Supreme Court takes suo motu cognisance against Allahabad HC’s ‘not rape’ comment, two-judge bench to hear matter today

The Supreme Court will today hear its suo motu case on a controversial Allahabad High Court order on what constitutes a charge of rape. A bench comprising Justice BR Gavai and Justice Augustine George Masih is set to preside over the matter.

The apex court on Tuesday took suo motu cognisance of the Allahabad High Court's ruling, a day after it dismissed a public interest litigation (PIL) filed against the statement.

A heated debate has been going on across the country after a judge of the Allahabad High Court observed that “mere” grabbing the breasts of a minor and pulling the string of her pyjama does not amount to the offence of rape or an attempt to rape. The statement caused widespread backlash, with political leaders and legal experts expressing their unhappiness regarding the same.

Legal experts had deplored the observation of the Allahabad High Court on what constitutes a rape charge, calling for restraint by judges and underlining the drop in public confidence in the judiciary due to such statements.

Following the backlash, the Supreme Court took note of the matter and registered a suo motu case.

Supreme Court dismissed plea

The suo motu case comes days after the Supreme Court refused to hear a public interest litigation (PIL) filed against the statement, seeking to issue an order to remove the controversial comment from the judgment.

The plea also demanded that the apex court issue guidelines to prevent judges from making such controversial remarks in the future.

What did Allahabad HC judge say on rape?

On March 17, the Allahabad High Court ruled that “mere” grabbing the breasts of a minor and pulling the string of her pyjama does not amount to the offence of rape or an attempt to rape. However, such offence falls under the ambit of assault or use of criminal force against any woman with the intent to disrobe or compel her to be naked.

The court noted that this fact “is not sufficient to draw an inference that the accused persons had determined to commit rape on the victim as apart from these facts no other act is attributed to them to further their alleged desire to commit rape on the victim”.

The court observed that there was no material on record to suggest that the accused had a determined intent to commit rape on the victim.

The order was passed by Justice Ram Manohar Narayan Mishra on a revision petition filed by two persons who moved the court, challenging the order of a Special Judge of Kasganj by which the court had summoned them under Section 376 of IPC apart from other sections.

According to facts of the case, an application was moved before the court of Special Judge, POCSO Act, alleging that around 5:00 pm on November 10, 2021, the informant was returning from the home of her sister-in-law along with her minor daughter, aged about 14 years.

Accused Pawan, Akash and Ashok, who were from her village, saw her on the way on a muddy road and asked where she was coming from. When she replied she was coming from her sister-in-law's place, Pawan offered a lift to her daughter, assuring her that he would drop her at her residence.

Relying on his assurance, she permitted her daughter to accompany him on his motorcycle.

The accused persons stopped their motorcycle on the muddy way to her village and started grabbing her breasts. Akash dragged her and tried to take her beneath the culvert and pulled the string of her pyjama.

Two persons reached the spot on hearing the cries of the minor girl. The accused persons threatened them by pointing a country-made pistol and fled the scene. After recording the statement of the victim and the witnesses, the court summoned the accused.

After going through the materials on record, the court found, “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.”

“This fact is not sufficient to draw an inference that the accused persons had determined to commit rape on the victim as apart from these facts no other act is attributed to them to further their alleged desire to commit rape on the victim,” it added.

The court further noted that the specific allegation against accused Akash was that he tried to drag the victim beneath the culvert and pulled the string of her pyjama. It is also not stated by the witnesses that the victim got naked or undressed due to this act of the accused, the court said.

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

It said the allegations made against the accused Pawan and Akash and the facts of the case barely 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, it said.

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

The court further said, “On facts of the case a 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.”

(With inputs from PTI)