JUDGMENT : A. Pasayat, J. - In this application sty ed as one u/s 401 of the Code of Criminal Procedure, 1973 (in short, the 'Code'), the State of Orissa has assailed correctness of order passed by teamed Special Judge (Vigilance), Sambalpur discharging Harekrushna Pattnaik (hereinafter referred to as the 'accused') u/s 239 of the Code, and acquitting him of the charges. 2. Background facts leading to filing of the application are essentially as follows : First Information Report was lodged by the Deputy Superintendent of Police (Vigilance) which was registered as Berhampur P. S. . Case No. 8 of 1987, alleging that the accused who was functioning at the relevant point of time as Chief Executive of the Orissa Forest Development Corporation Limited (hereinafter referred to as the 'Corporation') and was stationed at Bolangir entered into criminal conspiracy with his subordinate staff and contractors thereby committing offence of "criminal conspiracy" as defined in the Indian Penal Code, 1860 (in short. 'IPC'). According to prosecution, factual position is essentially as follows. Accused had authority to supervise marketing of Kendu leaves, sal seeds and timber for the Bolangir, Koraput, Kalanandi districts and part of Sambalpur district. Coupas Nos. D.L. 38/82-83, 179/82-83, 99/82-83, 40/83-84, and 85 to 88/8i-84 under Chitrakonda Range, Malkangiri Division were leased out to the Corporation for various operations like felling trees, converting to logs or timbers, and marketing them for the highest price. Accused entered into negotiations after discussion with some forest contractors (co-accused in the case) and permitted them to operate the coupes on ex-coupe basis or on the basis of site delivery. He undertook this exercise allegedly on the basis that out of seven concerned coupes, six were irregular, subject to podu cultivation, and were wind stricken. There was violation of the Orissa Forest Contract Rules, 1966 (in short, 'Contract Rules'). There was loss of more than 1012 cubic metres worth more than Rs. 43.5 lakhs. Loss to the Corporation was occasioned due to criminal conspiracy of the accused and his co-accused persons. Charge, sheet was submitted latter detailed investigation. Questioning the order taking cognizance of offences punishable under Sections 13(2), 13(1),(c)'(d) of the Prevention of Corruption Act. 1988 (in short, 'PC Act') and Sees 477A, 403, 79 read with Section 120B, IPC and Section 37 of the Orissa Forest Act, 1372 (in short, 'Forest Act'), accused had moved this Court is Criminal Misc. Questioning the order taking cognizance of offences punishable under Sections 13(2), 13(1),(c)'(d) of the Prevention of Corruption Act. 1988 (in short, 'PC Act') and Sees 477A, 403, 79 read with Section 120B, IPC and Section 37 of the Orissa Forest Act, 1372 (in short, 'Forest Act'), accused had moved this Court is Criminal Misc. Case No. 25 of 1994. He was permitted to raise the dispute at the time of consideration of charge, pursuant to the direction given, learned Special Judge considered the matter and by the impugned order directed discharge, holding that (a) there was no material to establish criminal conspiracy and (b) the ingredients necessary to constitute such offence were absent. He acquitted the accused of the charges. He referred to the statements of the D. F. O., Jeypore, Koraput regarding six of the coupes being irregular, statements of the Asst. Accountant and another employee were referred to regarding discretion exercised for holding negotiation. Direction given by the Managing Director in his letter No. 3174 dated 8-4-1984 not to go for ex-coupe operation, but giving discretion to the accused to decide the matter himself and not to dishnour the contract of purchasers and to protect the interest of the Corporation was taken note of. On the strength of this directive, accused permitted the Divisional Manager of the Corporation to negotiate afresh for ex-coupe sale as it was deemed better and safer by him. He enhanced the security deposit at first to 20% and later on reduced it to 15% ' of the sale price. The percentage fixed after reduction was higher than the permissible limit of 10%. He also fixed the upset price. Taking into consideration the inaccessibility of the area in which the coupes were situated he took timely action to protect them from damage and destruction. No directive other than the one referred to above was given. Action taken by the accused saved the Corporation from unnecessary expenditure and loss of property. There is no material to show that accused was made aware of any unauthorised felling or cutting of trees. The time for working out the coupes were extended from time to time. Taking all the above aspects into consideration it was concluded that the loss if any cannot be attributed to any action of the accused. There is no material to show that accused was made aware of any unauthorised felling or cutting of trees. The time for working out the coupes were extended from time to time. Taking all the above aspects into consideration it was concluded that the loss if any cannot be attributed to any action of the accused. It was observed that there was no direct or circumstantial material to show nexus between action of accused and Criminal charges levelled. No evil or criminal intention was inferable. On the contrary with a view not to spoil health of the forest and prevent unnecessary drainage of funds, accused acted in good faith. Statements recorded during evidence abundantly point out at bona fide conduct and needle of suspicion does not point to him. With aforesaid observations, the order of discharge and acquittal was passed. 