This decision sparked significant public outrage, with legal fraternity and child rights activists criticising the ruling as a gross misinterpretation of sexual offence laws. The Supreme Court, acknowledging the gravity of the issue, intervened suo moto. Hearing the suo-moto case, a bench comprising Justices B.R. Gavai and A.G. Masih strongly rebuked the High Court’s observations, terming them “shocking” and indicative of a “complete lack of sensitivity” in the judicial reasoning.

Supreme Court’s observations

The Supreme Court took particular exception to the rationale of the High Court, noting that the judgment was not issued in haste but was delivered after being reserved for nearly four months. This indicated that the judge had ample time to consider the legal implications, making the insensitivity of the judgment even more alarming. The bench specifically pointed out paragraphs 21, 24, and 26 of the judgment, stating that they reflected an “inhuman approach” and a complete departure from established legal principles. Consequently, the Supreme Court stayed these observations and issued notices to the Union of India, the State of Uttar Pradesh, and other parties involved in the proceedings before the High Court.

For reference, following are the mentioned paras from the judgment of the High Court:

“21. In the present case, 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.”

“24. 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. 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.”

“26. After giving a thoughtful consideration and meticulous examination of the facts of the case, this court is of the considered opinion that mere fact that according to prosecution version two accused Pawan and Akash grabbed the breasts of the victim and one of them namely Akash broke the string of her pyjama and tried to drag her beneath the culvert and in the meanwhile on interference of passersby/witnesses the accused persons fled away from the spot leaving the victim behind, is not sufficient to hold that a case of Section 376, 511 IPC or Section 376 IPC read with Section 18 of POCSO Act has been made out against the accused persons.”

Solicitor General of India, Tushar Mehta, also appeared before the Supreme Court and condemned the High Court’s judgment, calling it “disturbing” and “untenable.” The court took cognisance of the case based on a letter submitted by Senior Advocate Shobha Gupta on behalf of the NGO ‘We the Women of India,’ highlighting the potential ramifications of such a ruling on child safety jurisprudence.

Facts of the case and High Court’s ruling

According to the prosecution, the accused persons, Pawan and Akash, assaulted an 11-year-old girl by grabbing her breasts, breaking the string of her pyjama, and attempting to drag her beneath a culvert. The trial court, considering this a case of attempt to rape or attempt to commit penetrative sexual assault, invoked Section 376 of the IPC along with Section 18 of the POCSO Act and issued a summoning order under these provisions.

However, when the accused challenged the summoning order before the Allahabad High Court, the single-judge bench presided over by Justice Ram Manohar Narayan Mishra ruled that the allegations did not meet the threshold for attempt to rape. The court made a legally questionable distinction between preparation and attempt, arguing that the prosecution had not established that the accused had moved beyond the stage of preparation towards committing the offence. Instead, the High Court directed that the accused be tried under the lesser offence of Section 354-B IPC (assault or use of criminal force with intent to disrobe) along with Sections 9 and 10 of the POCSO Act, which deal with aggravated sexual assault.

The High Court’s ruling has been widely condemned for its regressive and flawed interpretation of sexual violence laws. By holding that a greater degree of determination was required to establish an attempt to rape, the court demonstrated an outdated and restrictive understanding of sexual crimes. The ruling also suggested that unless complete disrobing or a near-penetrative act occurred, the offence of attempt to rape could not be established. Such an interpretation ignores decades of legal evolution, including Supreme Court judgments that have recognised a broader and more victim-centred approach to defining sexual violence.

Furthermore, the judgment was riddled with factual inconsistencies regarding the victim’s age. While at one point, the High Court referred to her as 14 years old, in another instance, it described her as “older than 11 years.” However, since the court invoked Section 9(m) of the POCSO Act—applicable in cases where the victim is below 12 years—it can be inferred that the court assumed the victim to be between 11 and 12 years old. This lack of clarity raises concerns about the judicial application of key statutory provisions.

More concerning was the High Court’s failure to consider the victim’s psychological trauma and the terror she must have experienced during the attack. Legal experts have pointed out that the court’s approach was not just legally unsound but also deeply insensitive to the lived realities of sexual violence survivors.

The judgment of the HC may be read below.

Previous dismissal of writ petition challenging the High Court order

In a separate but related development, the Supreme Court had on March 25 dismissed a writ petition filed under Article 32 of the Constitution, which sought to challenge the Allahabad High Court’s ruling. The petition was filed by an unrelated third party who was not part of the original criminal proceedings. A bench comprising Justices Bela M. Trivedi and P.B. Varale ruled that such a challenge should have been filed as a Special Leave Petition (SLP) under Article 136, rather than as a writ petition under Article 32.

