Judgment : These two revisions are directed against the orders of discharge by the learned Judicial Magistrate, Padmanabhapuram, under Sec. 239 of Criminal Procedure Code in Criminal Miscellaneous Petition No. 5719 of 1991 and Calender Case No. 126 of 1991. As the learned. Judicial Magistrate, Padmanabhapuram allowed the petition to discharge the accused and the calender case also was ordered discharging the accused, these two revisions have been filed separately against the orders of the learned Judicial Magistrate. 2. The respondents herein have been alleged for the commission of the offences under Secs. 323 and 325 on 37. 1990 at 8.00 p.m. and though a complaint was launched in the Police Station Thakkalai, the Station Officer without registering the case sent the revision petitioner the victim to the hospital for treatment and the F.I.R. was registered only on 3. 1991 The accused who are the respondents herein filed a petition under Sec. 239 of the Criminal Procedure Code to discharge them on the ground that the allegations made against them are not true and there are no sufficient grounds to proceed against them. The learned Judicial Magistrate after referring to the defects in that prosecution cases has ordered for the discharge of the accused. 3. The learned counsel appearing for the revision petitioner contended that the order of the learned Judicial Magistrate is illegal and contrary to law as the principles enunciated for discharging the accused under Sec. 239 has not been considered by the learned Judicial Magistrate. On a perusal of the order of the learned Judicial Magistrate, I am able to see that he has gone deep into the statements of the witnesses recorded under Sec. 161, Criminal Procedure Code and the merit of the prosecution case, taking into consideration the infirmities in the prosecution case even at this stage before framing the charge. The learned Judicial Magistrate has found that though the occurrence said to have been taken place at 8.00 p.m. on 37. 1990, for which the complaint was received on at 1.30 a.m. on 8. 1990, Police memo issues to the hospital was dated 37. The learned Judicial Magistrate has found that though the occurrence said to have been taken place at 8.00 p.m. on 37. 1990, for which the complaint was received on at 1.30 a.m. on 8. 1990, Police memo issues to the hospital was dated 37. 1990 which cannot be true and though in the Accident Register only seven injuries are mentioned whereas in the wound certificate sixteen injuries are mentioned and it was not explained as to how P.W. 1 had sustained sixteen injuries and these discrepancies would lead to the suspicion in the prosecution case. He has also referred to some more discrepancies in the prosecution case. But I feel that the same were not germane at the stage of framing the charge and this is a case in which apart from the victim two other persons have spoken in their statements before the police under Sec. 161 of the Criminal Procedure Code alleging the specific overt acts against these respondents. In spite of the fact mat there is allegation of specific overt acts against the respondents and the victim also was sent to the Hospital for treatment and the medical certificate also was produced before the court, the learned Judicial Magistrate has gone to discuss about the veracity of the complaint, the delay in registering the complaint and also the alleged suspicious circumstances for certain injurious not found in the Accident Register. Under Sec. 239 of Criminal Procedure Code upon considering the police report and the documents sent with under Sec. 173 and after making such examination if the Magistrate finds that the charge against the accused is groundless he shall discharge the accused after recording the reasons for doing so. Therefore, the Magistrate must be satisfied that there are no grounds to proceed with for framing the charges for the offences alleged. This aspect has been considered in number of cases by this court and also by the Supreme Court in Angusamy v. Kaleeswaran Ambalam, 1989 L.W. (Crl.) 108, Ratnavel Pandian, J., (as he then was) after referring to the views of the Supreme Court has observed that: “The stage of Sec. 239 of the Code prior to the framing of the charge under Sec. 240 of the Code, is not expected to be a dress rehearsal of a trial. The Magistrate at that stage is required to consider the Police report and the documents sent along with it under Sec. 173 which are furnished to the accused in compliance with Sec. 207 of the Code and the explanation given by the accused during his examination and the submission if any made by the prosecution and the accused for finding out whether the charge, which means the accusation, leveled against the accused is groundless. At that stage, as rightly pointed out by the learned single Judge of Delhi High Court in Surinder Kumar Yadav’s case, (1986)3 Crimes 645 , it is not open to the Magistrate, to consider any other document, which is not covered by the provisions of Sec. 207 of the Code, and the examination of the accused, if any, under that provision must necessarily