Supreme Court Takes Suo Moto Cognisance Against Allahabad HC Ruling That Grabbing Breasts & Breaking Pyjama String Won't Constitute Attempt To Rape

Days after the Allahabad High Court held that grabbing the breasts of a minor girl, breaking the string of her pyjama and trying to drag her beneath a culvert would not come under the offence of rape or an attempt to rape, the Supreme Court has taken a suo moto cognisance of the order.

The matter will be listed before a bench of Justices B.R. Gavai and AG Masih tomorrow.

The cognisance is taken based on the letter sent by Senior Advocate Shobha Gupta, who is also a founder of 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.