New Delhi: The Supreme Court on Wednesday stayed the Allahabad HC’s previous observation that grabbing a woman's breasts and pulling the drawstrings of her "pyjama" did not constitute an attempt to rape, saying it exhibited absolute "insensitivity" and "inhuman approach."
The Supreme Court took significant exception to the high court's observations in its March 17 ruling, describing it as a "very serious matter".
"In normal circumstances, we are slow in granting stay at this stage. But since the observations appearing in paragraphs 21, 24 and 26 are totally unknown to the cannons of law and depict total insensitive and inhuman approach, we are inclined to stay the said observations," a bench of Justices B R Gavai and Augustine George Masih said.
The top court took suo motu cognisance of the matter after the "We the Women of India" collective wrote to Chief Justice of India Sanjiv Khanna.
"Until further orders, there shall be stay to the observations made by the judge in paragraphs 21, 24 and 26 of the order dated March 17, 2025," the bench held.
The staying of the high court's observations would mean the same cannot be used in any judicial proceeding to seek relief by the present set of accused or others.
The high court's verdict held that the attempt to rape offence was not made out against the accused and they were liable to be summoned for the lesser offence of assault or use of criminal force to woman with intent to disrobe her.
"There is no allegation that the accused tried to commit penetrative sexual assault against the victim," the HC further said.
Justice Ram Manohar Narayan Mishra also said, "On facts of the case a prima facie charge attempt to rape is not made out against the accused Pawan and Akash and instead they are liable to be summoned for a minor charge of Section 354(b) IPC, i.e., assault or abuse a woman with intent to disrobing or compelling her to be naked...." Referring to the high court's observations, Solicitor General Tushar Mehta said, "This is one judgement I take a very serious exception." Attorney General R Venkataramani also appeared in the matter.
"It is a very serious matter," Justice Gavai said, "exhibiting total insensitiveness on the part of the judge." The bench added, "We are sorry to use such harsh words against the judge." Mehta said the chief justice of the high court was the master of the roster there and it was advisable that some steps were taken.
"We are at pains to say that some of the observations made in the impugned order and particularly in paragraphs 21, 24 and 26 depict a total lack of insensitivity on the part of the author of the judgment," the bench said.
The top court said it was not as if the judgment was dictated in the spur of the moment in the court.
It noted the high court had reserved its verdict on November 13, 2024, and after almost four months, the judgment was pronounced.
"It is thus clear that the judge has authored the judgment after due application of mind," it said.
The top court issued notices to the Centre, Uttar Pradesh government and the parties before the high court in the matter seeking their responses in the suo motu proceeding.
"The registrar concerned of the this court is directed to forthwith communicate this order to the registrar general of the High Court of judicature at Allahabad, who shall place the same immediately before the Chief Justice of the High Court of judicature at Allahabad, who is requested to look into the matter and take such steps as deemed fit and proper," the bench said.
It posted the matter for hearing on April 15.
During the hearing, one of the advocates appearing in the matter said they moved a plea against the high court order.
The bench said the plea would be heard along with the suo motu proceedings.
Another lawyer said they would file an application on behalf of the survivor's mother.
The accused had challenged the summoning order of a special judge in Kasganj under Section 376 (rape) of the IPC, among other sections.
It came on record that an application was moved before the court of special judge, POCSO Act, alleging that on November 10, 2021, she (informant) was returning from her sister-in-law's home along with her 14-year-old daughter and Pawan, Akash and Ashok, who hailed from the same village, met her on the way and offered a lift to her daughter.
They allegedly stopped their motorbike on the way to her village and grabbed her breasts.
Akash was accused of dragging her and trying to take her beneath the culvert while pulling the drawstrings of her lowers.
The high court said the alleged actions of the accused Pawan and Akash were "not sufficient to draw an inference that the accused persons had determined to commit rape" on the survivor as "apart from these facts no other act was attributed to them to further their alleged desire to commit rape on the victim."
With PTI inputs