The Supreme Court on Tuesday cautioned judges against making inappropriate observations in cases involving sexual violence against women (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).
A Bench of Justices BR Gavai and Augustine George Masih took exception to a recent observation by the Allahabad High Court that the woman herself had invited trouble and was responsible for the alleged rape committed against her.
Justice Sanjay Kumar Singh of the High Court
had made this comment on March 11 while granting bail to an accused who was arrested in December 2024 for alleged rape of a woman he had met at a bar in Hauz Khas, Delhi.
The Supreme Court today said that while grant of bail is the discretion of the judge depending on the facts of each case, such unwarranted observations against the complainant should be avoided.
"There is another order now by another judge. Yes bail can be granted. But what is this discussion that 'she herself invited trouble etc'. One has to be careful when saying such things especially on this side (judges)," Justice Gavai remarked.
"Complete justice should not only be done but also seen to be done. How a common person perceives such orders will also have to be seen," said Solicitor General Tushar Mehta.
The top court made the observation while hearing a
suo motu case initiated by it in relation to another case in which the Allahabad High Court 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
The Court had taken up the matter suo motu after the judgment was brought to the notice of Court by an organisation 'We the Women of India'.
The apex court had on March 26
stayed the High Court order after finding that the order reflected lack of sensitivity on the part of the High Court judge who passed the same and it was not a spur of the moment order.
It had also sought responses from the Central government and the Uttar Pradesh (UP) government on the matter and also sought the assistance of Attorney General (AG) R Venkataramani and SG Tushar Mehta.
When the matter was taken up today, the Court deferred the hearing by four weeks.
"Let the case be listed after 4 weeks. Let service on respondents be completed," the Bench directed.
The High Court had altered the charges against the two accused, who were originally summoned to stand trial 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.
The High Court instead 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).
While doing so, Justice Ram Manohar Narayan Mishra had 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 allegations hardly constitute an offence of attempt to rape in the case, the High Court had said.
"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."
As a result, the summoning order was modified, and the lower court was directed to issue a fresh summoning order under the revised sections.
This led to the Supreme Court taking up the matter suo motu.
