POCSO Act, 2012
Preparation and Attempt under POCSO, and the Allahabad High Court Case
The line between preparation and attempt decides whether an accused who did not complete a sexual offence against a child is punished for it at all. Preparation is, as a rule, not a crime; attempt is, under Section 18 of the POCSO Act. In March 2025 the Allahabad High Court placed that line in the wrong place, holding that an assault on an eleven-year-old stopped only by passers-by was mere preparation. The Supreme Court stayed the observations within days and, on 10 February 2026, set the judgment aside. This note sets out the law and the case.
The five alleged acts measured against the preparation-attempt line, the course of the case, and the law
1. The Four Stages of an Offence
Stage | What it is | Punishable? |
|---|---|---|
Intention | The mind resolves on the offence | No |
Preparation | Arranging the means and opportunity | No, as a rule, save for specific offences such as preparation to wage war or commit dacoity |
Attempt | An act done towards the commission of the offence, with intent, which fails | Yes: POCSO s. 18; BNS s. 62 and specific provisions |
Commission | The offence is complete | Yes, with the full punishment |
2. Section 18: Attempt under POCSO
§ Section 18 (in substance) Whoever attempts to commit any offence punishable under the Act, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of imprisonment for life or one-half of the longest term, or with fine, or with both. Its essentials: an intention to commit an offence under the Act; an act towards its commission going beyond preparation; and failure to complete it. The general law contains a parallel provision in Section 62 of the BNS, formerly Section 511 of the Penal Code. |
3. Where Preparation Ends and Attempt Begins
📖 Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698 The Supreme Court held that a person commits an attempt when, having formed the intention and made preparations, he does an act towards the commission of the offence. The act need not be the penultimate act; it is enough that it is done in the course of committing the offence, with the intent to commit it. |
📖 Madan Lal v. State of Jammu and Kashmir, (1997) 7 SCC 677 In a prosecution for attempt to rape, the Court held that the difference between preparation and attempt lies chiefly in the greater degree of determination; to establish an attempt to rape, the prosecution must show that the accused had gone beyond preparation, intending to satisfy his passion at all events and notwithstanding resistance. |
§ Applying the test to sexual offences against children • Mahendra alias Golu (2021). The Supreme Court held that acts of the accused towards a sexual offence against a child, going beyond mere preparation, amounted to an attempt, and set aside a contrary view. • The practical question. Had the accused moved from arranging the means to acting on the child? Touching, undressing or dragging the child with the evident aim of the offence are acts towards commission, not preparation. • Failure from an outside cause after such acts, such as the intervention of others, is the classic case of attempt. • Overlap with completed offences. Acts of contact in the course of the attempt may themselves be sexual assault or aggravated sexual assault, and the charges may be framed together. |
4. The Allahabad High Court Case
📖 In Re: Order Dated 17.03.2025 Passed by the High Court of Judicature at Allahabad, 2026 INSC 165, decided 10 February 2026 The facts alleged. An eleven-year-old girl was offered a lift home on a motorcycle. On the way the accused stopped at a culvert, grabbed her breasts, broke the string of her pyjama, and tried to drag her beneath the culvert, fleeing when passers-by intervened. The trial court. The Special Judge (POCSO), Kasganj, summoned the accused for attempt to rape, read with the POCSO attempt provision. The High Court, 17 March 2025. In revision, it held that these acts were not sufficient to establish an intention to commit rape and were only preparation, and altered the summons to lesser assault offences. The stay, 26 March 2025. On a letter from 'We the Women of India', the Supreme Court took suo motu cognizance, and a Bench of Justice B. R. Gavai and Justice Augustine George Masih stayed the observations, describing them as showing a total lack of sensitivity, as unknown to the tenets of law, and as reflecting an inhuman approach. The judgment, 10 February 2026. A Bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and N. V. Anjaria set aside the High Court's judgment, holding that the alleged acts had gone beyond preparation and made out a case for invoking the offence of attempt to rape, and restored the summoning order. Judicial sensitivity. The Court asked a committee of experts to draft guidelines on sensitivity and compassion for courts in sexual offence cases, having observed that insensitive judicial remarks can have a chilling effect on victims. |
5. Why the High Court Was Wrong
i. It asked the wrong question. Whether the accused had yet done the final act is not the test. The test is whether he had begun the act of committing the offence, with intent.
ii. The acts spoke to intent. Breaking the pyjama string and dragging the child to a concealed place are acts directed at the offence, not at arranging its means.
iii. The offence failed because others intervened, which is the paradigm of attempt, not preparation.
iv. At the summoning stage, the court needs only a prima facie case, not proof of intent beyond doubt; the High Court demanded too much too early.
6. Frequently Asked Questions
What is the difference between preparation and attempt?
Preparation is arranging the means and opportunity for an offence; attempt begins when the accused, with intent, does an act towards its commission. Preparation is not generally punishable; attempt is, under Section 18 of POCSO.
What is the punishment for attempt under POCSO?
Under Section 18, up to one-half of imprisonment for life or one-half of the longest term provided for the offence, or fine, or both.
What did the Allahabad High Court hold?
That grabbing a child's breasts, breaking her pyjama string and trying to drag her beneath a culvert was only preparation, not an attempt to rape.
What did the Supreme Court decide?
It stayed the observations in March 2025, and on 10 February 2026, in 2026 INSC 165, set aside the judgment, held the acts were an attempt, restored the summons, and asked an expert committee to draft guidelines on judicial sensitivity.