During the hearing, an advocate appearing for the petitioner attempted to invoke the government’s “Beti Bachao, Beti Padhao” campaign to highlight the case’s broader significance. However, Justice Trivedi immediately interjected, stating that “lecture baazi” (sermonising) would not be entertained in court. She also questioned the absence of the Advocate on Record (AOR) and the petitioner. Following these observations, the court summarily dismissed the writ petition, reinforcing the view that procedural technicalities should not be bypassed in challenging judicial orders.

Implications of the Supreme Court’s intervention

The Supreme Court’s decision to stay the Allahabad High Court’s order is a necessary and urgent corrective measure for several reasons:

1. Judicial accountability: The Supreme Court’s intervention underscores the need for High Courts to exercise sensitivity when adjudicating sexual offence cases. Judges must be held accountable for legal interpretations that dilute the protections granted to victims.
2. Gender justice: The ruling highlights the persistent challenges in ensuring a gender-sensitive legal system. The High Court’s flawed reasoning reflects a need for continuous judicial training on laws related to sexual violence.
3. Legal precedent: By staying the High Court’s order, the Supreme Court has signalled that outdated and restrictive interpretations of sexual offences will not be allowed to shape legal discourse.
4. Child protection: The judgment serves as a reminder that courts must prioritise the best interests of children in cases of sexual violence, rather than engaging in overly technical distinctions that undermine victim/survivor rights.

This case is a stark reminder that while legal statutes provide a framework for justice, the judiciary’s interpretation of these laws plays a crucial role in determining whether justice is truly served. The Supreme Court’s intervention reassures the public that regressive judicial reasoning will not be allowed to weaken protections for survivors of sexual assault.

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The post Supreme Court intervenes in POCSO case, stays Allahabad HC’s “shocking” judgment that downplayed sexual assault against minor appeared first on SabrangIndia.

The judgement has erroneously overlooked the fact that a man entered into a sexual relationship with the complainant on the false promise of marriage and even after he married someone else, he continued having sexual intercourse with her which clearly shows that he had mala fide intentions of just using the complainant for his sexual endeavours and had no intention of taking the relationship further.

The judgement is erroneous as it overlooks the fact that despite the marriage of the applicant he continued his relationship with the complainant without considering the fact of whether that (continued) relationship where the consent of complainant was taken had been made on ground of promising to divorce his wife and marrying the complainant. A finding that a section of the law is being misused, when rules related to “promises”, false or otherwise are not clearly defined, is loaded against the woman within such a relationship.

The Supreme Court has clearly opined that prerogative of section 90 IPC which defines consent is also applicable to section 376 IPC where the mere lack of evidence cannot be deemed as a ground for exemption from the offence committed.

The question as to whether rape was committed or not in cases where false promises have been made to marry goes to the heart of the question of knowledge and mala fide intention. This can be traced from the start when a couple in a consensual relationship together and thereafter one of them (the applicant before the High Court in this case) marries another (woman), still continues his liaison with the complainant. This establishes the fact of a mala fide intention as well as cheating under section 417 IPC. The judgement appears to clearly overlook certain principles of law.

Striking down a woman’s claims thus is also a case of judicial overreach when official data as provided by National Crime Records Bureau provides that only 8% of the reported rape cases are false.

It is important to know that in various judgements across the country there have been similar cases where the judges have taken deeply probing approach before delivering a verdict,

In recent times, with a decisive call for imbibing gender pro-active jurisprudential approaches have been evident in the words of renowned justices CJI Chandrachud and AK Sikri, such a verdict stands in stark contrast.

Such an attitude emanating from the higher judiciary when societal and familial struggles of women and sexual minorities for both equity and justice, hinders and obstructs the battle for emancipatory jurisprudence befitting the 21^st century further.

Already, women who report sexual offences do so displaying firm autonomy and dignity but risking stigma.

As worrying, is the prevalent principle within the judiciary, that of res judicata, (the principle that a cause of action may not be re-litigated once it has been judged on the merits). Such verdicts as the one under discussion here often do not stand out as aberrations but influence the judiciary to follow the trend. The fallacious conclusions drawn by the higher judiciary in general related to both Sections 498A (domestic violence) and 376 (sexual assault) is that most or many complaints are false or the recourse that women take to seek retribution from men. Little needs to be said how harmful this jurisprudential trend is, rendering women offenders not victims, further imprinting a prevalent patriarchal mind set.

