The Supreme Court of India on Wednesday (Mar 26) stayed the Allahabad High Court order in a case about child abuse as the judge had observed that the grabbing of breast and pulling the string of a pyjama don't amount to a rape attempt. Instead, the High Court had categorised the act as "aggravated sexual assault" under the POCSO Act, which carries a lesser penalty. 

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The Supreme Court said that it was pained to see the lack of sensitivity by the High Court judge who passed the order. It ordered, "We are at pains to state that it shows total lack of sensitivity on part of the author of the judgment." 

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"It (the order by High Court) was not even at the spur of the moment and was delivered four months after reserving the same. Thus, there was application of mind. We are usually hesitant to grant stay at this stage. But since observations in paragraphs 21, 24 and 26 is unknown to cannons of law and shows inhuman approach, we stay the observations in said paras," it added. 

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A bench of Justice Ram Manohar Narayan Mishra of the Allahabad HC, in its decision, altered the charges against the two accused, who were originally summoned by the trial court for the commission of offences 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. 

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The Supreme Court on Tuesday had registered a suo moto (on its own motion) case in the backdrop of the Allahabad HC judgment. A bench of Justices BR Gavai and AG Masih heard the suo moto case. 

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Solicitor General (SG) Tushar Mehta said there are enough reasons to stay the order. "Some judgments contains reasons for staying them. It has the same. Para 21,24,26," he said.

"It is a serious matter. 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," Justice Gavai stated. 

"Yes, I agree very serious. The way it was dealt with and said that it was mere preparation etc. The Chief justice of High Court as the master of roster should take some steps," the SG weighed in. 

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Allahabad High Court's order

Two accused, namely Pawan and Akash, grabbed the breasts of the victim and one of them broke the string of her pyjama and tried to drag her beneath the culvert. When passersby interfered, the accused fled away from the spot leaving the victim behind. 

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The Allahabad High Court said, “There is no allegation that accused tried to commit penetrative sexual assault against the victim. 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." 

It said that prima facie a charge of attempt to rape was not made out against the accused. 

(With inputs from agencies)