In a major respite for women rights, the Supreme Court of India has stayed the Allahabad High Court’s controversial order which garnered nationwide condemnation. The controversial HC order held, “Grabbing a minor victim’s breasts, breaking the string of her pyjama and attempting to drag her beneath a culvert” do not constitute the offence of rape or attempt to rape. After initiating a suo moto case on Tuesday, the apex court has now stayed the order noting that it showed lack of sensitivity on the part of the High Court judge who passed the same. The SC bench added, “it was not a spur of the moment order”.
For several days, the High Court’s bizarre order on the offence of rape/attempt to rape had triggered animated reactions from people of all walks of life. Several Parliamentarians including Union Minister for Women and Child Development Annapurna Devi had slammed the Allahabad HC’s ruling. They also urged the apex court to intervene in this matter, which had initially rejected it.
Slamming the HC ruling, Union Minister Annapurna Devi said, “I am completely against this decision and the Supreme Court should take serious note of it. Such a ruling has no place in a civilized society.”
SC stays Allahabad HC’s ruling on ‘attempt to rape’: Details of court proceedings
After initiating a suo moto case, the Supreme Court bench of Justices BR Gavai and Augustine George Masih stayed the High Court order. The judgement was brought to the notice of the apex court by an organisation named ‘We the Women of India’.
While staying the controversial observations, the Court ordered, “We are at pains to state that it shows total lack of sensitivity on part of the author of the judgment. It (the order by High Court) was not even at the spur of the moment and was delivered four months after reserving the same. Thus, there was application of mind. We are usually hesitant to grant stay at this stage. But since observations in paragraphs 21, 24 and 26 is unknown to cannons of law and shows inhuman approach, we stay the observations in said paras.”
Concurring with the SC bench, Solicitor General (SG) Tushar Mehta said there are enough reasons to stay the order. He said, “Some judgments contains reasons for staying them. It has the same. Para 21,24,26.”
During today’s proceedings, Justice Gavai stated, “It is a serious matter. Total insensitiveness on part of the judge. This was at the stage of issuing summons! We are sorry to use such harsh words against the judge.”
The SG intervened saying, “Yes, I agree very serious. The way it was dealt with and said that it was mere preparation etc. The Chief justice of High Court as the master of roster should take some steps.”
Subsequently, the bench sought responses from the Central government and the UP government on the matter as well as the assistance of Attorney General (AG) R Venkataramani and SG Tushar Mehta.
Afterwards, the Court directed, “We issue notice to Union government, State of UP and parties before the High Court. The learned AG and SG shall assist the court.”
The Court also tagged the plea filed by the mother of the child-victim against the order with its suo motu case, both of them will now be heard together.
Strikingly, on 24th March, a Supreme Court Bench of Justices Bela Trivedi and Prasanna B Varale had rejected a PIL filed against that Allahabad High Court order which was delivered on 17th March as it was modifying a summoning order.
Earlier, the Allahabad High Court had altered the charges against the two accused originally summoned to stand trial under Section 376 IPC (Rape) and Section 18 (Punishment for attempt to commit an offence) of the Protection of Children from Sexual Offences (POCSO) Act. Rather the HC directed that the accused be tried under the lesser charge of 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).
While altering the charges, Justice Ram Manohar Narayan Mishra observed, “…the allegation against accused Pawan and Akash is that they grabbed the breasts of the victim and Akash tried to bring down 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 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 trial court had found it to be a case of attempted rape or attempted penetrative sexual assault under the POCSO Act and thus invoked Section 376 as well as Section 18 of the POCSO Act. It also issued a summoning order under these provisions.
The accused then approached the High Court to challenge the summoning order. Before the High Court, they argued that even if the complaint’s version is accepted at face value, no offence of rape was made out. According to their argument, the case fell within the scope of Sections 354 (assault with intent to outrage modesty of woman) and 354(B) IPC, along with relevant provisions of the POCSO Act.
However, the complainant’s counsel noted that at the stage of framing charges, the trial court is not required to meticulously analyse or weigh the evidence collected during the investigation. It was also contended that instead of it, the trial court only needed to determine whether a prima facie case exists to proceed with the trial.
During its proceedings, the High Court observed that there was no material on record to suggest that the accused had a determined intent to commit rape on the victim.
It further noted that neither the complaint nor the witnesses alleged that the accused Akash himself became unsettled after he broke the string of the minor victim’s lower garment.
The HC order stated, “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 stated that the allegations hardly constitute an offence of attempt to rape in the case adding, “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.”
Consequently, the High Court altered the trial court’s summoning and directed the lower court to issue a fresh summoning order under the revised sections.