3. Primary stand of the State in support of the revision application is that the learned Special Judge erred in evaluating the materials which is impermissible at the stage of consideration of charge. Court at that state is not required to find out possibility of conviction or acquittal, but has only to see whether a prima facie case existed which justified trial. Learned counsel for the accused on the other hand submitted that a Court should not frame ch3rge in a routine manner. If the ingredients of the offence alleged do not exist even on a total reading of the materials placed on record by the prosecution, order u/s 239 of the Code will be perfectly Justified. 4. Before as order of discharge u/s 239 of the Code is passed, the Magistrate is required to ;(a) consider all the documents referred to in Section 173(2)(b) examine the accused, if it is considered necessary and (c) give the prosecution and the accused an opportunity of being heard. If ail these being done, the Magistrate considers the charge against the accused groundless, he will discharge him. At. that stage all that the Magistrate is required to do is to see that there is a reasonable basis or foundation for framing a charge. In other words, the Magistrate has to consider whether the statements and the circumstances if accepted without any addition or altertion make out s prima facie case for which a charge need be framed against the .accused. If the answer is in affirmative he will proceed with the . In other words, the Magistrate has to consider whether the statements and the circumstances if accepted without any addition or altertion make out s prima facie case for which a charge need be framed against the .accused. If the answer is in affirmative he will proceed with the . trial of the offence. An order passed u/s 249 is not to be equated with an order of acquittal which is passed u/s 249. The word "discharge" is used in Sections 227, 239, 245 and 321, but in contextually different manner. It is to be noted that the word "discharge" has not been defined in the Code. An order of discharge u/s 239 of the Code does not amount to acquittal as no trial has taken place and as such fresh trial can be held and cognizance can be taken on the basis of fresh material. The word "discharge" does not mean a discharge from the whole case. The Code does not contem late an implied discharge at all. Mere non-framing of charge by a Magistrate does not necessarily mean a discharge of the accused so long as the Magistrate can frame a charge which he has not considered necessary to frame at an earlier stage, u/s 216 of the Code. The expression "charge against the accused to be groundless" is not to be construed to mean when there is no legal evidence to support charge brought against the accused and the acts did not make out any offence at all. The word "ground" as appearing in the Section must be taken in its ordinary connotation to mean basis, foundation of valid reason. The obvious meaning of the word "charge" as used in Section 239 is in the sense of allegation or accusation. The Section does not warrant and/or justify an elaborate examination of the statements recorded during police investigation. 5. The jurisdiction of the Magistrate does not extend to the weighing of evidence placed before him; as if he is scrutinising evidence recorded at trial. All that he is to see is whether the materials placed before him disclose an offence, if any. If it does, he has to frame charge and proceed with the trial. But if the material disclosed no basis or foundation whatsoever for a charge, the accused has to be discharged. All that he is to see is whether the materials placed before him disclose an offence, if any. If it does, he has to frame charge and proceed with the trial. But if the material disclosed no basis or foundation whatsoever for a charge, the accused has to be discharged. It is not open to the Magistrate at this stage to consider whether the material when tested by cross-examination would or would not be capable of acceptance for founding a conviction It is not for him to make presumptions either on the basis of omissions or ambiguous statements which are capable of explanation. Considerations which may be available at the conclusion of trial cannot be availed at the stage of consideration of charge. Unless materials before the Magistrate