“Only Preparation, Not Attempt”? Supreme Court Strikes Down High Court’s Downgrade of a Minor’s Attempt-to-Rape Case and Calls for Guidelines to Teach Judges Compassion (2026 INSC 165)

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Every law student meets the line between preparation and attempt in the first year of criminal law, usually through a textbook example about someone who buys a rope or sharpens a knife. On 10 February 2026, that same line came before the Supreme Court in a very different setting: a minor girl, a motorcycle ride that was meant to end at her home, and a culvert on the way.

The Allahabad High Court had held that the alleged acts amounted to preparation and nothing more. A Bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and N.V. Anjaria disagreed, restored the original summoning order, and then did something rarer. It turned to the judiciary itself and asked a committee of experts to draft guidelines on sensitivity and compassion in cases of sexual offences. This post follows the judgment in the order the Court took it: first the legal question, then the larger one.

The Case at a Glance

Case: 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, Suo Moto Writ Petition (Criminal) No. 1 of 2025, decided together with two Criminal Appeals arising out of Diary Nos. 15692/2025 and 21813/2025 (2026 INSC 165, reportable).
Bench: CJI Surya Kant, Justice Joymalya Bagchi and Justice N.V. Anjaria. The judgment was authored by CJI Surya Kant.
Decided on: 10 February 2026, New Delhi.
Order challenged: The Allahabad High Court’s judgment of 17.03.2025, which modified the Special Judge (POCSO), Kasganj’s summoning order in Complaint Case No. 23/2022.
Heard: Ms. Shobha Gupta and Mr. H.S. Phoolka, Senior Advocates, and Mr. Sharan Dev Singh Thakur, Senior Additional Advocate General for the State of Uttar Pradesh. The accused had notice of the proceedings but no one appeared for them.
Result: Appeals allowed, High Court judgment set aside, summoning order restored, expert committee requested to draft guidelines, suo motu petition disposed of.

From a Letter to a Suo Motu Case

This matter did not begin as an ordinary appeal. The Court records that the suo motu writ petition was registered on the directions of the Chief Justice of India, prompted by a letter dated 20.03.2025 from an organisation called ‘We the Women of India’, sent through its Founder President, Ms. Shobha Gupta, Senior Advocate. The letter drew attention to the High Court’s judgment of 17.03.2025 and argued that its observations and reasoning were erroneous in law, insensitive and irresponsible, and likely to demoralise efforts to protect women and other vulnerable persons from sexual offences.

Two sets of petitioners had already come to the Court against the same judgment. Diary No. 21813/2025 was filed by an NGO registered in Kolkata. Diary No. 15692/2025 was filed by an NGO registered in Delhi together with the complainant, who is the mother of the minor victim. The Court granted permission to file the special leave petitions, allowed an intervention application and granted leave, so that all three matters could be decided together. Here is how the proceedings unfolded:

17.03.2025: A Single Judge of the High Court decides Criminal Revision No. 1449/2024 and modifies the summoning order.
26.03.2025: The Supreme Court issues notice to the Union of India, the State of Uttar Pradesh and the parties to the revision, and stays the observations in paragraphs 21, 24 and 26 of the High Court’s order.
08.12.2025: The Court stays the operation of the entire High Court judgment and clarifies that the trial in Complaint Case No. 23/2022 will proceed as if the summons had been issued under Section 376 read with Section 511 of the IPC and Section 18 of the POCSO Act.
10.02.2026: Final judgment.

What the High Court Changed

The Special Judge (POCSO), Kasganj had summoned two accused in Complaint Case No. 23/2022 under Section 376 of the IPC read with Section 18 of the POCSO Act, which together point to an attempt to commit rape. In revision, the Single Judge modified the summons to Section 354B of the IPC (assault or criminal force to a woman with intent to disrobe her) read with Sections 9 and 10 of the POCSO Act (aggravated sexual assault and its punishment). That is a lesser charge.

As the Supreme Court records it, the High Court took this step because, in its view, a prima facie reading of the alleged facts did not make out an attempt to commit rape. Everything therefore hung on a single question: had the accused only prepared to commit the offence, or had they moved beyond preparation and attempted it?

