‘Total insensitivity’: Supreme Court stays Allahabad HC judgement on attempt to rape

Today, a Division Bench of Justices B.R. Gavai and A.G. Masih stayed a judgement of the Allahabad High Court which had held that “grabbing of breasts” and “loosening of pyjama string” does not amount to a charge for attempt to rape. 

The Court had taken suo moto cognisance of the case, days after the observations of the judge made headlines in leading dailies. “This is total insensitivity by the judge,” Justice Gavai said. 

Solicitor General Tushar Mehta also stated that some judgements contain reasons within themselves to warrant a stay and this was one such judgement. 

What happened? 

On 17 March, Justice Ram Manohar Narayan Mishra of the Allahabad High Court delivered a judgement in an alleged attempt to rape case of a minor girl by two perpetrators—Akash and Pawan. The incident had occurred in 2021. 

In the judgement, Justice Mishra noted that “the difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination.” In this case, he reasoned that the acts of grabbing the breasts of the minor, loosening her lower garment and trying to drag her beneath the culvert did not amount to an actual 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. 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 judge wrote. 

He found that it was more appropriate to summon the two accused under the minor charge of assault or abuse of a woman with intent to disrobing or compelling her to be naked (Section 354(b) of the Indian Penal Code, 1860) and punishment for aggravated sexual assault on a child victim (Section 9 and 10 of the Protection of Children against Sexual Offences Act, 2012). 

The judgement had sparked immediate controversy. On 20 March, Senior Advocate Indira Jaising tweeted that the Court must take suo mot0 cognisance of the matter. Senior Advocate Shobha Gupta also wrote a letter on behalf of an NGO ‘We the Women of India’. 

On 24 March, a bench of Justices Bela Trivedi and P.B. Varale had dismissed an appeal against the decision on the grounds of locus. On 25 March, the Court notified that it would hear the matter suo moto. 

Order stayed, notice issued

In Court today, the judges noted that they were at great pains to hear the insensitive comments made by the judge. They noted that though they would typically not stay a decision at “such an early stage”, the comments in the judgement had necessitated the stay.

Mehta also suggested that as the Master of Roster, the Chief Justice of the Allahabad High Court be asked to take action. 

The bench issued notice to the state of Uttar Pradesh and the parties who appeared before the High Court.