New Delhi

The Supreme Court on Wednesday stayed the Allahabad High Court judgment holding that grabbing breasts and breaking pyjama string was not enough for charge of attempt to rape. 

A Bench of Justices B.R. Gavai and A.G. Masih said that the impugned observations depict a total lack of sensitivity and inhumane approach on the part of the author of the judgment.

It recorded that the controversial ruling was not at the spur of the moment but delivered four months after reserving the order.

The Justice Gavai-led Bench issued notices to the Centre, Uttar Pradesh government and the parties before the Allahabad High Court, including the accused persons.

The apex court asked Attorney General (AG), R Venkataramani and Solicitor General (SG) Tushar Mehta to assist it in adjudication of the suo-moto case.

The matter will be heard next after two weeks, along with the Special Leave Petition filed by the victim’s mother.

The Supreme Court has registered a suo moto case titled ‘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’ following a letter from senior advocate Shobha Gupta, who urged the Chief Justice of India (CJI) to take cognisance of the observations made by a single-judge Bench of the Allahabad High Court while modifying a summoning order.

In its decision, a Bench of Justice Ram Manohar Narayan Mishra of the Allahabad HC altered the charges against the two accused, who were originally summoned by the trial court for commission of offences 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.

Partly allowing the revision plea of the accused persons, the Justice Mishra-led Bench of the Allahabad HC said that they are instead liable to be summoned for a minor offence under Sections 354(b) IPC i.e. assault or abuse of a woman with intent to disrobing or compelling her to be naked, read with Section 9/10 of the POCSO Act.

Under the POCSO Act, Section 9 provides punishment for aggravated sexual assault on a child victim, and Section 10 provides punishment with imprisonment up to seven years, which shall not be less than five years and shall also be liable to a fine.

According to prosecution version, two accused, namely Pawan and Akash, grabbed the breasts of the victim and one of them broke the string of her pyjama and tried to drag her beneath the culvert and in the meanwhile on interference of passersby/witnesses, the accused persons fled from the spot leaving the victim behind.

Saying that prima facie a charge of attempt to rape was not made out against the accused, the Allahabad High Court said, “There is no allegation that the accused tried to commit penetrative sexual assault against the victim. 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.”

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“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,” it added.

Interestingly, a coordinate Bench of Justices Bela Trivedi and Prasanna B Varale of the Supreme Court, on Monday, declined to entertain a public interest litigation filed against the March 17 ruling of the Allahabad HC.