Kiran Raj

The Supreme Court of India, a three-Judge Bench of Chief Justice Surya Kant, Justice Joymalya Bagchi, and Justice N.V. Anjaria, set aside an Allahabad High Court judgment that had held that allegations of grabbing a minor girl's breast and loosening the string of her pyjama did not constitute an attempt to commit rape, but amounted only to preparation. The High Court had on that basis modified the charges against the two accused. Holding that the High Court had misapplied settled principles of criminal jurisprudence, the Supreme Court restored the original summons issued by the Special Judge directing the accused to stand trial for attempt to commit rape under the Indian Penal Code read with the Protection of Children from Sexual Offences Act.

The proceedings arose from a letter dated 20.03.2025 addressed by an organisation to the Chief Justice of India concerning a judgment dated 17.03.2025 of the High Court of Judicature at Allahabad. The High Court, in criminal revision, modified a summons order issued by the Special Judge (POCSO), Kasganj in a complaint case involving allegations of sexual assault upon a minor girl. While the trial court had issued summons under Section 376 IPC read with Section 18 of the POCSO Act, the High Court altered the charges to Section 354B IPC read with Sections 9 and 10 of the POCSO Act on the ground that the allegations disclosed preparation but not attempt to commit rape.

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Appeals were filed by two NGOs and the complainant-mother challenging the High Court judgment. Notice was issued to the Union of India, the State of Uttar Pradesh and the parties to the revision. The Supreme Court stayed certain observations of the High Court and subsequently stayed the entire judgment, directing that the trial proceed as if summons had been issued under Section 376 read with Section 511 IPC and Section 18 of the POCSO Act.

On the distinction between preparation and attempt, the Court referred to its earlier judgment in State of Madhya Pradesh v. Mahendra alias Golu and recorded: "The stage of 'preparation' consists of deliberation, devising or arranging the means or measures, which would be necessary for the commission of the offence. Whereas, an 'attempt' to commit the offence, starts immediately after the completion of preparation. 'Attempt' is the execution of mens rea after preparation. 'Attempt' starts where 'preparation' comes to an end, though it falls short of actual commission of the crime."

Applying these principles to the facts on record, 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. In light of the overt averments recorded in the Criminal Application filed by the complainant-mother under Section 156(3) of the Code of Criminal Procedure, 1973, it becomes readily apparent that, from the story of the complainant, the mens rea involved had begun to be executed. This understanding is bolstered by the High Court's own recording that the only reason why the crime was not furthered was the above-mentioned intervention by third-party witnesses."

On the High Court's conclusion, the Court stated that "we cannot agree with the finding of the High Court that the allegations only amount to preparation, but not an attempt, towards the commission of the offence of rape," and held that "the impugned judgment, thus, is liable to be set aside on account of the patently erroneous application of the settled principles of criminal jurisprudence."

On the broader issue of judicial sensitivity, the Court observed that "our efforts must not only be grounded in the sound application of constitutional and legal principles but also foster an environment of compassion and empathy," and that "the absence of either of these cornerstones would prevent judicial institutions from properly performing their critical duties."

The Court further stated that "no judge or judgment of any court can be expected to do complete justice when it is inconsiderate towards the factual realities of a litigant and the vulnerabilities which they may be facing in approaching a court of law."

The Court ordered: “Hence, the instant Criminal Appeals, arising out of Diary Nos. 15692 and 21813/2025, are allowed. The impugned judgment dated 17.03.2025 is set aside, and the original summons order dated 23.06.2023 passed by the Special Judge (POCSO), Kasganj is restored. As a necessary consequence, the clarification provided in paragraph 5 of our interim order dated 08.12.2025 stands confirmed. Ordered accordingly.”

“It goes without saying that the observations made by this Court through this judgment are only from a prima facie perspective on the case made by the complainant, and they shall not be taken to be any opinion on the guilt of the accused persons, which is the subject matter of the ongoing trial.”

“For this purpose, we request the National Judicial Academy, Bhopal, through its Director, Justice Aniruddha Bose, former Judge of this Court, to constitute a Committee of Experts. The Committee of Experts shall be presided over by Justice Bose as Chairperson and shall comprise four other domain experts as Members, which may include practitioners, academicians, and social workers.”

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“The Registry of this Court is directed to forward a copy of this order to Justice Bose, and we request him to constitute the Committee of Experts, preferably within a period of two weeks. Counsel for the parties are permitted to file written submissions, charts, lists, and other documents, which may be of relevance to the Committee, with the Registry of this Court within two weeks. We request the Committee of Experts to complete its deliberations and submit a report to this Court, preferably within three months.”

“Hence, in terms of the directions issued hereinabove, the instant suo motu case stands disposed of. Pending interlocutory applications, if any, also stand disposed of.”

Advocates Representing the Parties:

For the Petitioners: Mr. Prashant Padmanabhan, AOR; Mr. H. S. Phoolka, Senior Advocate; Mr. Bhuwan Ribhu, Advocate; Ms. Rachna Tyagi, Advocate; Ms. Shashi, AOR; Mr. Saksham Maheshwari, Advocate; Ms. Surabhi Katyal, Advocate; Ms. Surpreet Kaur, Advocate; Mr. Amar Lal, Advocate; By Court’s Motion, AOR

For the Respondents: Mr. Sharan Dev Singh Thakur, Senior Additional Advocate General; Ms. Ruchira Goel, AOR; Mr. Sharanya, Advocate; Ms. Ritika Rao, Advocate; Ms. Ayushi Srivastava, Advocate; Ms. Shobha Gupta, Senior Advocate; Mr. Aditya Ranjan, AOR; Ms. Yogmaya MG, Advocate; Ms. Komal Saini, Advocate; Ms. Siny Sara Varghese, Advocate; Mr. Rohin Bhatt, Advocate; Mr. Pritam Singh, Advocate; Mr. Umesh Kumar Shukla, Advocate; Ms. Parvathi Menon, Advocate; Mr. Sangeeth Mohan, Advocate; Mr. Rahul Gupta, AOR

Case Title: IN RE: ORDER DATED 17.03.2025 PASSED BY THE HIGH COURT OF JUDICATURE AT ALLAHABAD IN CRIMINAL REVISION NO. 1449/2024 AND ANCILLARY ISSUES

Neutral Citation: 2026 INSC 165

Case Number: Suo Moto Writ Petition (Criminal) No. 1/2025 with connected Criminal Appeals

Bench: Chief Justice Surya Kant, Justice Joymalya Bagchi, Justice N. V. Anjaria