The Three-Rung Ladder: Preparation, Attempt, Commission

It helps to picture a crime as a ladder. Preparation sits on the bottom rung and the completed offence at the top. The hardest legal work happens on the middle rung, attempt, because that is where a person becomes punishable even though the offence was never finished.

The Court did not build this ladder from scratch. It went back to State of Madhya Pradesh v. Mahendra alias Golu, (2022) 12 SCC 442, a 2-judge Bench decision authored by Surya Kant, J., as he then was, and reproduced paragraph 13 of that judgment. Three ideas come out of it:

Preparation is the stage of deliberation and of devising or arranging the means or measures needed to commit the offence.
Attempt starts immediately after preparation is complete. It is the execution of mens rea after preparation.
The boundary: attempt begins where preparation comes to an end, though it falls short of the actual commission of the crime.

The passage also carries a caution that every drafter should underline. The distinction depends on the statutory edict together with the nature of the evidence produced in a case. There is no mechanical formula, so the outcome turns on how the facts are pleaded and proved.

The Facts That Decided It

The High Court recorded the factual allegations in paragraphs 21 and 22 of its judgment. The Supreme Court summarised them in these steps:

The accused took the minor victim as a pillion rider on their motorcycle, after assuring her mother, the complainant, that they would drop the victim at her residence.
Instead, they stopped the motorcycle near a culvert.
They dragged her towards the culvert and committed sexually offensive acts, which are recorded in the High Court’s judgment.
The victim shrieked, two witnesses reached the spot, and the accused fled.

The Bench saw no room for doubt about what this showed. A bare perusal of the allegations, it said, discloses a case that the accused proceeded with a pre-determined intent to commit an offence under Section 376 of the IPC. Read with the complaint that the mother filed under Section 156(3) of the Code of Criminal Procedure, 1973, it was readily apparent that on the complainant’s story the mens rea had begun to be executed.

The detail that carries the most weight is one the High Court itself recorded: the only reason the crime was not taken further was the intervention of the third-party witnesses. The judgment treats that intervention, and not any decision by the accused to stop, as the reason the offence went no further. An accused who is halted by someone else has done more than prepare.

The Court therefore could not agree that the allegations amounted only to preparation. It held that, prima facie, a case for invoking the provisions on attempt to commit rape had been made out, and it described the High Court’s contrary conclusion as a patently erroneous application of the settled principles of criminal jurisprudence.

What Was Set Aside and What Was Restored

Both Criminal Appeals, arising out of Diary Nos. 15692/2025 and 21813/2025, were allowed.
The High Court’s judgment dated 17.03.2025 was set aside.
The original summons order of the Special Judge (POCSO), Kasganj was restored.
The clarification in paragraph 5 of the interim order dated 08.12.2025 was confirmed, so the trial proceeds as if the summons were under Section 376 read with Section 511 of the IPC and Section 18 of the POCSO Act.

A limit the Court drew itself: everything above is a prima facie view of the case made out by the complainant. It is not an opinion on the guilt of the accused, which is for the ongoing trial to decide.

Beyond the Case: Should Judges Be Trained to Care?

Ms. Gupta and Mr. Phoolka asked the Court to go further. Apart from the legal flaws in the High Court’s order, they pointed to what they saw as its insensitivity towards the minor girl. They submitted that impassive judicial decisions occur at different levels of the judiciary, particularly where victims and witnesses are vulnerable or are children, and asked for guidelines to prevent this in future. The Bench said it found some strength in these concerns.

The reasoning that follows is short but reads like a statement of judicial philosophy. The justice system exists to deliver justice and satisfaction to citizens who come to it with grievances. Sound application of constitutional and legal principles is one cornerstone of that work, and an environment of compassion and empathy is the other. Without either, the Court said, judicial institutions cannot perform their critical duties. No judge or judgment can do complete justice while being inconsiderate to the factual realities and vulnerabilities of the litigant. The Court also accepted that the Constitutional Courts have taken various steps over time, on both the judicial and administrative sides, but that the efforts so far have not borne the fruit that was expected.

It is worth noticing what this part of the judgment does not do. It does not name or censure any individual judge. It frames the problem as one for the system as a whole.