be with regard to the material placed by the prosecution against him and the documents referred to under Sec. 207, Criminal Procedure Code, but the document produced by the accused are not to be taken into consideration by the Magistrate while applying his mind whether the accusation levelled against the accused is groundless or not.” In Superintendent and Rememberancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979 Crl.L.J. 1390, the Supreme Court had observed that: “At the stage of framing charges the prosecution evidence does not commence. The Magistrate has therefore, to consider the question as to framing of charge on a general consideration of the material placed before him by the investigating Police Officer. The standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Sec. 227 or 228. At this stage even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charges against the accused in respect of the commission of that offences.” 4. In the light of the observation of the Supreme Court the learned Judicial Magistrate was expected to take into consideration of the materials placed before him that is the records filed under Sec. 173 of the Criminal Procedure Code. In the light of the observation of the Supreme Court the learned Judicial Magistrate was expected to take into consideration of the materials placed before him that is the records filed under Sec. 173 of the Criminal Procedure Code. The F.I.R. and the statements recorded under Sec. 161 of the Criminal Procedure Code show these respondents/ accused had attacked the revision petitioner on 37. 1990 at about 8.00 p.m. The learned Judicial Magistrate having found this allegations against these respondents still has chosen to apply the standard test with regard to this allegation by deeply probing into the merit. As pointed out by the Supreme Court the test to be applied finally for the judgment cannot applied at the stage of Sec. 227 or 228 of Criminal Procedure Code. Even a strong suspicion found upon the materials before the Magistrate is sufficient ground to frame charges against the accused person. In this case as mentioned above in addition to the statement of the victim P.W. 1 two other persons have corroborated his version by their statement before the police and further two doctors have examined the complainant on the police memo for which the wound certificate also have been produced, before the court. Inspite of these records the learned Judicial Magistrate has chosen to proceed to probe into the merit of the allegations in the light of the delay in giving the complaint and the corrections in dates and the number of injuries found on the victim complainant. The delay in registering this case by the police has created a suspicion in the mind of the learned Magistrate compelling him to probe into the prosecution version. Even though the complainant gave a complaint in Thakkalai Police Station at 1.30 a.m. on 8. 1990 the police did not register the case for more than five months and only on 3. 1991 the F.I.R. was registered. But the reason has been offered for this delay on the part of the prosecution. As the complainant has alleged in his complaint that these respondents/ accused assaulted him by their hands, the officer who was in charge of the police station thought that the offence would fall only under Sec. 323 of the Indian Penal Code for which the police cannot take cognizance and therefore, the complaint was not registered though the victim was sent to the Hospital for treatment. The victim was initially treated in Thakkalai thereafter sent to Padmanabhapuram and the Dentist has found that the injury caused to him was grievous in nature and the wound certificate was sent to the police station stating that the injury No.3 was grievous in nature. As this victim had sustained grievous injury which, would fall under Sec. 325 of the Indian Penal Code cognizable by the police the Sub Inspector of Police thereafter registered the case on 3. 1991 and sent the F.I.R. to the court. It is true that the police officer should have registered the case even on the date of the complaint irrespective of the question whether the offence was cognizable or not by the police. If it was not cognizable they could have referred the case as not cognizable. But the police officer in this case has committed the mistake in not registering the case and this mistake has created a suspicion in the mind of the learned Magistrate who has mis-applied Sec. 239 of Criminal Procedure Code to discharge the accused. Therefore, the learned Magistrate had not applied his mind properly while applying Sec. 239 of the Criminal Procedure Code and he has ordered for the discharge of the respondent/ accused which is of an erroneous order and it has to be rectified by setting aside this order. 5. The result, is that the order of the learned Magistrate is set aside and the case is ordered to be taken on file for framing charges and to proceed according to law. As the respondents have not entered appearance notice shall be issued by the learned Magistrate, Padmanabhapuram before proceeding with the case.