In a concerning trend, observed recently in cases of sexual assault against women and children, the judiciary has been engaging in whittling down of charges framed, or disregarding of survivor’s testimony, on hyper-technical excuses guised as legal grounds. In some cases the reason offered is that, local/vernacular terminology was used by the minor victim while describing sexual abuse. At other instances, the victim herself is put to blame for “inviting trouble”, as was observed recently by the Allahabad High Court while granting bail to a rape accused.
The same High Court made headlines a few days ago, upon passing an Order that shook the conscience of the nation. The High Court of Allahabad, on 17th March 2025, modified the summoning orders issued by the learned Special Judge (POCSO), Kasganj against the accused charged under Section 376 (Rape) IPC, read with section 18 (Attempt to commit an offence) POCSO Act, to hold that- the acts of “grabbing the breasts of the child along-with breaking the strings of her pyjami”, and forcefully dragging her beneath a culvert, before fleeing upon the arrival of passersby – was not sufficient to establish the offence of “attempt to Rape”. Consequently, at the summoning stage itself, the charges were diluted, to be substituted with sexual offences attracting much lesser penalties. Needless to say, this was justified as evidentiary caution or definitional interpretation.
Ordinarily, a crime of such severity is followed by an FIR. But here, the Police refused to register the FIR, when approached by the mother of the girl. She then wrote to the Superintendent of Police, Kasganj, on November 16, 2022 but there was still no action. Two months later, with no FIR and no progress, she filed an application against all the accused under Section 156(3) of the CrPC (Police Officer’s Power to investigate cognizable offence) before the Special Judge, POCSO.
But instead of ordering an FIR, the court treated it as a complaint, shifting the responsibility of proving everything onto the victim’s family. The mother’s statement was recorded only in May 2022, and the victim’s in July 2022. About a year later, when the matter reached the Special POCSO Court, it summoned the accused under Section 376 IPC read with Section 18 of the POCSO Act—attempt to rape on June 23, 2023. However, in December 2023, the accused moved the Allahabad High Court
Ironically enough, the High Court duly admitted and acknowledged the facts and allegations. Nonetheless it held that the commission of the alleged crime did not attract the offence of attempt to rape. Rather, the Court goes onto to conclude that the accused’s actions though sexually driven, did not cross the threshold of “attempt”, but instead qualified as sexual assault under Sections 354B IPC and 9/10 of the POCSO Act. The result was the dilution of charges at the cost of justice.
What constitutes an attempt?
Now the question that naturally follows is, what indeed constitutes an attempt? As per the binding precedents of the Hon’ble Supreme Court, repeatedly upheld, “attempt begins where preparation ends”. An act qualifies as an ‘attempt’ when it is done directly in furtherance of the offence, which would have otherwise resulted in its consummation, in absence of external intervention. This was exactly the case here. The act of grabbing a child’s private parts, forcibly removing her clothes, and dragging her to a concealed location meets the standard of an “attempt” as clarified by a number of precedents. The commission of the said acts in the present case, were interrupted only by a passerby, clearly indicating sexual intent and overt steps toward rape.
Moreover, the Apex Court has recently and routinely clarified that at the summoning stage, the court is not required to weigh the evidence meticulously, but only to determine whether there exists a prima facie case. Despite this, the Allahabad High Court modified the charges at the preliminary stage of summoning, which is reflective of an impermissible judicial overreach. Further, High Court’s re-evaluation of the facts and substitution of charges amounts to a premature adjudication of the case or a ‘mini-trial’, done without allowing the trial to run its course.
Presumption of Guilt under POCSO Brushed Aside
The enactment of POCSO Act, 2012 was a historical moment in India’s legal landscape with one of its objects being to “give best interest of the child paramount importance at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated special courts”. In furtherance of this objective, the Act introduced special provisions by way of sections 29 and 30 which presume that once the foundational facts of the offence are established, the offence is deemed to have been committed, and the culpable intention is deemed to exist. In other words, the burden of proving innocence lies on the accused, recognising the special protections a child deserves.
The High Court’s failure to apply these statutory presumptions, reflects its lack of sensitivity and accountability towards POCSO’s protective framework.
Endless wait for Statutory Right to FIR
Most astonishingly, almost three and a half years have elapsed since the commission of the offence, yet neither the trial court nor the High Court has directed the registration of FIR. This glaring omission is reflective of a disturbing abdication of judicial accountability as well as denial of the victim’s statutory right to prompt legal recourse.
The Child Victim’s Story
Legal impunities and public outcry aside, it is perhaps most pertinent to hear the victim’s agony since the said crime. The victim has dropped out of school as the secondary school is in the same village as the accused. She continues to live in an environment of constant fear, intimidation, and re-traumatization. The failure of the system, from police to judiciary, to ensure swift, child-friendly justice, has not only intensified her trauma, but has also extinguished all her options to pursue further education. When the child’s mother narrated her ordeal, our government’s flagship slogan “beti bachao, beti padhao” personified before me. Maybe, we need it now more than ever.
Following Just Rights for Children’s intervention at the Supreme Court, alongside the Apex Court’s suo moto cognizance of the case, the Allahabad High Court’s order stands stayed. But this case raises a fundamental question:
If this conduct is not construed as an attempt to rape then what will? How far must the assailants or the actions go, how late must we leave it until the law recognizes the act as a grave offence?
How far must a child be assaulted, how close must the perpetrators come to “consummating” the act, before the law wakes up?
When courts treat “attempt to rape” as a threshold demanding near-complete execution of the act, they strip the offence of its practical meaning. The stone-walled interpretation by the judiciary observed in this case not only weakens legal deterrence, but also delegitimizes the trauma of child victims.
The POCSO Act was never intended as a guideline. It is a binding law—and like any law, it holds no value unless enforced with rigour and accountability. The High Court may have believed it was exercising caution, but in doing so, it distorted the law’s intent and rendered the child invisible in the very process meant to protect her. This case, therefore, must be treated as a wake-up call by all concerned.
By Rachna Tyagi
Advocate and Partner, Ethicus Legal and Consulting Solutions and Leading Lawyer-Juvenile Justice and Protection of Children Rights
Views Are Personal.
