SC sets aside Allahabad HC observation that grabbing minor's breasts not attempt to rape; orders panel to draft sensitivity guidelines for judges

The Supreme Court has set aside the controversial Allahabad High Court order which had held that acts of grabbing a child 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.

A Bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and NV Anjaria underlined that adjudication in sexual offence matters must be rooted not only in law but also in empathy.

“We cannot agree with the finding of the High Court that the allegations only amount to preparation, but not an attempt, towards the commission of the offence of rape,” the Court ruled.

In its judgment delivered on February 10, the Bench cautioned that courts cannot deliver “complete justice” if they are “inconsiderate” to the vulnerabilities of litigants.

“Our decisions as participants in the legal process, from laying down the procedure that shall have to be faced by common citizens to the final judgment passed in any given case, must reflect the ethos of compassion, humanity, and understanding, which are essential for creating a fair and effective justice system," the Court said.

It also conceded that there is need for systemic correction and for steps to be taken to inculcate sensitivity among judges.

"There is no doubt that some action is required to be taken to inculcate and nurture an inherent sensitivity and discernment into the approach of members of the judiciary, as well as into the accompanying court procedures.”

The Allahabad High Court had made the controversial observations on March 17, 2025 while modifying a summoning order against two accused persons.

According to the prosecution, the accused, Pawan and Akash, allegedly grabbed the breasts of the 11-year-old victim. Thereafter, one of them broke the string of her pyjama and attempted to drag her beneath a culvert.

However, 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 (rape) along with Section 18 of the POCSO Act and issued a summoning order under these provisions.

The High Court altered the charges against the two accused and instead 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).

While doing so, 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 High Court also observed that there was no material on record to suggest that the accused had a determined intent to commit rape on the victim. It also noted that neither the complaint nor the statements of witnesses contained any allegation that the accused Akash himself became unsettled after breaking the string of the minor victim’s lower garment.

The Supreme Court later took suo motu cognizance of the order and stayed it on March 26, 2025.

In its final verdict delivered on February 10, the top court declined to frame any guidelines to govern judges.

"We are hesitant to undertake, at this stage, a fresh and unguided attempt to lay down any guidelines, without the benefit of a comprehensive understanding of the past endeavours of such nature undertaken by the different Constitutional and statutory bodies, the on-ground results of such efforts, and the varying scope of problems faced by victims and complainants in similarly sensitive cases," stated the top court.

Instead, it requested the National Judicial Academy (NJA) at Bhopal to constitute a committee of experts to prepare a report on 'Developing Guidelines to Inculcate Sensitivity and Compassion into Judges and Judicial Processes in the Context of Sexual Offences and other Vulnerable Cases'.

The committee was also asked to frame 'Draft Guidelines for the Approach of Judges and the Judicial System When Dealing with Cases of Sexual Offences and other Similarly Sensitive Occurrences Involving Vulnerable Victims, Complainants, and/or Witnesses.'

The NJA report should keep linguistic diversity in mind and the draft guidelines should be in simple language comprehensible to laypersons, the Court further directed.

"The guidelines, we expect, will not be loaded with heavy, complicated expressions borne from foreign languages and jurisdictions,” the Court said.

The committee was asked to submit its report “preferably within three months.”

[Read Judgment]