- Saturday, March 22, 2025
The judge had ruled that actions like grabbing of breasts and breaking of string of a “pyjama” is not enough to charge a perpetrator with the offence of rape, or an attempt to rape
By: India Weekly
LEGAL experts on Friday (21) deplored the observation of the Allahabad High Court on what constitutes a rape charge, calling for a restraint by judges and underlining the drop in public confidence in the judiciary due to such statements.
The high court ruled that actions like grabbing of breasts and breaking of string of a “pyjama” or lowers of a woman is not enough to charge a perpetrator with the offence of rape, or an attempt to rape.
Senior advocate and Supreme Court Bar Association president Kapil Sibal took to X, saying, “God save this country with such judges adorning the Bench! The Supreme Court has been too soft in dealing with errant judges (sic).”
Sibal subsequently said judges, especially those from the high courts, should refrain from making such statements, as it would “send wrong message to the society and people will lose faith in the judiciary”.
“I think giving such controversial statement is improper, because in current time, whatever the judges say sends a message to the society. If the judges, especially those from the high courts, give such statements, it will send wrong message to the society and people will lose faith in the judiciary,” he said.
Senior advocate Vikas Pahwa said the interpretation of the Allahabad High Court appeared to set a concerning precedent by narrowly defining what constitutes an attempt to rape.
He said that the alleged actions of “grabbing breasts, pulling down the pajamas, and dragging the girl towards the culvert” strongly indicated an intent to commit rape, arguably surpassing mere preparation and entering the realm of attempt to rape.
“Decisions like this risk undermining public confidence in the judicial system’s commitment to protecting victims of sexual violence. They may also discourage survivors from coming forward, fearing that their experiences will be minimised or dismissed. It is imperative that the judiciary adopts a more victim-centric approach, ensuring that actions indicative of an intent to commit rape are appropriately recognised and prosecuted to uphold justice and deter potential offenders,” Pahwa said.
He further said that at the summoning stage, courts typically assess whether there is a prima facie case based on the allegations, without delving deeply into the evaluation of evidence.
“By re-evaluating the nature of the offense at this preliminary stage, the High Court may have overstepped, as such determinations are generally reserved for the trial phase,” he said.
Echoing his views, senior advocate P K Dubey said such an observation was not warranted.
“There is no place of personal views of a judge, and a judge must follow settled law and jurisprudence,” he said.
In the matters involving sexual offences the test is whether there is an expression of sexual desire in any form coupled with the fact that the act committed, caused injury to the person on whom the act was committed, he added.
“This constitutes a sexual act and one can be punished according to and penetration is not required which is held in various judgements. Mere touching the private part of victim is sufficient and amounts to rape,” Dubey said.
The 2021 case has an 11-year-old girl survivor from Uttar Pradesh’s Kasganj and involves two accused men.
Allahabad High Court bench of Justice Ram Manohar Narayan Mishra ruled mere grabbing of breasts and breaking of the string of a ‘pyjama’ do not amount to offence of rape, but such offence falls under the ambit of assault or use of criminal force against any woman with the intent to disrobe or compel her to be naked. (PTI)
