SC criticises Patna HC ruling that removing salwar does not constitute rape attempt

The Supreme Court on Friday (October 9, 2026) took exception to a recent High Court judgment, which held that removing a woman’s salwar and pressing her chest did not amount to an attempt to rape. The court issued notice to the accused, who had been acquitted of the charges against him.

A Bench headed by Chief Justice of India (CJI) Surya Kant was hearing a suo motu case concerning the High Court ruling, which had held that removing a woman’s salwar and pressing her chest did “not unequivocally establish” an attempt to rape and could, “at best”, constitute assault or use of criminal force with intent to outrage a woman’s modesty under Section 354 of the Indian Penal Code (IPC).

“What line [the] Patna High Court used is something very shocking,” the Chief Justice remarked. The Bench, also comprising Justices Joymalya Bagchi and V. Mohana, issued notice to the accused, Himanshu Pathak, observing that the outcome of the proceedings could have a bearing on his rights.

Senior advocate Shobha Gupta, who had brought the High Court judgment to the Supreme Court’s attention, questioned the use of the word “preparation” in judicial orders to describe sexual acts falling short of penetration. She also drew the court’s attention to other recent High Court rulings which, she submitted, contained objectionable and insensitive language while referring to victims of sexual offences.

The Bench said it would examine the submissions.

The trial court had convicted Pathak under Sections 376 read with 511 of the IPC for attempting to commit rape and sentenced him to three years’ rigorous imprisonment along with a fine of ₹5,000. He was also sentenced to six months’ imprisonment under Section 342 for wrongful confinement, with both sentences to run concurrently.

According to the prosecution, the incident occurred on January 19, 2008, when the woman accompanied her father to Chhaya Studio in Amarpur to have her photograph taken. The accused, who owned the studio, allegedly asked her father to wait outside on the pretext of showing her the photograph on a computer. Once they were alone, he allegedly locked the door, tried to remove her salwar, undressed himself and sexually assaulted her. Hearing her cries, her father broke open the door, after which the accused allegedly escaped. An FIR was registered the following day.

The High Court, however, found an “absence of any evidence of penetration, even to the slightest extent, or any overt act unequivocally constituting an attempt to commit rape”, and held that the ingredients necessary to sustain the conviction under Sections 376 read with 511 of the IPC were not made out.

It instead found that the alleged acts of confining the woman inside the studio, shutting the door, attempting to remove her salwar and pressing her chest attracted the offence under Section 354 of the IPC. “These acts clearly establish the use of criminal force upon a woman with the intention, or at least the knowledge, that such acts were likely to outrage her modesty, thereby satisfying the essential ingredients of Section 354 IPC,” the High Court had held.