The Supreme Court has overturned a judgment of the Allahabad High Court which held that grabbing a minor girl’s breasts and loosening her pyjama string amounted only to “preparation” and not an attempt to commit rape.
A three-judge Bench of Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice N.V. Anjaria delivered the verdict in a suo motu matter initiated last year. The Court restored the original summoning order issued by the Special Judge under Section 376 IPC read with Section 18 of the POCSO Act.
The Bench held that the High Court misapplied settled principles of criminal law while distinguishing between preparation and attempt. It found that the accused stopped only because third parties intervened.
The Court observed:
“The facts alleged being so, we cannot agree with the finding of the High Court that the allegations only amount to preparation, but not an attempt… The impugned judgment, thus, is liable to be set aside on account of the patently erroneous application of the settled principles of criminal jurisprudence.”
Background
The case arose from a complaint filed by the mother of an 11-year-old girl. Acting on an application under Section 156(3) CrPC, the Special Judge (POCSO), Kasganj, issued summons to two accused under Section 376 IPC read with Section 18 of the POCSO Act.
The Allahabad High Court later modified that order. It held that the allegations did not disclose attempt to rape. Instead, it directed trial under Section 354B IPC read with Sections 9 and 10 of the POCSO Act, which carry lesser punishment.
Justice Ram Manohar Narayan Mishra of the High Court reasoned that the prosecution had not shown conduct beyond the stage of preparation.
Supreme Court on ‘Preparation’ vs ‘Attempt’
Before the Supreme Court, the prosecution alleged that the accused, Pawan and Akash, grabbed the victim’s breasts. One of them broke the string of her pyjama and tried to drag her beneath a culvert.
The trial court treated these allegations as attempt to commit rape or attempt to commit penetrative sexual assault. It therefore invoked Section 376 IPC with Section 18 of the POCSO Act.
The Supreme Court referred to State of Madhya Pradesh v. Mahendra alias Golu (2022), authored by then Justice J.B. Pardiwala. The decision explains that an attempt begins when the accused executes the mens rea after preparation.
Applying that test, the Bench noted that the accused abandoned the act only because witnesses reached the spot after hearing the minor’s cries.
The Court observed:
“A bare perusal of these allegations leaves no modicum of doubt that the case sought to be made out is that the accused persons proceeded with a pre-determined intent to commit an offence under Section 376 of the IPC on her… the mens rea involved had begun to be executed.”
Interim Orders and Suo Motu Proceedings
Earlier, a Bench of Justice B.R. Gavai and Justice A.G. Masih had stayed paragraphs 21, 24, and 26 of the High Court’s order on March 26 last year. The Court had described the High Court’s reasoning as “shocking” and “insensitive.”
On December 8, 2025, the Supreme Court stayed the entire High Court judgment. It clarified that if the trial proceeds, it must proceed on the premise that the accused were summoned under Section 376 read with Section 511 IPC and Section 18 of the POCSO Act.
Result
The Supreme Court restored the trial court’s summoning order. It confirmed paragraph 5 of the interim order dated December 8, 2025. The Bench clarified that its observations should not be treated as a finding on the guilt of the accused.
The trial will now continue under the original charges.
