Point of Law: word "ground" according to Black's Law Dictionary, Black's Law Dictionary, 9th Edition connotes foundation or basis, and in the context of prosecution in a criminal case, it would be held to mean basis for charging the accused or foundation for the admissibility of evidence.

JUDGMENT :

1. Heard Sri R. N. Tripathi, holding brief of Sri Kamlesh Kumar, learned counsel for the revisionist and Ms. Sushma Soni, learned Additional Government Advocate appearing for the State-opposite party.

2. The present revision has been filed against the judgment and order dated 26.10.2021 passed by the learned Additional Chief Judicial Magistrate, Room No.18, Allahabad in Criminal Case No. 762 of 2015 (State vs. Ajeet Singh), whereby the learned Additional Chief Judicial Magistrate, Room No.18, Allahabad rejected the application under Section 239 Cr.P.C. filed by the revisionist.

3. Pleadings in the case indicates that the proceedings in the criminal case were initiated pursuant to an FIR lodged on 20.06.2014 registered as Case Crime No. 149 of 2014, under Section 354 of the Indian Penal Code, 1860, The Penal Code and upon investigation a police report under Sections 354B, 506 of the Penal Code was placed before the Magistrate. The opposite party no.2 in her statement under Section 161 of the Code of Criminal Procedure, 1973, The Code, reiterated the FIR version. An application for discharge under Section 239 of the Code was moved primarily seeking to contend that there was variance in the statements of the opposite party no.2 under Section 161 and Section 164 of the Code with the F.I.R. version, and accordingly the testimony of the opposite party no.1 was sought to be impeached and discharge was sought.

4. The learned Magistrate on considering the facts and circumstances of the case and material on record and the scope of powers to be exercised under Section 239 of the Code, has held that only in a case where the police report submitted under Section 173 of the Code along with the material evidence and documents appended therewith indicate that there is no material to initiate proceedings that the Magistrate can pass an order of discharge. In the facts of the case the learned Magistrate has held that the minor variation in the statements recorded under Sections 161 and 164 of the Code to contradict the FIR version would not be material inasmuch as the FIR is not supposed to be an encyclopedia of facts.

5. Counsel for the applicant has sought to assail the order passed by the court below by seeking to point out the discrepancy between the statements of the prosecutrix recorded under Sections 161 and 164 of the Code and by asserting that the same are in contradiction with the FIR version. Learned Counsel has also referred to the factual aspects of the case and the defence which is to be set up on behalf of the applicant.

6. Learned Additional Government Advocate submits that at the stage of consideration of discharge under Section 239 of the Code only a prima facie case is to be seen and the Magistrate having recorded a satisfaction with regard to the existence of a prima facie case there cannot be said to be any material error or illegality in the order which is sought to be assailed.

7. In order to appreciate the rival contentions the relevant statutory provisions may be adverted to. The procedure for trial of warrant cases by Magistrate is provided for under Chapter XIX of the Code and Sections 239 and 240 relate to discharge and framing of charge.

8. The primary consideration at the stage of framing of charge is the test of existence of a prima facie case, and at this stage, probative value of materials on record are not to be gone into.

9. The provisions which deal with the question of framing of charge or discharge, relatable to : (i) a sessions trial or, (ii) a trial of warrant case, or (iii) a summons case, are contained in three pairs of sections under the Code. These are Sections 227 and 228 in so far as, sessions trial is concerned; Sections 239 and 240 relatable to trial of warrant cases; and Sections 245 (1) and 245(2) in respect of summons case. The relevant provisions read as follows:-

“227. Discharge.—If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the sub