1. - This revision petition has been tiled against the order dated 14.05.2012 passed by the learned Special Judge (Women Atrocities and Dowry Cases), Jaipur City, Jaipur whereby charges have been framed against the present petitioner.

2. The short facts of the case are that Poonam Kumari filed written report at Police Station Gandhi Nagar, Jaipur, which was registered as FIR No.289/2011 for the offences under Section 376 read with Sections 511, 292 and 341 IPC and Section 4/6 of Indecent Representation of Women (Prohibition) Act, 1986 and Section 67 of the I.T.Act against the present petitioner and other co-accused. After usual investigation, the police filed charge-sheet against the present petitioner for the above offences and against co-accused under Section 354 IPC. The case was committed to the Court of Sessions and the present petitioner has been charged as above.

3. The contention of the present petitioner is that charges under Section 376 read with Section 511 IPC and Section 67 of the Information Technology Act are not made out by the bare perusal of the evidence available on record. There is no allegation of the prosecutrix that present petitioner has attempted to commit rape on her and there is no evidence of publication of any obscene material in electronic form and hence these charges should be quashed.

4. The contention of the respondent is that looking to the previous conduct of the present petitioner and overt act of catching hold of the prosecutrix, he kissed the prosecutrix and also told her that she has to sleep with him, are sufficient to charge the present petitioner under Section 376 read with Section 511 IPC and his further contention is that at the stage of charge, the court will not go into niceties of the evidence and the minute weighing of the evidence is not permissible.

5. It is true that at the time of framing of the charges, the only consideration is whether there is sufficient ground for proceeding against the accused and the question is whether material available on record, if remains un-rebutted, then their conviction can be reasonably possible. But, at the same time, the court should consider the evidence available before it with judicial mind that whether there is any prima facie evidence to charge a person for a particular offence and reliance has been placed on State of Karnataka v. L.Muniswamy & Ors., 1997 (2) SCC 699 , wherein it has been held as under:

"Also it is wrong to say that at the stage of framing charges, the court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. The order framing a charge affects a person's liberty substantially and, therefore, it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial."

6. There is no dispute about the legal position. In the light of the above, if we consider the present case, there is no evidence regarding attempt to rape on the prosecutrix. The prosecutrix has stated that the present petitioner and other co-accused used to touch her body and she felt uncomfortable by their looks. Further, she has stated that the present petitioner has tried to kiss her. He caught hold of her and he kissed her and told her that she has to sleep with him. No overt act for the commission of the rape has been made by the present petitioner and to charge a person for the attempt of an offence, it is necessary that overt act should be sufficiently proximate to its commission to constitute an attempt. Here, in the present case, there is no such proximate act committed by the present petitioner. Reliance has been placed on G.V. W. Jones v. King Emperor, (1925 Rangoon 247) , wherein distinction between attempt to commit rape and preparation to commit rape has been considered and it has been held as under:

"If an act whic