Supreme Court: While considering the instant suo motu petition concerning the recent decision of Allahabad High Court, whereby it had held that grabbing breasts and breaking minor’s pajama string is not attempt to rape, but ‘aggravated sexual assault; the Division Bench of B.R. Gavai and Augustine George Masih, JJ., on 26-3-2025, put a stay on the impugned decision.
The Court pointing out the specific paragraphs of the controversial decision, said that the impugned decision of the High Court displays lack of sensitivity.
The Court also sought a response from the Centre, Uttar Pradesh Government and also, sought the assistance of Solicitor General Tushar Mehta and Attorney General R Venkataramani.
Background:
On 17-3-2025, the single judge bench of Ram Manohar Narayan Mishra, J. in Akash v. State of U.P., 2025 SCC OnLine All 1476, while modifying the summoning order passed by Special Judge against the accused persons, held that mere fact that accused 1 and 2 grabbed the breasts of the victim and one of them broke the string of her pajama and tried to drag her beneath the culvert and in the meanwhile on interference of passersby the accused persons fled away from the spot leaving the victim behind, is not sufficient to hold that a case of Section 376, 511 of the IPC or Section 376 of the IPC read with Section 18 of the POCSO Act has been made out against the accused persons.
The Court highlighted that there is no allegation in the complaint or in the statement of the witnesses recorded under Sections 200/202 of the CrPC that accused 1 himself got unrest after breaking the string of lower garment of the minor victim. The specific allegation against accused 1 is that he tried to drag the victim beneath the culvert and broke the string of her pajama. It is also not stated by witnesses that due to this act of the accused the victim got naked or got undressed. There is no allegation that accused tried to commit penetrative sexual assault against the victim.
The Court held that the allegations levelled against the accused 1 and 2 and facts of the case hardly constitute an offence of attempt to rape in the case. 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. The Court emphasised that on facts of the case a prima facie charge of attempt to rape is not made out against the accused 1 and 2 and instead they are liable to be summoned for minor charge of Section 354(b) of the IPC i.e. assault or abuse a woman with intent to disrobing or compelling her to be naked and Section 9 of the POCSO Act, which provides punishment for aggravated sexual assault on a child victim.
The Supreme Court had taken suo motu cognizance of the matter after an NGO ‘We the Women of India’ approached the Court against the impugned decision.
[In re: Order Dated 17.03.2025 Passed by the High Court of Judicature at Allahabad in Criminal Revision No. 1449/2024 and Ancillary Issues, SMW(Crl) No. 000001 / 2025, decided on 26-3-2025]
Source: Press
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Can I get the judgment in the suo moto cognizance by the supreme court in this very matter