The determination of whether an act constitutes an attempt to commit rape or a criminal assault hinges on the accused's degree of determination to gratify his passions despite resistance.

( 1 ) THIS is a revision by the State of Madhya Pradesh against the order of the Additional Sessions Judge, Khandwa, setting aside the order of conviction of the non-applicant under Section 354, I. P. C. , and quashing the entire proceedings as incompetent.

( 2 ) THE facts of the case are that on 21-8-1955 Mst Jasso (P. W. 6) was in her bada some time in the afternoon. The accused jumped over the fence and tried to seduce her for intercourse. The prosecutrix Mst. Jasso repelled his advances, which made him furious. He caught hold of her and assaulted her with a stick. He fell her down on the ground forcibly, snatched her lugda and thereby made her naked. Her cries attracted her uncle who came to the spot. On seeing him, the accused fled away.

( 3 ) A report of this incident was made to the police and a challan was accordingly put up before the Magistrate, 2nd Class. The case was, however, transferred to Shri G. P. Pateriya, Judge Magistrate First Class, who convicted the accused under Section 354, I. P. C. , and sentenced him to six months' rigorous imprisonment. In appeal, the learned Additional Sessions Judge held that the offence disclosed amounted to an offence of attempt to commit rape and therefore cognizance could not be taken by the Magistrate 2nd Class initially; and trial subsequently by the Magistrate 1st Class is also bad. The offence, according to him, was triable by the Court of Session and, therefore, the Magistrate had no jurisdiction to try it. The learned Additional Sessions Judge set aside the conviction of the accused, but recorded no opinion as to his guilt, keeping it open for the Court having jurisdiction to decide. The State has filed this revision petition against that order.

( 4 ) THE question, therefore, is whether the order of the Additional Sessions Judge is bad and the case should be tried afresh.

( 5 ) THE facts stated above are also mentioned in the first information report. The challan was out up by the police under Section 354, I. P. C. Admittedly, from the facts stated above, it is clear that it is not an offence of rape. The question is whether it was an attempt to commit rape or a criminal assault. The distinction between the two is sometimes very meagre. In Rex v. James Lloyd, (1836) 7 C and P 317 : 173 ER 141 while summing up the charge to the jury, Justice Patterson observed : "in order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. " In Empress v. Shankar, ILR 5 Bom 403 the accused was charged for an attempt to commit rape. There the observations of M. Melvill J. , which are quoted below, are very pertinent : "we believe that in this country indecent assaults are often magnified into attempts at rape, and even more often into rape itself; and we think that conviction of an attempt at rape ought not to be arrived at unless the Court be satisfied that the conduct of the accused indicated a determination to gratify his passions at all events, and in spite of all resistance. " In the present case, from the facts by the trying Magistrate and in the first information report, it is seen that the girl was made naked. There is no other action on the part of the accused. It is quite possible that ultimately he would not have proceeded to have sexual intercourse on account of her unwillingness. If the dictum of Justice Patterson in the above cited case is followed I cannot see from the prosecution case that the accused was determined to have sexual intercourse at all events, because as soon as he saw the uncle of the prosecutrix, he ran away. For an offence of an attempt to commit rape, the prosecution must establish that it has gone beyond the stage of preparation. The difference between mere preparation and actual attempt to commit