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A bench of Chief Justice Surya Kant and Justice Joymalya Bagchi was hearing suo motu proceedings initiated after the court took cognizance of “insensitive” observations made by the Allahabad High Court along with its March 17 order, with lawyers pointing out that several high courts have recently made similar oral and written observations in sexual harassment cases.
Senior advocate Shobha Gupta, appearing for one of the interveners, said that in another recent case, the Allahabad High Court had remarked that since it was night, it was an “invitation” to the accused.
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He also cited other such cases of Calcutta and Rajasthan High Courts.
Another lawyer pointed to a recent incident in the trial court on Monday, where despite in-camera proceedings, “several people were present” and the victim was allegedly harassed during the hearing.
“If you can cite all these examples then we can consider issuing a set of comprehensive guidelines. Any comment of this nature can have a chilling impact on the victims, their families and the society at large… Also, at times, such modalities are also adopted to force them (victims) to withdraw complaints,” the CJI said in the beginning.
He said that these are comments of the High Courts, and such comments should not be taken into consideration at the trial court level and we would like to issue some comprehensive directions.
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The bench asked the lawyers to submit brief written suggestions before the next date of hearing.
The bench had earlier taken suo motu cognizance of the March 17 order of the Allahabad High Court.
The High Court had held that holding the breasts of a minor girl, ripping the string of her pajama and attempting to pull off her lower garment was insufficient to constitute an attempt to rape.
Referring to the facts of the present case, the CJI said that he will set aside the order of the Allahabad High Court and will continue hearing the case.
The bench was told that the High Court had quashed the trial court’s order framing charges under the stringent provision of rape under the IPC and instead ordered framing of charges for a lesser offense under Section 354B of the IPC, which deals with the offense of assault or using criminal force to a woman with intent to disrobe or compel her to be naked.
Section 354B provides for three to seven years’ imprisonment and fine.
To ensure that there is no prejudice to the victim, the bench stayed the execution of the High Court order, directing that if the trial court issues summons, it must summon the accused under sections 376 and 511 of the IPC and POCSO without being influenced by the findings of the High Court.
However, the bench said that its directions on the trial proceedings against the accused were not indicative of the guilt of the accused.
The bench also said that the accused in the case were served notices twice by state agencies, but they failed to appear before the apex court.
Senior advocate HS Phoolka, appearing for one of the petitioners, said the accused were regularly attending the trial court proceedings and were fully aware of the case before the apex court.
The court directed the concerned SHO to send the information to the accused and gave them the option to join the proceedings on the next date, adding that the case will not be adjourned thereafter for service related issues.
The main case pertains to an incident where three men allegedly stopped a woman and her 14-year-old daughter.
The accused allegedly grabbed the minor’s breasts, pulled the string of her lower garment and attempted to drag her under a culvert.
The Allahabad High Court, in its impugned order, had concluded that these facts were “not sufficient to conclude that the accused persons were determined to commit rape” and suggested the lesser charge of assault (section 354 IPC).
The top court had taken suo motu cognizance of the case following a letter written by the group “We the Women of India” to the Chief Justice of India.
In an earlier hearing on March 26, a bench led by Justice BR Gavai had described the High Court’s observations as “completely alien to the principles of law” and reflective of an “inhuman approach”.