Why the Court Chose Experts Over an Instant Rulebook

The quickest route would have been to write guidelines into the judgment itself. The Court declined, and its reasons are instructive for anyone who studies how constitutional courts decide when to legislate from the bench. It said it was hesitant to make a fresh and unguided attempt without:

a comprehensive understanding of the past endeavours of this kind by different Constitutional and statutory bodies;
knowledge of the on-ground results of those efforts and the varying problems faced by victims and complainants in similarly sensitive cases; and
the opinions and suggestions of domain experts, which, in the Court’s judicial experience, do not intuitively emerge from litigative proceedings.

Inside the Committee’s Brief

The Court requested the National Judicial Academy, Bhopal, through its Director, Justice Aniruddha Bose, a former Judge of the Supreme Court, to constitute a Committee of Experts. Justice Bose presides as Chairperson, with four other domain experts as Members, who may include practitioners, academicians and social workers. The brief is unusually detailed:

The task: a comprehensive report on ‘Developing Guidelines to Inculcate Sensitivity and Compassion into Judges and Judicial Processes in the Context of Sexual Offences and other Vulnerable Cases’, looking at earlier judicial and administrative measures and how they worked on the ground.
The output: ‘Draft Guidelines for the Approach of Judges and the Judicial System When Dealing with Cases of Sexual Offences and other Similarly Sensitive Occurrences Involving Vulnerable Victims, Complainants, and/or Witnesses’.
Language and dialect: the Committee must bear India’s linguistic diversity in mind. The Court observed that some words which would ordinarily amount to an offence under penal laws are openly spoken in local dialects, apparently because their offensive nature is not clearly understood. It asked the Committee to identify and compile such words and expressions from different languages, so that they do not go unnoticed and complainants can give a fuller narrative of the trauma they have undergone.
Audience: the primary beneficiaries are victims and complainants, most of whom are children, women of tender age and members of vulnerable sections of society. The guidelines must be easy for them to understand and use, irrespective of background and means.
Style: simple language that laypersons can follow, preferably for the entire report and at the very least for the draft guidelines, without heavy expressions borrowed from foreign languages and jurisdictions. The Committee may also prepare translated versions of public-facing sections.
Length: no cap on volume. The report should be comprehensive and exhaustive, with explanations and illustrations where needed.
Outside help: the Committee may seek assistance from linguistics academicians, prosecutors, litigators, social scientists and counsellors.

The mechanics are equally specific:

The Registry sends a copy of the order to Justice Bose, who is requested to constitute the Committee preferably within two weeks.
Counsel may file written submissions, charts, lists and other relevant documents with the Registry within two weeks. These will be forwarded to the Committee with a complete set of the paperbooks.
Justice Bose will determine the honorarium for the Chairperson and Members, and the funds will come from the Supreme Court of India.
The Committee is requested to submit its report preferably within three months.

What Happens to the Suo Motu Petition

Because the order of 17.03.2025 had already been set aside, the Court held that the suo motu writ petition need not be kept open, and it disposed of the petition along with all pending interlocutory applications. When the Committee’s report arrives, the Registry will place it before the Chief Justice of India on the administrative side for instructions. The Court said the report will then be taken up holistically, not in the context of a single case. In practical terms, the next chapter of this story will be written administratively rather than through another judgment.

What Lawyers and Law Students Should Take From This Judgment

Plead overt acts in sequence and tie each to intent. The Court read the alleged ride, the stop at a lonely spot, the dragging and the interrupted act as execution of a pre-determined intent. If you draft for a complainant, set out the steps in order and connect them to mens rea. If you defend, expect the same sequence to be used against a mere preparation argument.
Cite the test at its source. Paragraph 13 of Mahendra alias Golu, (2022) 12 SCC 442, has now been reproduced and applied by a Bench led by its author, which makes it the natural authority on the preparation and attempt divide.
Know what a prima facie ruling does. The Court restored the summons at the prima facie stage and expressly left guilt to the trial. Frame submissions on charge and summoning accordingly, and do not treat such observations as findings.
Watch the procedure. This case moved through a letter petition, a suo motu registration, an intervention, notice, a partial stay, a full stay and a final hearing. It is a useful map of how the Supreme Court can respond when an order raises public concerns.
Plain language is becoming an expectation. The Court asked for guidelines that ordinary people can read. Lawyers drafting complaints, applications and written submissions in sensitive matters would do well to read that as a signal about how courts want to be addressed.
Follow the Committee’s report. Draft guidelines on how judges approach vulnerable victims and witnesses will shape how you prepare witnesses, frame questions and present sensitive facts.

