RAM BINOD YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD Mr. Sajjid Salim Khan, learned counsel for the petitioner, Mr. Shivendra Kumar Sinha learned counsel for the Opposite Party No. 2 as well as Mr. Jharkhandi Upadhayay, for the State.

(2.) THE petitioner has preferred an application under Section 228 of the Code of Criminal Procedure before the Court below seeking remittance of the case back to the learned Chief Judicial Magistrate for trial as from the documents and the materials available on record, he could not have been charged for the offence under Sections 376/511 (Sessions Trial 319 of 2009) but only under Section 354 of the Indian Penal Code. The Court below rejected such prayer.

(3.) THE allegation in the First Information Report is that the petitioner alongwith another person scaled over the wall and entered into the Courtyard of the Opposite Party No. 2. This was done in the dead of the night on a rainy day and, as alleged, overt acts were committed by the petitioner and his associate which amounted to an attempt for committing rape with the Opposite Party No. 2. Pursuant to such FIR, investigation proceeded whereafter charge sheet was submitted and cognizance was taken under Sections 376/511 of the Indian Penal Code.