GARG, J. - (1.) THIS revision petition has been filed by the complainant-petitioner against the order dated 31. 8. 2000 passed by the learned Judicial Magistrate 1st Class, Bar, Dist. Pali in criminal Case No. 347/96 by which the learned Magistrate after hearing the arguments on charge discharged the accused respondents No. 2 and 3 for offences under Sections 467, 468, 471 and 120-B I. P. C.
(2.) IT arises in the following circumstances: On 8. 6. 96, the petitioner Madan Lal lodged a written report with the Police Station, Raipur, Dist. Pali inter alia stating that on 4. 6. 96 when he was present at the first floor of his house situated on Pali road, at that time, the accused respondents Om Prakash and Madhuram came there and started throwing all the articles outside from his hut and tried to encroach on the plot of the complainant-petitioner. IT was further stated in the report that accused respondent Om Prakash and Madhuram further told him that they were having patta of that plot since 1982, upon this the complainant-petitioner became suspicious about the genuineness of the patta. On this report, a case under the aforesaid Sections was registered and investigation commenced. During investigation, the police came to the conclusion that though patta which was issued in favour of the complainant- petitioner was not according to law, but patta which was alleged to have been issued in favour of accused-respondent was found forged one and thus, after usual investigation, a challan for the aforesaid offences was filed. By order dated 31. 8. 2000, the learned Judicial Magistrate discharged the accused respondents for offence under Sections 467, 468, 471 and 120-B I. P. C. holding that the then Sarpanch accepted his signatures on the so called patta and further he came to the conclusion that there is no evidence on the record to prove the fact of forgery and for the sake of argument, if it was found that patta of accused respondents was forged one, all the same, the same was not used in any manner and, therefore, no offence was committed by the accused respondents and thus he discharged the accused respondents. Before proceeding further it may be stated here that the challan was filed by the police against the accused respondents and trial of warrant case instituted on police report was to be conducted by the learned judicial Magistrate and for that procedure is provided in Section 238 Cr. P. C. and onwards. When an accused can be discharged in warrant trial instituted on police report, for that Section 239 may be referred to.
(3.) SECTION 239 Cr. P. C. authorises a Magistrate to discharge the accused if he considers the charge against him to be groundless. Under SECTION 240 before the charge is framed, Magistrate must entertain the opinion that there is ground for presuming that the accused has committed an offence. In the context, the word "ground" must be taken to have been used in its ordinary dictionary sense "meaning basis", "foundation" or "valid" reason. If the documents, examination of accused and the arguments of the parties referred to in SECTIONs 239 and 240 furnish reasonable basis or foundation for presuming that the accused has committed an offence, the Magistrate shall frame a charge against the accused. If, on the other hand, they furnish no reasonable basis or foundation for the charge against the accused, he should discharge him. The word "groundless" would certainly mean the absence of reasonable ground to expect a conviction. It may be that at the trial the materials on the basis of which a charge has been framed may not stand the test of cross-examination or is rendered unacceptable, but these considerations become available only at the conclusion of the trial and do not enter into consideration at the stage when the Magistrate has to make up his mind as to whether or not he should frame a charge. The only question, therefore, is whether the materials considered by the Magistrate could lead to the view that the charge against the accused is groundless and in these circumstances he can be discharged. That apart the Hon'ble Supreme Court in the case of State of Tamilnadu vs. Jayalalitha (1), has held that state of framing of charge is not the stage for weighing the pros and cons of all the implications of the materials nor for sifting the materials presented by the prosecution. The exercise at this stage should be confined to considering the police report and the documents to decide whether the allegations against the accused are "groundless" or whether "there is ground for presuming that the accused has committed the offences. " Presumption therein is always rebuttable by the accused for which there must be opportunity of participation in the trial. Thus, it can be concluded that the accused can be discharged in a warrant case instituted on police report when charge is found groundless otherwise not. In this respect, it may further be stated here that a distinction has been drawn by the Legislature between the cases instituted on the police report and otherwise than on police report. For the cases instituted otherwise than on police report, Section 245 (1) Cr. P. C. may be referred to, which provides that if, upon taking all the evidence referred to in Section 244 Cr. P. C. the Magistrate considers, for the reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. Thus, in the cases instituted otherwise than on police report for framing charges, strong case has to be proved. But in the cases instituted on police report, the position is otherwise. ;