Such a notion has got recent backing from data published by Delhi Commission for Women that reported that 52.5% of the total rape cases reported in the state are “false”. The fact that women, who are victims of sexual assault often take back complaints even after the suspect had been identified, is a phenomenon, not only confined to India but also in developed nations like the United Kingdom (where in the year 2020 over 57% of the rape cases were withdrawn bh the victims). Reasons are an intimidating and insensitive official system, not the fault of women. Only because the law is open to misuse due to a large grey area left within the statute books, couples who live their lives with mixed attitudes to gender exploitation and violence within society and family, must not dub possible offences as false or motivated. In the year 2020 commonwealth human rights initiative (CHRI) and association for advocacy and legal initiatives (AALI) conducted a report investigation in 14 districts in the state after the case of rape and murder of a Dalit girl in Uttar Pradesh. The report has raised certain vital questions about the role of police in delaying and denying justice by forcing the victims to compromise and take back the matters by threatening them for their social image, by accusing the victims of filing fake rape cases without even an investigation. The report can be read https://cjp.org.in/up-police-adding-to-trauma-of-rape-survivors/   The report provides with the extensive profound information and answers to the decline in rape reports and victims taking their complaints back.

It is also important to know that one out of every three women suffer or have suffered domestic violence in India reveal reports of National Family Health Survey (NFHS). Various independent studies conducted in India have brought to light the fact that 50%-80% of women have suffered some form of public sexual harassment. From this, it can be opined that most of such crimes go unreported or are taken back by the complainant due to pressure from family or the societal maxim,“Logon ko Pata Chalega Humari Izzat Gir Jayegi” (People will come to know and our self-respect will be diminished).

Misogynist comments of influential people (including judges) can prove to be fatal because women who have really been through crimes and are unable to muster “required evidence or facts” in court somehow lose the legal battle, become further prey of social injustice. This strengthens the inevitable cycle of exposing women who do take steps, restricts further reports and legal battles, in a country where overall violence against women is sky high. These “facts” are often used by Judges and some men rights activist — misinterpreting withdrawal of cases or police complaints –belying the reality behind such withdrawals. Just because a matter has been taken back by a woman does not mean that the offence against her was not committed or the case was false; there are serious reasons behind such intimidation that leads to the withdrawal  of the cases.

There have been judgements where similar questions have been raised:

In the year 2007, in Pradeep Kumar v. State of Bihar[1], the Supreme Court decided that the term ‘misconception of fact’ defined under Section 90 of IPC is broad enough to include all cases pertaining to misrepresentation of facts, deceit, fraud,  etc. to which consent is given. Further, Section 3 of the Indian Evidence Act, of 1872 also provides for ‘intention’ to be treated as fact. Thus, if the intention of promising marriage is to deceive a female into establishing sexual intercourse, it will be treated as being used against her will.

In Deelip Singh v. State of Bihar[2] in the year 2004, the Supreme Court held that consent taken from the prosecutrix would be vitiated if it was obtained on the pretext of a false promise of marriage by the accused.

The Supreme Court of India in State of Uttar Pradesh vs Naushad (2013) 16 SCC 651 had affirmed the law and held that where the promise to marry is false and the intention of the accused at the time of making the promise was not to abide by it but to deceive the victim to obtain her consent for sexual intercourse, there is a misconception of fact within the meaning of Section 90 that vitiates the woman’s consent.

More recently, in 2019, in the case of Anurag Soni v. State of Chattisgarh[3], the Supreme Court had observed that sexual intercourse on the false promise of marriage is also an offence under Section 417 of IPC which provides punishment for cheating. Thus, such consent shall not excuse the accused from the charges for the offence of rape under Section 375 of IPC.

Likewise, in Honnaiah v. State of Karnataka in the year 2000, the Karnataka High Court considered false promises as fraud. It further held that a mere ‘breach of promise’ would not come under the ambit of ‘misconception of fact’ defined under Section 90 unless it is coupled with mala fide intention. For example, in the case of Uday v. State of Karnataka[4] in the year 2003, the Supreme Court observed that the consent given by the victim to sexual intercourse with a person with whom she was deeply in love on a promise to marry her in the future, cannot be said to a misconception of fact under Section 90 of IPC i.e. the promise of marriage must be a false promise, given in bad faith and with no intention of being adhered to at the time it was given to constitute as rape.

