1. Respondent was charge-sheeted with the offences punishable under Sections 468, 471, 420 and 201 of the Indian Penal Code in C.C 2 of 1983. He absconded and when arrested and produced, the case was renumbered as C.C 16 of 1983. The Special Judicial First Class Magistrate, Ernakulam discharged him under S. 239. State is challenging the order of discharge. Respondent was a Pre-degree student in the Arts College, Trivandrum during the years 1979–1980 and 1980–1981. He failed with very poor marks. Thereafter he received the marklist from the University and acknowledged the same. With the intention of securing admission to the M.B.B.S Course he prepared a fabricated marklist and destroyed the original. He purchased an application form for admission to the Medical Course and entrusted the same with the marklist prepared by him to CW. 42 for Filling it up. After getting it filled up by Cw. 42 and signed by him, he got prepared a typewritten copy of the false marklist through Cw. 47. He also secured a nativity and income certificate through Cw. 44 and submitted the application with these papers. Then the false marklist prepared by him was destroyed. The name of the respondent was included in the provisional rank list for admission. This is the prosecution version in brief.
2. Before preliminary hearing the respondent sent a petition to the Magistrate by post from jail. He explained in the petition that he had no intention to commit any offence and what he wanted was to make a belief in the parents and the local people that he passed in first class and applied for admission to the medical course but failed to secure admission. He said that for this purpose he sent only a defective and incomplete application thinking that it will be rejected for that reason. His counsel argued for discharge based on this petition and contended that the prosecution records also support his case. The magistrate was persuaded by the arguments supported by the prosecution records and he discharged the respondent by an elaborate order.
3. By a detailed analysis of the prosecution case and the materials placed by it before court in relation to the petition sent by the respondent and the arguments advanced by his counsel on its basis, the magistrate found that (1) in the false mark list prepared by the respondent in his hand there was no seal of the University or the signature of the Controller of Examinations and hence nobody will believe that it is a marklist issued by the university. False document should carry on the face of it the resemblance that it is counterfeit and the mental element is also absent. (2) Prosecution has no case that respondent forged a copy of the marklist received by him from the University and further in the absence of the forged document forgery cannot be found. (3) The conduct of the respondent which he explained in his petition is supported to a certain extent by the prosecution case and its records indicating that his intention was only to make a show of an application and not to secure admission. Various imperfections in the application were relied on this respect, and (4) The prosecution case is that the original marklist and the forged copy of it prepared by the respondent were destroyed by, him. It is therefore difficult to understand that the declaration under the signature of the respondent in the application form that the informations supplied in the application and the enclosures are true cannot stamp the typewritten copy of the marklist as a false document. Even assuming that it is a false document the requisite mens rea is clearly lacking. Therefore the magistrate came to the conclusion that forgery cannot stand and that being so the consequential offences under S. 471, 420 and 201 also cannot be invoked. Charge was therefore found groundless and the respondent discharged.
4. It was argued for the appellant-State that at the time of discharge under S. 239 or framing charge under S. 240 the magistrate is entitled to look into the papers covered by Ss. 173 and 207 alone and it was illegal, to have considered the petition filed by the accused. In order to consider that argument it is not necessary to decide whether any document other than those mentioned in S. 207 or 173 could be looked into at that stage. The petition is not a new document and it need be treated only as disclosing a line of argument. There is nothing illegal in having considered it.
5. But I fear that the magistrate has exceeded the limits of S. 239. What is required at that stage is a consideration whether there is ground for presuming commission of the offence or whether the charge is groundless. Over and above the examination of the accused, which is within his discretion, what the magistrate has to do is to hear both sides and consider the police report and the documents sent with it under S. 173. All that is required at that stage is to see whether a prima facie case regarding the commission of certain offences is made out. The question whether the charge will eventually stand proved or not can be determined only after evidence is recorded in the case. The case itself cannot be decided on the merits without giving the prosecution an opportunity to adduce evidence against the accused. Surmises and assumptions at that stage without the assistance of evidence will lead to failure of justice. Passing an order as if it is a full-fledged judgment of acquittal rendered on appreciation of evidence will be illegal, at that stage (State of Himachal Pradesh v. Krishnan Lal Pardhan ((1987) 2 SCC 17 : AIR 1987 SC 773).
