New Delhi: “We are at pains to state that it shows total lack of sensitivity on part of the author of the judgment,” the Supreme Court said Wednesday, while staying parts of the Allahabad High Court order that held grabbing breasts and breaking the strings of the girl’s pyjamas while dragging her under a culvert were not sufficient to hold the charges of rape or attempt to rape.
A bench led by Justice B.R. Gavai noted in its brief stay order that the 17 March judgment of the HC showed lack of “application of mind” by the judge.
“It was not even at the spur of the moment and was delivered four months after reserving the same. Thus, there was no application of mind,” the bench noted in the order.
The order said that usually courts are “hesitant” to grant stay at this stage, but since observations in three paragraphs of the HC ruling—21, 24 and 26—were, in SC’s view, “unknown to cannons of law and shows insensitive and inhuman approach”, the court said it was inclined to stay them.
The bench issued a notice to the Centre and Uttar Pradesh government, as it requested the assistance of the Attorney General and Solicitor General of India in the matter.
At the behest of Solicitor General Tushar Mehta, the bench also asked the Supreme Court registrar to share its order with the HC registrar so that it can be brought to the notice of Allahabad HC Chief Justice. The bench left it to the Chief Justice of the HC to take appropriate steps on the administrative side, which means to change the roster of the HC judge who delivered the verdict.
The top court’s order came on a suo-motu cognizance case that was registered Tuesday following a letter written to the Chief Justice of India Sanjiv Khanna by senior advocate Shobha Gupta, drawing his attention to the controversial HC order.
Importantly, the case was registered days after another bench dismissed an appeal filed by a third party, questioning the HC judgment.
While modifying a trial court order that summoned two men for attempt to rape, 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 HC had altered the charges against the accused and directed that they 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).
On Wednesday, when the hearing commenced, Solicitor General Mehta expressed his strong reservations against the three objectionable paragraphs that elaborate the reason for lowering the charges against the accused.
Before he could argue further, Justice Gavai called it a serious matter.
“This is 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,” he said.
Mehta voiced similar concern. “Yes, I agree l, it’s very serious. The way it was dealt with and said that it was mere preparation etc. The Chief justice of HC, as master of roster, should take some steps,” he said.
The HC order was on a petition filed by the accused, challenging the summons issued to them by the Special Judge of the POCSO court in Kasganj to face trial in a rape case.
In June 2023, the Kasganj POCSO court, acting on an application filed by the mother of a girl, had issued summons to two youths, who are cousins, to face trial on charges of rape and rape attempt. The court had also summoned the father of one of the youths who was charged with criminal intimidation. In January 2022, a woman had filed an application in the Kasganj POCSO court seeking direction to the police to register an FIR against three men for rape and criminal intimidation.
(Edited by Zinnia Ray Chaudhuri)
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