The Supreme Court on Wednesday stayed the March 17 order of the Allahabad High Court, which held that grabbing the breasts of a minor girl, breaking the string of her pyjama and trying to drag her beneath a culvert, did not constitute the offence of rape or attempt to rape.
The Bench of Justice B.R. Gavai and Justice AG Masih passed the verdict while hearing a suo motu 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,’ initiated by the Apex Court on Tuesday.
The controversial verdict was delivered by the single-judge Bench of Justice Ram Manohar Narayan Mishra on March 17, while modifying a summoning order.
Justice Mishra altered the charges against the two accused, who were originally summoned to stand trial under Section 376 (rape) of the Indian Penal Code (IPC) and Section 18 (punishment for attempt to commit an offence) of the Protection of Children from Sexual Offences (POCSO) Act.
The High Court 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).
The prosecution said that the accused, Pawan and Akash, allegedly grabbed the breasts of the 11-year-old victim. One of them then broke the string of her pyjama and attempted to drag her beneath a culvert. Before they could proceed further, the intervention of passers-by forced them to flee, leaving the victim behind.
Finding it to be a case of attempted rape or attempted penetrative sexual assault under the POCSO Act, the trial court invoked Section 376 along with Section 18 of the POCSO Act and issued a summoning order under these provisions.
Challenging the summoning order, the accused approached the High Court, arguing that even if the complaint’s version was accepted at face value, no offence of rape was made out. They contended that the case, at most, 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.
The Counsel representing the complainant argued that at the stage of framing charges, the trial court was not required to meticulously analyse or weigh the evidence collected during the investigation. Instead, it only needed to determine whether a prima facie case existed to proceed with the trial, it was contended.
Justice Mishra observed that there were no facts or material on record to suggest that the accused had a determined intent to commit rape on the victim.
Neither the complaint nor the statements of witnesses contained any allegation that accused Akash himself became unsettled after breaking the string of the minor victim’s lower garment, added the High Court.
The single-judge Bench further noted that the witnesses did not state that due to this act of the accused, the victim got naked or undressed. There was no allegation that the accused tried to commit penetrative sexual assault against the victim, it added.
Justice Mishra said that 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 consisted chiefly in the greater degree of determination.
Noting that the allegations hardly constituted an offence of attempt to rape in the case, the High Court modified the summoning verdict and directed the lower court to issue a fresh order under the revised sections.
On March 24, the Bench of Justice Bela Trivedi and Justice Prasanna B Varale had refused to entertain a public interest litigation (PIL) filed under Article 32 against the same High Court order.
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