Explained: Allahabad HC’s controversial ‘grabbing breasts not rape’ order paused by Supreme Court

A ruling by the Allahabad High Court in an attempted rape case involving a minor has sparked controversy and has now reached the Supreme Court.

The Supreme Court on Wednesday stayed the controversial ruling of the Allahabad High Court.

Notably, the high court’s statement was made in a Protection of Children from Sexual Offences (Pocso) case concerning the alleged rape of a minor girl in Kasganj.

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It has faced backlash from various experts and political figures, including Union Minister for Women and Child Development Annapurna Devi.

But what did the ruling state, and what were the details of the case? How did people respond to it?

We will answer these questions.

What did Allahabad HC say in its ruling? 

In the Pocso case, the Allahabad High Court ruled that grabbing the victim’s breasts and snapping her pyjama strings did not amount to rape or attempted rape but constituted serious sexual assault.

Justice Ram Manohar Narayan Mishra, who delivered the judgment, stated that after reviewing the facts of the incident involving an 11-year-old girl, it was an assault on a woman’s dignity but could not be classified as an attempt to rape.

The court said, “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 ruling was issued in response to a revision petition filed by two individuals challenging an order by a Special Judge in Kasganj, who had summoned them under Section 376 of the IPC along with other charges.

The high court modified the charges against the accused, who had initially been summoned under Section 376 IPC (Rape) and Section 18 of the Protection of Children from Sexual Offences (Pocso) Act, which is punishment for attempting to commit an offence.

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What was the case about?

According to the case details, an application was filed before the Special Judge, Pocso Act, alleging that on November 10, 2021, at around 5:00 pm, the informant was returning home with her 14-year-old daughter from her sister-in-law’s house.

On the way, three men from her village, Pawan, Akash, and Ashok, met her on a muddy road and asked where she was coming from. When she mentioned she was returning from her sister-in-law’s house, Pawan offered to drop her daughter home on his motorcycle.

Trusting his assurance, she allowed her daughter to go with him.

However, the accused stopped the motorcycle on the way to her village. They began grabbing the girl’s breasts, and Akash attempted to drag her beneath a culvert while pulling the string of her pyjama.

Two people arrived at the scene after hearing the girl’s cries. The accused then waved a country-made pistol, threatened them, and fled. Based on the statements of the victim and witnesses, the court initially summoned the accused on charges of rape.

Upon reviewing the case materials, the court stated, “In the present case, the allegation against accused Pawan and Akash is that they grabbed the breasts of the victim and Akash tried to bring down the lower garment of the victim and for that purpose, they had broken string of her lower garments and tried to drag her beneath the culvert, but due to intervention of witnesses they left the victim and fled away from the place of incident.”

The court ruled that these actions alone were insufficient to establish that the accused were determined to commit rape, as no further steps were taken to “further their alleged desire to commit rape on the victim”.

In its order dated March 17, the court further observed that the main allegation against Akash was that he attempted to drag the victim beneath the culvert and pulled the string of her pyjama. However, the witnesses did not state that the act resulted in the victim being undressed or naked.

“There is no allegation that the accused tried to commit penetrative sexual assault against the victim,” it said.

It ruled that the allegations against Pawan and Akash, along with the facts of the case, did not amount to an attempt to rape. The prosecution was required to prove that the act had progressed beyond mere preparation to establish such a charge.

“The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination,” the court added.

It concluded that, based on the case facts, “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 and Section 9 of POCSO Act provides punishment for aggravated sexual assault on a child victim.”

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What the top court said

A bench comprising Justice B.R. Gavai and Justice AG Masih strongly criticised the High Court’s stance, describing its order as “shocking.”

“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 stated in its order.

The top court said that the judgment had not been given spontaneously but was delivered nearly four months after being reserved. This indicated that the verdict was issued following careful deliberation and application of mind.

The bench further said that since the observations in question were “totally unknown to the tenets of law and depict total insensitivity and inhuman approach.”

It is worth noting that on March 24, a Supreme Court bench of Justices Bela Trivedi and Prasanna B Varale declined to entertain a public interest litigation (PIL) petition challenging the Allahabad High Court’s order.

How people reacted to the Allahabad HC ruling

The High Court’s ruling faced massive criticism from various quarters. Legal experts condemned the observation, calling for judicial restraint and warning that such remarks could further erode public trust in the judiciary.

Senior advocate and Supreme Court Bar Association president Kapil Sibal expressed his dismay on X, stating, “God save this country with such judges adorning the Bench! The Supreme Court has been too soft in dealing with errant judges (sic).”

Sibal later stated that high court judges should avoid making such statements, as they could “send wrong message to the society and people will lose faith in the judiciary.”

Senior advocate and former additional solicitor general of India, Pinky Anand, called for a “reawakening”.

She said, “Violators of the law and offenders against women and children cannot get away and the judgment clearly errs by ignoring this. I am sure that appropriate reversals would be made to such a judgment and justice will be done.”

Meanwhile, Union Minister Annapurna Devi strongly opposed the ruling and urged the Supreme Court to intervene.

“I am completely against this decision, and the Supreme Court should take serious note of it. Such a ruling has no place in a civilised society,” the Union Minister for Women and Child Development told news agency PTI.

With inputs from agencies