"Shocking": Supreme Court stays Allahabad High Court’s controversial order 'grabbing breasts of minor girl, breaking her pyjama string is not attempt to rape'

New Delhi: The Supreme Court on Wednesday stayed the controversial order of the Allahabad High Court, which ruled that acts such as grabbing the breasts of a minor girl, breaking the string of her pyjama, and attempting to drag her beneath a culvert do not amount to the offence of attempt to rape.

The High Court had observed that such acts would, prima facie, constitute the offence of 'aggravated sexual assault' under the Protection of Children from Sexual Offences (POCSO) Act, which carries a lesser punishment.

A bench comprising Justice B.R. Gavai and Justice A.G. Masih, while considering a suo motu case against the High Court’s order, expressed strong disagreement with its findings, calling the ruling "shocking."

Solicitor General (SG) Tushar Mehta stated that some judgments contain reasons for staying them, and this case was one of them, citing paragraphs 21, 24, and 26 of the High Court’s judgment.

Justice B.R. Gavai remarked, "It is a serious matter. There is total insensitivity on the part of the judge. This was at the stage of issuing summons! We are sorry to use such harsh words against the judge."

SG Mehta concurred, stating that the way the matter was handled was extremely serious and suggested that the Chief Justice of the High Court should take steps as the master of the roster.

Justice Gavai further observed that although the Supreme Court is usually hesitant to grant a stay at this stage, the observations made in paragraphs 21, 24, and 26 of the High Court order were contrary to the tenets of law and exhibited an inhuman approach.

The bench ordered a stay on these observations and issued notices to the Union of India, the State of Uttar Pradesh, and the parties involved in the High Court proceedings.

Tushar Mehta denounced the judgment, saying that it was shocking.

The case reached the Supreme Court after Senior Advocate Shobha Gupta, representing the NGO 'We the Women of India', wrote a letter highlighting the controversial ruling.

The Court said that the NGO 'We the Women of India' brought to our notice that some observations by the single judge of the Allahabad High Court in the judgment passed on March 17, 2025, show a total lack of sensitivity on the part of the author of the judgment.

According to the prosecution, the accused, Pawan and Akash, allegedly assaulted the 11-year-old victim. Akash reportedly broke the string of her pyjama and attempted to drag her beneath a culvert.

The trial court initially charged the accused under Section 376 (rape) read with Section 18 (attempt to commit an offence) of the POCSO Act and issued a summoning order.

However, the High Court downgraded the charges, directing that the accused be tried under Section 354-B IPC (assault or use of criminal force with intent to disrobe) along with Sections 9/10 of the POCSO Act (aggravated sexual assault). This decision triggered widespread public criticism.

The High Court distinguished between preparation and attempt in its ruling, stating, "The allegations levelled against the accused Pawan and Akash and the facts of the case hardly constitute an offence of attempt to rape.

To establish an attempt to rape, the prosecution must prove that the act had gone beyond preparation. The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination." The judgment was delivered by Justice Ram Manohar Narayan Mishra, who partially allowed the criminal revision plea filed by the accused.

"We are at pains to say that some of the observations made in the said judgment, Justice Gavai said, it depicts 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.

It is noteworthy that a separate Supreme Court bench, comprising Justices Bela M. Trivedi and P.B. Varale, had recently dismissed an Article 32 writ petition challenging the same High Court order on grounds of locus standi.