Judgment On a complaint made by the 1st respondent the petitioner was charged for an offence under section 354, Indian Penal Code, by prosecution in C.C.No.72/82 on the file of the Judicial II Class Magistrate, Keeranur. The learned Magistrate after trial acquitted the petitioner. As against the order of acquittal the complainant filed Criminal Revision Petition No.17 of 1983, on the file of the Sessions Judge of Pudukkottai. The learned Sessions Judge after perusing the records set aside the order of the learned Magistrate and remitted the matter back to the Magistrate, directing him to examine the case and see whether the offence complained of will be one under section 376 read with section 511, Indian Penal Code. This Crl. Mis. Petition filed by the accused against the order of the learned Sessions Judge. 2. The facts of the case are briefly as follows; According to P.W.1, a girl aged 14 years, when she was going to her school on 20th January, 1982 at 1.30 p.m., the petitioner who is a teacher, called her, dragged her by hands, made her lie down by pressing her hip and outraged her. The police after investigation registered a case under section 354, Indian Penal Code, and the learned Magistrate after examining the victim as P.W.1 and her mother as P.W.2 came to the conclusion that the offence is not made out and acquitted the petitioner. As against the said order a revision petition was filed before the Sessions Judge, Pudukkottai in Crl.R.C.No.17/83 in which the learned Sessions Judge after perusing the records disagreed with the finding of the learned Magistrate and came to the conclusion that the matter will have to be gone into afresh. While coming to the conclusion the learned Sessions Judge felt that the offence may fall under section 376 read with section 511, Indian Penal Code, and also directed the lower Court to examine the same. 3. The petitioner contends that the order of the learned Sessions Judge is not sustainable for the following reasons: “1. The Sessions Judge while ordering retrial ought not to have directed the lower Court to examine the question whether the offence will be one under section 376 read with section 511, Indian Penal Code. 2. 3. The petitioner contends that the order of the learned Sessions Judge is not sustainable for the following reasons: “1. The Sessions Judge while ordering retrial ought not to have directed the lower Court to examine the question whether the offence will be one under section 376 read with section 511, Indian Penal Code. 2. In any event the evidence in the case does not make out a case of attempt to rape punishable under section 376 read with section 511, Indian Penal Code.” 4. Mr. Santhanam, learned Advocate for the respondents, takes a preliminary objection that this petition under section 482, Criminal Procedure Code, is not maintainable since the petitioner has got a right of revision against the judgment of the Sessions Judge, Pudukkottai. 5. The first contention of the petitioner relates to the exercise of power by the Sessions Judge in a criminal revision petition. Section 399, Criminal Procedure Code, states that in the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of section 401. Under section 401, Criminal Procedure Code, the High Court can exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391, Criminal Procedure Code. Under section 386(b)(i), Criminal Procedure Code, the Court is empowered to reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction. In view of the above provision Sessions Court has got the power to order retrial. But the question is whether while directing a retrial the Sessions Court can ask the trial Court to examine the question whether the offence complained of is one under section 376 read with section 511, Indian Penal Code. In a case like this what is the section of the Indian Penal Code that is attracted is a matter to be decided with reference to the facts of the case. Even if a charge is laid on a wrong section it is open to the Court trying the offence to convert it into one under a right section. That power is available to both the trial Court as well as the revisional Court. Even if a charge is laid on a wrong section it is open to the Court trying the offence to convert it into one under a right section. That power is available to both the trial Court as well as the revisional Court. Under the circumstances, the petitioner cannot have any grievance against the direction made by the Sessions Judge. 6. The second point urged by the petitioner is that on the evidence an offence under section 376 read with section 511, Indian Penal Code, is not made out. In the case reported in state v. Babulal, A.I.R. 1960 M.P. 155, the distinction between the attempt to commit rape and indecent assault is discussed. According to the single Judge of the Madhya Pradesh High Court for an attempt to commit rape there should be some action on the part of the accused which would show that he is just going to have sexual connection with the prosecutrix. For an offence of attempt to commit rape the prosecution must establish that it has gone beyond the state of preparation, the difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination. The contention of the petitioner’s Counsel is that the evidence of P.W.1 that the petitioner dragged her by hands, pushed her hip to make her lie down and outraged her will not constitute an offence of attempt to rape punishable under section 376 read with section 511, Indian Penal Code. Merely because the learned Sessions Judge asked the lower Court to see whether the section is attracted, the lower Court is not going to come to a conclusion that an offence is made out. The lower Court will properly consider the evidence and see whether an offence under section 376 read with section 511, Indian Penal Code is made out of an offence under section 354, Indian Penal Code is made out. The grievance of the petitioner is that the observation of the learned Sessions Judge may prejudice the lower Court. There is no room for any such apprehension. The observation made by this Court also will not prejudice the merits of the case before the trial Court. The grievance of the petitioner is that the observation of the learned Sessions Judge may prejudice the lower Court. There is no room for any such apprehension. The observation made by this Court also will not prejudice the merits of the case before the trial Court. Hence so far as the second contention is concerned it is for the trial Court to examine the evidence and come to a conclusion and it is not possible for this Court at this stage to give a finding as to the nature of the offence. Hence the second contention of the petitioner is also negatived. 7. The learned Advocate for the respondent contends that when a revision is available to the petitioner, the above Criminal Miscellaneous Petition is not sustainable in law. The learned Advocate for the petitioner requests that this petition may be treated as criminal revision petition. In view of this request the contention of the learned Counsel for the respondent need not be considered. Consequently this petition is dismissed.