offered to drop an 11-year-old girl home on their motorcycle. Her father, trusting them, allowed her to go with them. On the way, the men stopped and began sexually assaulting her.

The prosecution said the accused grabbed her breasts, broke the string of her pyjamas, and attempted to drag her under a culvert in Uttar Pradesh’s Kasganj. They fled when passersby intervened, leaving the girl behind. In the recent order, the high court ruled that the allegations “hardly constitute an offence of attempt to rape.”

“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. To bring out a charge of attempt to rape, the prosecution must establish that it had gone beyond the stage of preparation,” the Justice Mishra of the Allahabad HC observed.

The Allahabad High Court delivered the controversial ruling while allowing the accused's criminal revision plea. The bench directed on March 17 that the accused be tried under Section 354-B of the IPC (assault or use of criminal force with intent to disrobe) along with Sections 9/10 of the POCSO Act (aggravated sexual assault). 

SC takes suo motu cognisance

Justice Mishra held that the attempt to rape offence was not made out against the accused and stated they were liable to be summoned for the lesser offence of assault or use of criminal force to woman with intent to disrobe her. An SC bench of Justices BR Gavai and Augustine George Masih condemned the HC ruling. 

Viewing the case as a "very serious matter," the SC said, “In normal circumstances, we are slow in granting a stay at this stage. But since the observations in paragraphs 21, 24 and 26 (of the judgment) are totally unknown to canons of law and depict totally 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.” He added that the chief justice of the high court was the master of the roster there and that some steps should have been taken. The apex court said, “We are sorry to use such harsh words against the judge.”

The apex court also noted that the Allahabad Court's order was not dictated at the spur of the moment but was pronounced after it reserved the verdict for almost four months. The SC also issued notices to the Centre, the Uttar Pradesh government and the parties before the HC, seeking their responses in the suo motu proceeding.

The bench directed the registrar (judicial) of the Supreme Court to communicate its order to the registrar of the Allahabad High Court, following which it would be “immediately” placed before the chief justice there. The HC chief justice has been ordered to re-examine the case. The matter would be heard after two weeks.