A Note on the Record Before You Cite This Judgment

Two details in the text of the judgment are worth checking against the certified copy before you quote it in a petition. First, paragraph 5 refers to the Special Judge’s summoning order as dated 26.03.2023, while paragraph 15, in restoring it, refers to the original summons order dated 23.06.2023. Second, the caption of the reported copy leaves the Criminal Appeal numbers and the SLP (Criminal) numbers blank, so the appeals are identifiable only by Diary Nos. 15692/2025 and 21813/2025. Cite by the Diary numbers and the neutral citation 2026 INSC 165.

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Frequently Asked Questions

What did the Supreme Court decide in Suo Moto Writ Petition (Criminal) No. 1 of 2025 (2026 INSC 165)?

On 10 February 2026, a Bench of CJI Surya Kant and Justices Joymalya Bagchi and N.V. Anjaria allowed two criminal appeals and set aside the Allahabad High Court’s judgment of 17.03.2025 in Criminal Revision No. 1449/2024. It restored the Special Judge (POCSO), Kasganj’s original summoning order, held that a prima facie case of attempt to commit rape is made out, and requested the National Judicial Academy, Bhopal, through Justice Aniruddha Bose, to constitute a Committee of Experts to draft guidelines on sensitivity and compassion in cases involving vulnerable victims. The suo motu petition was then disposed of.

What is the difference between preparation and attempt in criminal law?

Following State of Madhya Pradesh v. Mahendra alias Golu, (2022) 12 SCC 442, which the Court reproduced, preparation is the stage of deliberation and of devising or arranging the means needed to commit an offence. Attempt starts immediately after preparation is complete and is the execution of mens rea after preparation. It begins where preparation ends, though it falls short of the actual commission of the crime. Which side of the line a case falls on depends on the statutory edict and the nature of the evidence produced.

Why did the Supreme Court hold that the allegations amounted to attempt and not mere preparation?

The Court read the allegations as showing a pre-determined intent to commit an offence under Section 376 of the IPC. On the complainant’s case, the accused took the minor victim on a motorcycle after assuring her mother they would drop her home, stopped near a culvert, dragged her towards it and committed sexually offensive acts. The High Court itself had recorded that the offence went no further only because two witnesses arrived after the victim shrieked. The Court found that the mens rea had begun to be executed and called the High Court’s contrary finding a patently erroneous application of settled principles. These are prima facie observations and not an opinion on the accused’s guilt.

What did the Supreme Court ask the Committee of Experts to prepare?

The Court asked the Committee, chaired by Justice Aniruddha Bose with four other domain experts, to prepare a comprehensive report on developing guidelines to inculcate sensitivity and compassion into judges and judicial processes in sexual offence and other vulnerable cases. The report should end with Draft Guidelines for the approach of judges and the judicial system towards vulnerable victims, complainants and witnesses. The guidelines should be in simple language, may include translated public-facing sections, and should compile offensive words and expressions used in local dialects. The Court asked for the report preferably within three months.

What are the citation, Bench and case numbers for this judgment?

The judgment is reported as 2026 INSC 165 and was decided on 10 February 2026 in New Delhi. The lead matter is Suo Moto Writ Petition (Criminal) No. 1 of 2025, heard with two Criminal Appeals arising out of SLP (Criminal) Diary Nos. 15692/2025 and 21813/2025. The Bench was CJI Surya Kant, Justice Joymalya Bagchi and Justice N.V. Anjaria, and the judgment was authored by CJI Surya Kant. It arises from the Allahabad High Court’s order of 17.03.2025 in Criminal Revision No. 1449/2024, concerning Complaint Case No. 23/2022 before the Special Judge (POCSO), Kasganj.

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