Supreme Court Dismisses Writ Petition Against Allahabad HC Ruling That Grabbing Breasts & Breaking Pyjama String Won't Constitute Attempt To Rape

The Supreme Court today dismissed a writ petition challenging the Allahabad High Court's order which held that grabbing the breasts of a minor girl, breaking the string of her pyjama and trying to drag her beneath a culvert would not come under the offence of rape or an attempt to rape.

The writ petitiion was filed by a party, who is a stranger to the criminal proceedings. To challenge an order of a High Court, a Special Leave Petition under Article 136 has to be filed in the Supreme Court. The Supreme Court has held in many judgments that writ petition filed under Article 32 is not maintainable against a judgment of the High Court.

It is the case of the prosecution that the accused persons, Pawan and Akash, grabbed the breasts of the 11-year-old victim and one of them, namely Akash, broke the string of her pyjama and tried to drag her beneath the culvert. Finding it to be a case of attempt to rape or attempt to commit penetrative sexual assault within the purview of the Protection of Children from Sexual Offences Act, 2012, the concerned trial court invoked Section 376 with Section 18 (attempt to commit an offence) of the POCSO Act and issued summoning order under these sections.

However, the High Court instead directed that the accused be tried under the minor charge of Section 354-B IPC (assault or use of criminal force with intent to disrobe) read with Sections 9/10 of the POCSO Act (aggravated sexual assault). The order created a huge controversy, with several members of the public criticising it.

Before a bench of Justices Bela M. Trivedi and PB Varale, an Advocate began his arguments by stating there is a slogan "beti padhao, beti baccho". But before he could continue, Justice Bela stopped him and stated that "no lecture baazi" should be allowed in the Court. She also went on to ask who is the advocate on record who filed the writ petition and why he was not present in the Court.

The Advocate responded that the AOR had authorised him to argue but he was not present. Justice Bela then questioned the presence of the petitioner who was also not present. The Court then went on to dismiss the writ petition.

The petitioner had named the Union Government, the Ministry of Women and Child Welfare and the Allahabad High Court as the respondents in the petition.

In this case, the High Court drew a distinction between preparation and attempt.

“The allegations levelled against the accused Pawan and Akash and facts of the case hardly constitute an offence of attempt to rape in the case. In order to bring out a charge of attempt to rape the prosecution must establish that it had gone beyond the stage of preparation. The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination,” a bench of Justice Ram Manohar Narayan Mishra observed as it partly allowed the criminal revision plea filed by 3 accused.

Case Details: ANJALE PATEL  v. UNION OF INDIA AND ORS.|Diary No. 15118-2025