NEW DELHI: The Supreme Court on Wednesday stayed Allahabad high court’s controversial order stating that “grabbings breast and breaking pyjama string” were not enough to charge an accused with the offence of rape or attempt to rape.
During the hearing, the bench of justices BR Gavai and AG Masih said that HC judge, who passed the order, exhibited “total insensitivity” in handling the case.
The apex court said that it is sorry to use harsh use for the judge but it is a serious matter and the order was passed by judge not on spur of a moment.
“Since the observations made in para 24, 25, 26 are not tenable in law and depict insensitivity, we are inclined to stay the observation. We issue notice to the Union, Uttar Pradesh. Learned AG and SG is able to assist the court in this matter,” Live Law quoted SC bench as saying.
Also read: SC takes suo motu cognisance of controversial Allahabad HC’s ‘grabbing breasts not rape attempt’ order
“The registrar general is forthwith communate the order and place before hon’ble CJ of Alld HC and take such matter as deemed appropriate,” it added.
This comes after a high court passed an order in connection with a case involving two men, Pawan and Akash, who allegedly grabbed the minor’s breasts, tore her pyjama string, and attempted to drag her under a culvert while she was walking with her mother.
Initially, they were charged under Section 376 of the IPC (rape) and relevant sections of the Protection of Children from Sexual Offences (POCSO) Act. However, the Allahabad HC ruled that their actions did not qualify as rape or an attempt to rape but instead fell under the lesser charge of aggravated sexual assault, punishable under Section 354(B) IPC and Section 9(m) of the POCSO Act.
Also read: Grabbing minor’s breasts, breaking her pyjama string doesn’t amount to rape attempt: Allahabad high court
The high court’s ruling was based on the argument that “an attempt to commit rape must go beyond the stage of preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination.” “The specific allegation against Akash is that he tried to drag the victim beneath the culvert and broke the string of her pyjama.
It is also not stated by witnesses that due to this act of the accused the victim got naked or got undressed. There is no allegation that accused tried to commit penetrative sexual assault against the victim,” the Court observed in its order. In view of this, the court opined that the allegations levelled against the accused and facts of the case hardly constituted an offence of attempt to rape in the case.
