'Insensitivity' : Supreme Court Stays Allahabad HC Ruling That Grabbing Breasts & Breaking Pyjama Strings Of Minor Girl Wasn't 'Attempt To Rape'

"We are at pains to say that some of the observations made in the impugned judgment, particularly paras 21, 24, and 26, depict a total lack of sensitivity on the part of the author of the judgment" the bench observed in the order.

The bench noted that the judgment was not dictated on the spur of the moment but was delivered after reserving for nearly four months. This meant that the Judge delivered the verdict after due consideration and application of mind. The bench observed that since the observations are "totally unknown to the tenets of law and depict total insensitivity and inhuman approach", it was constrained to stay the observations.

The bench issued notice to the Union of India, the State of Uttar Pradesh and the parties before the High Court. Solicitor General of India Tushar Mehta appeared today and denounced the judgment, saying that it was shocking. 

The cognisance is taken based on the letter sent by Senior Advocate Shobha Gupta, on behalf of the NGO 'We the Women of India'.

It is the case of the prosecution that the accused persons, Pawan and Akash, grabbed the breasts of the 11-year-old victim and one of them, namely Akash, broke the string of her pyjama and tried to drag her beneath the culvert. Finding it to be a case of attempt to rape or attempt to commit penetrative sexual assault within the purview of the Protection of Children from Sexual Offences Act, 2012, the concerned trial court invoked Section 376 with Section 18 (attempt to commit an offence) of the POCSO Act and issued summoning order under these sections.

However, the High Court instead directed that the accused be tried under the minor charge of Section 354-B IPC (assault or use of criminal force with intent to disrobe) read with Sections 9/10 of the POCSO Act (aggravated sexual assault). The order created a huge controversy, with several members of the public criticising it.

In this case, the High Court drew a distinction between preparation and attempt.

“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 difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination,” a bench of Justice Ram Manohar Narayan Mishra observed as it partly allowed the criminal revision plea filed by 3 accused.

It should be noted that the Supreme Court bench of Justices Bela M. Trivedi and PB Varale had dismissed an Article 32 writ petition challenging the order on grounds of locus recently.