6. It is true that S. 239 invest the magistrate with the jurisdiction of discharging the accused in an appropriate case. But that right must be judicially exercised. A roving enquiry into the merits and demerits in detail to decide whether a particular charge will ultimately stand scrutiny or not cannot be had. The court is only considering the materials as it is without assessing their acceptability during trial. The assessment will be on the assumption that they are correct and they will be properly proved in the case. Evaluation of the evidence will be only at the stage of trial. The expression “legal evidence” is not appropriate at that stage when the magistrate has only to make up his mind to frame charge or discharge the accused. The materials placed then will not have the status of evidence. The prosecution merely represents that the person whose statements were recorded and considered may be expected to depose to the facts. The evidence during trial need not always be confined to matters collected during investigation and presented before court. In appropriate cases new materials could be introduced with permission of court after avoiding prejudice by informing the accused before hand. The powers of Court under S. 311 Cr. P.C is also there.
7. A final order of discharge can be passed only when after considering the materials it is found that there is no legal evidence in support of the charge and also that the facts alleged do not disclose any offence at all. If the facts disclose any other offence not mentioned in the charge the court can frame charge for that offence. ‘Ground’ must be taken as ‘basis’, “foundation” or “valid reason”. If the materials considered in the light of the arguments advanced and the examination of the accused, if recorded, furnish a reasonable basis or foundation for believing that an offence has been committed, a charge will have to be framed. The magistrate cannot sit in judgment as to whether the accused could be convicted. Even if there is a lacuna which could be filled in at a later stage of the trial, if law so permits, it will not be open to the magistrate to record an order of discharge. Charge used in S. 239 is only in the sense of “allegation” or “accusation”. Elaborate examination of the statements recorded during police investigation is not warranted by S. 239 Jurisdiction does not extend to weighing evidence. It is not open for consideration whether the materials will stand the scrutiny of a cross-examination. The acceptability of the materials as proof cannot be tested in the light of some other facts which could be later explained. Presumptions on the basis of omissions or ambiguities which are capable of explanation also cannot be drawn. For the purpose of that stage in order to frame charge or discharge the accused the materials will have to be accepted as correct whatever may be the decision after trial. Unless the records before the magistrate disclose no basis or foundation for farming a charge, he cannot discharge. That is only a fluid stage and evidence during trial has only to take shape thereafter. ‘Groundless’ has to be taken as meaning that there is no ground at all for presuming and it does not mean absence of reasonable ground to expect a conviction.
8. Viewed in the light of these legal principles there are reasons to think that the magistrate has transgressed his limits. He has written an elaborate order covering 14 typed pages. It is practically a detailed judgment of acquittal. Acceptability of the materials collected during investigation at a future stage during trial in the light of the defence raised in the petition and the possibility of those materials becoming insufficient to sustain the charge were also considered in taking the decision. The possibility of the application for admission containing wrong informations not liable to be accepted in support of the prosecution case and the marklist not being accepted as forgery were also considered in the light of the defence taken in the petition. Many other considerations which ought not have weighed at that stage entered the judicial mind in taking the decision to order discharge. In short, many aspects which ought to have been considered only at the trial were considered and decided without affording the prosecution an opportunity of adducing evidence and evaluating the same. For these reasons, I could have set aside the order and directed the magistrate to reconsider the matter, or ordered charge to be formed.
9. Now it is nearly eight years since the commission of the alleged offence. The prosecution admits that the original marklist received by the respondent and the marklist alleged to be prepared by him were destroyed and not available. The mark list sent along with the application is only a typed copy which do not bear the seal or signature of anybody. The only evidence now alleged to be available are the declaration of the respondent in the application under his signature that information are correct and the true marks available with the University. From the materials placed by the prosecution before Court, there are ample circumstances indicating that the respondent did not mean the application seriously Many informations and documents were not given and many supplied were defective. The respondent did not secure admission and his future is lost. He is a poor boy belonging to the Scheduled Caste. Though not a relevant consideration at this stags, the possibility of conviction after trial is remote. The possibility that the respondent did not intend commission of any offence for the purpose of securing admission is also there. In these circumstances, I do not think that ends of justice require a trial after framing charge.
10. The Criminal Revision Petition is therefore dismissed.
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