It is important to know that just like any other legal system our legal system also lags in various aspects, the criminal law (IPC) and our criminal justice system are not perfect. Making sweeping observations like women in modern day “use such laws as weapon” is unwarranted. The statement rings of a misogynist narrative. It is after years of struggle against violence and assault that women have ensured certain laws and provisions got enacted that protect their dignity and equality, preserve their rights as a citizen. It should be left to trials –whenever they take place–to decide on the truth and falsity of the complaint, following principles of natural justice that is Audi Alterem partem, that, whoever is found guilty after trial shall be punished.

The judgement may be read here.

(This article has been researched by Nabeel Masood, an intern working with the organisation.)

[1] SCC 413 appeal (crl) 1086 of 2007

[2] AIR 2005 SC 203

[3] SLP (criminal) No 618/2019

[4] Appeal (crl) 336 of 1996

NCRB Data – https://www.thenewsminute.com/article/what-data-false-rape-cases-doesn-t-tell-us-163631

NFHS Data – https://www.shethepeople.tv/top-stories/opinion/nfhs-5-report-on-sexual-violence/

Data on UK rape cases- https://www.bbc.co.uk/news/uk-48095118.amp

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The Bombay High Court at Goa has directed the Sessions Court, that acquitted Tarun Tejpal in a sexual assault case, to redact statements that give away the victim’s identity from the judgement before uploading on the website.

The vacation bench of Justice SC Gupte has, at the same time, granted 3 days’ time to the State which has filed an appeal against the order, to amend the grounds of its appeal and fixed the next date of hearing on June 2. The State had filed appeal on May 25 against the acquittal of Tejpal on all charges by District and Sessions Court, Mapusa. In the 572 page judgment by Special Judge Kshama Joshi, there were comments that the complainant “did not demonstrate any kind of normative behaviour” that a victim of sexual assault “might plausibly show”. 

Tejpal was charged for offences under Indian Penal Code sections of 354 (assault or criminal force with intent to outrage modesty), 354A (sexual harassment), 354B (assault or use of force against woman with intent to disrobe), 341 (wrongful restraint), 342 (wrongful confinement), 376 (2)(f) (person in position of authority over women, committing rape) and 376(2)(k) (rape by person in position of control). He was accused of forcing himself on a colleague, inside an elevator of the Grand Hyatt, Bambolim, Goa during Tehelka magazine’s official event, in November 2013.

This acquittal order comes despite Tejpal’s admission to the assault that was part of the evidence in the trial. As per an Indian Express report, in an e-mail sent to the survivor on November 19, and another, titled “Atonement”, Tejpal wrote: “I apologise unconditionally for the shameful lapse of judgement that led me to attempt a sexual liaison with you on two occasions on 7 November and 8 November 2013, despite your clear reluctance that you did not want such attention from me”.

Solicitor General Tushar Mehta appeared for the State before the High Court for the appeal and took objection to the comments made by the trial court about the survivor’s actions. “As per this judgement, any victim of sexual assault has to exhibit her trauma and less she does that her testimony cannot be believed,” LiveLaw quoted him as saying.

When the bench questioned why a regular appeal was not filed, SG Mehta reportedly responded, “In such matters, the system expects sensitivity, apart from legal jurisprudence. Both of which are lacking in this case. We owe it to our girls that this is taken up by the high Court at the earliest.”

Identity of the survivor

SG Mehta then pointed out that the judgement discloses the identity of the complainant and her husband, which is prohibited under section 228A of IPC. Thus, the court directed that the references to the survivor’s identity including her husband’s name, her email id as well as her mother’s name be redacted before it is uploaded on the website. “Considering the law against disclosure of the identity of the victim of an offence of such as the one in which we are concerned, it is in the interest of justice to have these paras redacted,” the court stated, as per LiveLaw’s report.

In January, the Aurangabad bench of Bombay High Court had passed a detailed judgement issuing guidelines on how to avoid disclosing identity of a victim or survivor of a sexual assault or rape offence as laid out under section 228 of IPC which penalizes revealing of identity of victim of offence of rape (Section 376 and sub-sections) with imprisonment of up to 2 years and fine. The court had observed that while framing of charge, recording evidence, recording statement of accused under section 313 of the Code of Criminal Procedure, name of the victim is disclosed and thus directed that in such processed also mentioning name of the victim should be avoided and instead he/she should be referred to as ‘X’.

Related:

Tarun Tejpal case: What should a rape survivor look like?
Goa court acquits journalist Tarun Tejpal in rape case
Rape allegations become false once marriage is admitted: Allahabad HC

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