New Delhi: The Supreme Court on Wednesday stayed the controversial order of Allahabad High Court which stated that grabbing the breast of a minor and breaking the string of her pyjama does not constitute as rape. The apex court said that the order was shocking and is considering exercising suo motu jurisdiction against the High Court. 

"We are at pains to say that some of the observations made in the impugned judgment depict a total lack of sensitivity on the part of the author of the judgment," the court said. 

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The Supreme Court bench comprising Justice BR Gavai and Justice AG Masih, stayed the order stating that the observations made by the High Court are "totally unknown to the tenets of law and depict total insensitivity and inhuman approach". The court also issued a notice to the Central Government and the Uttar Pradesh government seeking their reply. 

The High Court made the controversial remarks while considering a petition moved by the accused challenging the lower court's order to summon them under the Protection of Children from Sexual Offences Act (POCSO). The accused, Pawan and Akash, grabbed the breasts of the 11-year-old victim, and one of them broke the string of her pyjama and tried to drag her beneath the culvert.

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The Allahabad High Court directed that the accused be tried under the minor charge of Section 354-B IPC (assault or use of criminal force with intent to disrobe) read with Sections 9/10 of the POCSO Act (aggravated sexual assault).

“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. 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,” the High Court bench of Justice Ram Manohar Narayan Mishra observed.

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(With LiveLaw inputs)

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