disclose no basis for framing charge, he cannot direct discharge. However, it is imperative on him to make a record of his opinion once he comes to conclusion that the charge against the accused is groundless and does not have a foundation. The Court has to act on the materials before it and not blindly adopt the views of the prosecution. If on the existing material there is no ground for presuming the accused to be guilty there can hardly be any justification for framing charges The Court has to apply its judicial mind for considering whether or not there is any ground for presuming commission of any offence by the accused. The expression "ground ess" as appearing in Section 239 of the Code means that there is no ground for presuming that the accused committed an offence sought to be charged against him. Therefore, it cannot be construed to mean absence of reasonable ground to expect a conviction. The accused cannot be given a benefit of doubt at the stage contemplated u/s 239 but if there is a doubt about the guilt of the accused, the charge cannot be said to be groundless. If there appears on record even slightest admissible evidence for framing charge u/s 240. an order of discharge cannot be passed. Even a strong suspicion that accused has committed an offence would be sufficient for framing charge. 6. It is fairly accepted by the learned Advocate-General appearing for the State that there is no direct or circumstantial material implicating the accused It is submitted that certain procedural irregularities were noticed. an order of discharge cannot be passed. Even a strong suspicion that accused has committed an offence would be sufficient for framing charge. 6. It is fairly accepted by the learned Advocate-General appearing for the State that there is no direct or circumstantial material implicating the accused It is submitted that certain procedural irregularities were noticed. According to him, to wipe out any suspicion in the minds of the people that a high placed official was being let off lightly even if there is no direct or circumstantial material or evidence, the learned Special Judge should have framed charge. It is submitted that procedural irregularities can sometimes lead to an inference of conspiracy. 7. Section 120B, IPC is the provision which provides for punishment for criminal conspiracy. Definition of criminal conspiracy given in Section 120A reads as follows : "120A. When two or more persons agree to do, of cause to be done-- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy : Provided that no agreement except an "agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof." The elements of a criminal conspiracy have been stated to be : (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, (d) in the jurisdiction where the statute was required, an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime in designed to curb immoderate power to do mischief which is gained by a combination of the means. Law making conspiracy a crime in designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See American Jurispurdence Vol. ll. Section 23, P. 559). For an offence punishable u/s 120B prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable, when two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means. No doubt in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing illegal means an act which itself may not be illegal. Therefore, ? the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the comolicity of the accused. But if these circumstances are compatible also with the innocence of the accused persons then it cannot be held that the prosecution has successfully established its case. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the comolicity of the accused. But if these circumstances are compatible also with the innocence of the accused persons then it cannot be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be clear that they were so committed, in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inference from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. (See P.K. Narayanan v. State of Kerala : 1994 (3) SCJ 596). As indicated supra, the learned Advoc3te-General has fairly conceded that there is no direct or circumstantial evidence to show conspiracy. Whatever had come to fore related to some alleged procedural irregularities, there was no material whatsoever to indicate existence of any agreement which is sine qua non for bringing in application of Section 120B. This has been considered to be a case where the charge was groundless by learned Special Judge. In view of the submissions of the learned Advocate-General and the analysis made by the learned Special Judge, the order of discharge does not appear to be illegal. But acquittal as directed is not in accordance with law. Learned Special Judge has exceeded his jurisdiction in directing acquittal. Direction to that effect is vacated, but order for discharge is maintained. Revision application is disposed of accordingly.