Know About – ‘Preparation’ for Rape vs ‘Attempt’ to Commit Rape

Introduction
The legal distinction between “preparation” and “attempt” is a critical facet of criminal law, especially in cases involving sexual offences. Recent judicial observations and subsequent interventions by the Supreme Court have brought this issue into the spotlight, showcasing how courts grapple with determining at what point an accused’s actions move from mere preparation to actual attempt. This question becomes even more sensitive and significant in cases involving minors under the Protection of Children from Sexual Offences (POCSO) Act, 2012.

In March 2023, the Allahabad High Court delivered a judgment asserting that grabbing the breasts of a minor child and breaking the string of her pyjama amounted only to “preparation,” and hence did not constitute “attempt to rape.” The Supreme Court swiftly stayed this ruling, emphasizing that such observations demonstrated a “lack of sensitivity.” The legal community has since revisited jurisprudential nuances on what exactly constitutes “attempt” rather than “preparation.” This discussion is particularly relevant for CLAT aspirants, who need to understand the broad principles underlying criminal liability.

Why in News

1. Allahabad High Court Order: The High Court, in its order dated March 17, 2023, held that the allegations against the accused in a case involving a minor child under POCSO did not rise to the level of “attempt to rape.” Instead, it argued that the acts merely amounted to “preparation” and thus warranted lesser charges.
2. Supreme Court Intervention: The Supreme Court stayed the High Court’s ruling, underscoring that it showed insensitivity toward a grave offence involving a minor. The Supreme Court called for maintaining the charges of “attempt to commit rape,” highlighting the need for a more nuanced understanding of the boundary between preparation and attempt.

Point-wise Summary

1. Facts of the Case
   • Incident: A minor child and her mother, while travelling on a motorcycle, were allegedly stopped by the accused persons who forcibly grabbed the child’s breasts, dragged her, and reportedly tried to take her beneath a culvert.
   • Initial Charges: A POCSO court ordered that the accused be tried under Section 376 of the Indian Penal Code (IPC) (pertaining to rape) and Section 18 of the POCSO Act (punishment for attempt to commit an offence).
   • High Court Ruling: The Allahabad High Court set aside these charges for attempt to rape, stating that the alleged acts amounted only to “preparation,” not the actual “attempt,” effectively bringing down the gravity of charges to either assault under Section 354(b) IPC or sexual assault under the POCSO Act.
2. Supreme Court’s Response
   • Stay on HC Order: The Supreme Court noted that the High Court’s view reflected insensitivity. A Bench of Justices B.R. Gavai and A.G. Masih stayed the HC order.
   • Reasoning: The Supreme Court underscored that the acts of grabbing the breasts of a minor child and breaking the string of her pyjama were serious enough to be considered an attempt to commit rape, and not merely an act of preparation.
3. Legal Distinction: ‘Preparation’ vs ‘Attempt’
   • General Principle: In criminal law, “attempt” begins where “preparation” ends. Preparation covers the initial planning and arrangement of resources to commit a crime, whereas attempt involves putting that plan into action in a manner proximate to the crime.
   • Case References:
     • Abhayanand Mishra v. State of Bihar (1961): The Supreme Court held that for an act to be deemed an “attempt,” the prosecution must establish (a) intention to commit the offence, (b) preparation to commit the offence, and (c) an overt act that goes beyond mere preparation.
     • State of Maharashtra v. Mohd. Yakub (1980): The Court articulated that an accused can be guilty of attempt only if their actions are the penultimate step towards committing the crime.

4. Standard Applied by the High Court
   • The High Court primarily relied on older case law, including an English precedent (Rex v. James Lloyd, 1836), which warned against conflating indecent assaults with attempts to commit rape.
   • The HC concluded that the prosecution had not demonstrated a sufficiently close nexus between the accused’s acts and the final commission of rape, arguing the actions did not constitute the “penultimate” move.
5. Supreme Court’s Concern over ‘Lack of Sensitivity’
   • Minor Victim: The SC bench noted that such interpretation disregarded the vulnerability of the victim, a child, and the context in which these events unfolded.
   • Grave Offence: The seriousness of the alleged acts—grabbing and physically restraining a minor—cannot be dismissed as mere preparation.
6. Relevance of Section 18 POCSO
   • Under the POCSO Act, Section 18 penalizes attempts to commit offences listed in the Act (which includes rape and aggravated sexual assault).
   • The SC’s stay ensures that the accused remains charged for attempt under POCSO, rather than a lesser offence such as a non-penetrative sexual assault.
7. Implications for Future Cases
   • Clarity on Threshold: The debate reiterates the importance of establishing the threshold between preparation and attempt, particularly in sexual offences against minors.
   • Prosecutorial Burden: Prosecutors need to demonstrate that the accused intended the crime and engaged in a step sufficiently close to its completion.
8. Other Relevant Provisions
   • Section 354(b) IPC: Pertains to assault or use of criminal force to a woman with the intention of disrobing or compelling her to be naked.
   • Punishment: Carries a sentence of one to five years’ imprisonment.
9. Judicial Observations on Indecent Assault and Attempt to Rape
   • The Supreme Court has repeatedly cautioned that indecent assault can quickly escalate to attempted rape if the intention to commit rape can be inferred from the accused’s conduct.
   • Courts must examine the context, the proximity of the act to commission of the offence, and the accused’s clear intention.

• Conclusion for CLAT Aspirants

• Understanding the nuances of “preparation” vs “attempt” is vital, as it has bearing on the quantum of punishment and the seriousness with which the crime is treated.
• The SC’s intervention shows that courts adopt a victim-centric approach, especially in POCSO cases.

Notes (Explanations of Peculiar Terms)

1. ‘Preparation’ in Criminal Law
   Preparation refers to the initial stages of planning or arranging the means and resources to commit a crime. Although crucial to proving criminal intent, acts of preparation by themselves do not generally incur liability for the full offence, unless the law expressly states otherwise.
2. ‘Attempt’ in Criminal Law
   An attempt is an overt act that goes beyond mere preparation. It demonstrates a direct movement towards the commission of the crime, so closely connected with the final act that the crime would have been completed had circumstances not intervened.
3. ‘Penultimate Act’
   This term describes the final step or one of the final steps that directly leads to the commission of a crime. If an accused’s actions are at the “penultimate act,” they are usually considered to have attempted the offence.
4. POCSO Act, 2012
   The Protection of Children from Sexual Offences (POCSO) Act is a special law in India that provides enhanced protection to children against sexual abuse. It imposes stringent punishments and ensures child-friendly procedures.
5. Section 376 IPC
   This section deals with the offence of rape. Attempt to commit rape also falls within its ambit, subject to certain provisions.
6. Section 354(b) IPC
   This provision addresses assault or use of criminal force on a woman with the intention of disrobing or compelling her to be naked. It is considered a serious offence but distinct from attempt to rape.
7. Burden of Proof
   In criminal cases, the prosecution bears the burden of establishing every element of the crime—intention, preparation, and the commission or attempt thereof—beyond a reasonable doubt.

Final Observations for CLAT 2026

For aspirants preparing for the Common Law Admission Test (CLAT) 2026, it is crucial to grasp the interplay between “preparation” and “attempt” because it is a core element across multiple criminal offences. Understanding statutory provisions, judicial precedents, and the factual matrix of cases is essential. Keep track of evolving jurisprudence, especially with respect to sexual offences under POCSO, as courts continue to refine the contours of what constitutes an “attempt.” This recent development also underscores the Supreme Court’s commitment to safeguarding minors and interpreting criminal provisions in a manner that is sensitive to the rights and dignity of the victim.