In his order passed on March 17, Justice Ram Manohar Narayan Mishra of the Allahabad High Court deleted the charges of attempted rape against three accused persons and directed that they should be tried for the “minor offence” of assaulting or using criminal force against a woman under Section 354B of the Indian Penal Code, 1860 (IPC), read with Sections 9/10 (aggravated sexual assault) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

The High Court was hearing an appeal by the accused against an order of a POCSO court summoning them to trial under Section 376 IPC (rape) and Section 18 (punishment for attempt to commit an offence) of the POCSO Act.

The HC’s March 17 verdict and the stay ordered by the SC on Wednesday spotlight the thin line between the “preparation” to commit an offence and the “attempt” to commit that offence.

It is a crucial distinction, as “preparation” is not punishable in the vast majority of cases, while an “attempt” to commit an offence is criminally punishable.

The distinction is also relevant for an important ongoing debate: how should courts define and punish an attempt to commit rape?

‘Preparation’ vs ‘attempt’

To prove an attempt to commit an offence, certain other things must be proven, including that the accused made preparations to commit the offence, the Supreme Court has held earlier. In essence, preparing to commit an offence is a stage that precedes the attempt to commit that offence.

In Abhayanand Mishra v. State of Bihar (1961), the SC ruled that to prove an attempt to commit an offence, the prosecution must broadly show that:

• The accused had the “intention” to commit that offence.
• The accused made preparations to commit the offence.
• The accused then acted towards committing the offence — this need not be the “penultimate act”, that is, the final act before the offence is committed.
• The penultimate act took place “during the course of committing that offence”. (This is known as the requirement of “proximity”.)

Crucially, an attempt is said to be made only when this penultimate act takes place — an accused cannot be held guilty for merely making preparations without taking any action towards committing a crime.

As the SC put it in State of Maharashtra v Mohd. Yakub (1980), “attempt begins where preparation ends”.

Standard applied by HC

The facts of the case, as recorded in the judgment, are as follows:

The accused persons met the minor girl and her mother and offered to drop the child home on their motorcycle. On the way, “they started grabbing her breasts and…dragged her and tried to take her beneath the culvert and broke the string of her pyjami”. Two witnesses who heard the cries of the child arrived on the scene before the offence of rape could take place. The accused persons made some threats and fled. They were charged with attempt to commit rape under the IPC and POCSO Act.

The HC held that the “the allegations…and facts of the case hardly constitute an offence of attempt to rape… The prosecution must establish that it had gone beyond the stage of preparation”.

The HC also relied on an old English case, Rex v. James Lloyd (1836), in which the judge, Justice Patterson, held: “In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner…not only desired to gratify his passions upon her person but that he intended to do so at all events and notwithstanding any resistance on her part.”

The English judge noted that “indecent assaults are often magnified into attempts at rape, and even more often into rape itself”, and the court must be satisfied that the accused showed “a determination to gratify his passions…in spite of all resistance”. This high bar essentially requires the victim to offer “resistance” for the accused to be charged with an attempt to rape.

The HC judgment also found that “There is no allegation that accused tried to commit penetrative sexual assault against the victim”. Penetration is a precondition for proving rape under the IPC.

Therefore, the court held that the accused cannot be summoned for the offence of attempted rape — and they are only liable to be summoned “for minor charge of Section 354(b) IPC i.e. assault or abuse a woman with intent to disrobing or compelling her to be naked”, which carries a punishment of 1-5 years’ imprisonment.

Earlier instances

The almost two-centuries-old Lloyd ruling continues to act as a basis for deciding if an accused attempted to commit the offence of rape.

In May 2024, the Rajasthan HC applied the standard test for ‘attempt’ as well as the Lloyd ruling to alter an attempted rape conviction and instead hold the accused guilty under Section 354, thus reducing the punishment.

In 2004, the Supreme Court had adopted a similar approach to achieve the same result in the case of Aman Kumar & Anr v. State of Haryana.

The Supreme Court, which took suo motu cognizance of the HC verdict on March 25, now has the opportunity to reconsider the legal standard for attempted rape. While issuing a stay on the ruling, the court noted that the Allahabad HC’s observations “are totally unknown to the tenets of law and depict total insensitivity and inhuman approach”.