The Supreme Court on September 23, 2026 took suo motu cognizance of a Patna High Court judgment that held that allegations of attempting to remove a woman's salwar and pressing her chest did not, on the evidence before it, establish an offence of attempt to rape. The Supreme Court Bench expressed concern over certain observations in the judgment and directed that the accused be served before any further order is passed.
A Bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana registered the suo motu proceedings in In Re: Order Dated 09.07.2026 Passed By The High Court of Judicature at Patna in Criminal Appeal (SJ) No. 775/2013 and Ancillary Issues, registered as SMW(Crl) No. 5/2026.
During the hearing, CJI Surya Kant told Bihar Advocate General S.D. Sanjay, "There are some offending observations." The Chief Justice further made it clear that the High Court judgment could be interfered with only after the accused was heard and directed that service be effected through the local police.
Background
The Patna High Court judgment arose from a 2008 incident at a photographic studio in Banka district. The prosecution case was that the accused, Himanshu Kr. Pathak @ Mithiya Pathak, had taken the woman inside the studio, asked her father to remain outside and then closed the door. The woman alleged that he attempted to remove her salwar and physically molested her by pressing her chest.
The trial court had convicted him under Sections 376 read with 511 and Section 342 of the Indian Penal Code and imposed a three-year rigorous imprisonment sentence for the attempt-to-rape charge. He challenged the conviction before the Patna High Court.
Justice Purnendu Singh examined the prosecution evidence and noted that five witnesses had been examined. The Court also noted that the investigating officer who completed the investigation and submitted the charge-sheet was not examined, while no medical officer was produced to provide medical evidence supporting the allegation of attempted rape.
The High Court drew a distinction between an attempt to commit rape and an act amounting to outraging a woman's modesty. It held that the evidence did not establish penetration or an overt act unequivocally constituting an attempt to commit rape.
The Court observed,
"I find that the appellant used criminal force against the victim by confining her inside the studio, closing the door, attempting to remove her salwar, and physically molesting her by pressing her chest."
The High Court ultimately held that the evidence attracted Section 354 IPC rather than Section 376 read with Section 511 IPC. It set aside the trial court's conviction and sentence and acquitted the appellant of the charges.
The Patna judgment was subsequently brought to the Supreme Court's attention during proceedings concerning judicial handling of sexual-offence cases. Senior Advocates Shobha Gupta and H.S. Phoolka pointed out that the Patna judgment contained observations similar to those that had earlier come under scrutiny before the Supreme Court.
The Supreme Court has now registered the suo motu case and directed service on the accused. CJI Surya Kant stated, "We will be able to set aside only after hearing the accused," making clear that the accused must be given an opportunity to be heard.
The Supreme Court has therefore not yet finally determined the correctness of the Patna High Court's reasoning or its ultimate outcome. The matter will proceed after the accused is served.
The Supreme Court registered SMW(Crl) No. 5/2026, took suo motu cognizance of the Patna High Court judgment dated July 9, 2026, and directed that notice be served on the accused through the local police before further consideration of the matter.
