Honble TIBREWAL, J. – The short question which arises for determination in this petition under Section 482 Code of Criminal Procedure is whether the impugned order dated November 29,1994 of Special Judicial Magistrate (Economic Offences) Rajasthan Jaipur directing to frame charges under Sections 9(1) (bb),9(1) (bbb) and 9(1) (ii) of the Central Excise & Salt Act (hereinafter referred to as the Act) is sustainable in the eye of law. (2). In order to appreciate the contentions raised on behalf of the petitioner,necessary facts are narrated. M/s Fancy Stones (India) Limited is a company incorporated under the Companies Act. The Company is engaged in the business of preparing/ manufacturing Marble Slabs and Marble Tiles having its factory at village Pasund, District Udaipur. The factory was inspected by the officials of Central Customs Department on 1st December 1986 and the inspection was continued up to 3rd December. The inspection was made in presence of Shri A.Devraj acting Manager and Shri Mohanlal Kumawat Section-In- Charge/Works Supervisor of the factory. The statement so Shri A. Devraj was also recorded during inspection. On completion of inspection it was noticed that the company has evaded or failed to pay Excise Duty in the tune of Rs. 93,894.09 and thus violated S.9(1)(bb),9(1)(bbb) and 9(1) (ii) of the Act. After obtaining necessary sanction for prosecution a complaint was filed against the petitioner on September 29, 1989 by the Superintendent (Prosecution) Central Pro- duction and Excise Duty. (3). The case was instituted otherwise than on police report i.e. on a private complaint and it was triable as a warrant case. Pre- charge prosecution evidence was recorded by the concerned Magistrate as required under Section 244 of the Code and statement of Shri S.C. Rawat (PW 1), Shri Gajraj Singh Shaktawat (PW2), Shri Gautam Nath (PW 3) and Shri B.L. Sharma (PW 4) were recorded. Out of them PW 1 to Pw 3 are inspecting officers who also made a spot enquiry, while PW4 Shri B.L. Sharma has filed the complaint after obtaining necessary sanction. The learned Magistrate, in the impugned, order has, observed that PW 1 Shri S.C. Rawat, P.W 2 Shri Gajraj Singh Shaktawat and P.W. 3 Shri Gautam Nath have not stated anything incriminating the petitioner in the crime. However, on the statement of PW 4 Shri B.L. Sharma, the learned Magistrate thought it proper to frame charges against the petitioner as aforesaid. (4). However, on the statement of PW 4 Shri B.L. Sharma, the learned Magistrate thought it proper to frame charges against the petitioner as aforesaid. (4). Before I advert to the submissions made by the learned counsel for the parties, it is necessary to examine few provisions of the Act. Section 9 describes offences and prescribes penalties for the same. As per this section the person who commits the offence is liable for the offence and it contains no clause for vicarious liability. Then Section 9-AA,which has been inserted vide Act No. 79 of 1985, deals with offences committed by a company. The section reads as under:– "9-AA. Offences by companies :- (1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against the punished accordingly. Provided that nothing contained in this sub section shall render any such person liable to any punishment provided in this Act, If he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub section (1) where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. (5). A perusal of Section 9-AA makes it crystal clear that where a company commits an offence, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct for the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Then sub section (2) points out that where an offence has been committed by a company and it is proved that the offence was committed with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officer, he shall also be deemed to be guilty of that offence and shall be liable to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Thus, section 9AA raises presumption of guilty against a person in particular situation narrated there. (6). In Criminal Law the person who commits an offence is only liable for prosecution and punishment. There is no vicarious liability in Criminal Law unless the statute provides so and it takes that within its fold. Section 9-AA is in deviation from the general law and creates presumptions in case the offence is committed by a company. The combined effect of Section 9 and 9- AA of the Act, in cases where offences are committed by a company is that the following persons are liable to be prosecuted and punished accordingly: (i) The company and the person who commits any offence; (ii) Every person, who at the time the offence was committed was incharge of and responsible to the company and; (iii) A director, Manager, Secretary, or any other officer where an offence is committed with his consent or connivance or is attributable to any neglect on his part. (7). In background of the aforesaid charging provisions further question requi- res for consideration is whether the concerned Magistrate committed any error of law in framing charges against the petitioner? (8). The main contention of the learned counsel for the petitioner is that on the material available on record no prima facie case for framing any charge against the petitioner was made out and the impugned order of the Magistrate directing to frame charge is manifestly illegal, without jurisdiction and based on no legal evidence as such, to allow criminal proceeding against the petitioner would be an abuse of the process of court. In order to appreciate the argument, it is proper to examine some provisions of the Code of Criminal Procedure. The present case was a warrant case instituted otherwise than on a police report. In order to appreciate the argument, it is proper to examine some provisions of the Code of Criminal Procedure. The present case was a warrant case instituted otherwise than on a police report. The relevant sections of the Code to frame charge in such cases are 244,245 and 246 (1), which reads as under :– "S.244 ; Evidence for prosecution (1) When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution issue a summons to any of its witnesses directing his to attend or to produce any document or other thing". S.245 : When accused shall be discharged- (1) If, upon taking all the evidence referred in S.244, the Magistrate considers, for 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. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate he considers the charge to be groundless." S.246(1) ; Procedure where accused is not discharged- (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for pre- uming that the accused has committed an offence triable under this chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused". (10) At pre charge stage, the Magistrate is required to take all such evidence as may be produced in support of the prosecution. The Magistrate then considers whether a prima facie case was made out or grounds exist to connect the accused with the offence from the evidence referred to in Section 244 of the Code. (10) At pre charge stage, the Magistrate is required to take all such evidence as may be produced in support of the prosecution. The Magistrate then considers whether a prima facie case was made out or grounds exist to connect the accused with the offence from the evidence referred to in Section 244 of the Code. It is true that at this stage he is not required to go into meticulous consideration of evidence and material produced before him but section 244 definitely mandates a sincere and honest application of mind on the evidence to see if a prima facie case had been made out to frame a charge or not. If prima facie case is made out, he shall frame charge and if there is no legal evidence or the facts do not make out any case at all then he has no option but to discharge the accused .The order framing charge substantially affects ones liberty and it cannot be said that the court must automati- cally frame charge without fully adverting to material available on record. (11) Before ordering to frame charge the approach of the court to consider the evidence should be judicious and honest and not a mechanical one, as by framing such charge there will be a threat to a persons liberty as held by the honble Supreme Court in Century Spinning & manufacturing Co. Ltd. V. The State of Maha- rashtra (1) ; " It cannot be said that the court at the stage of framing charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the persons liberty and it cannot be said that the court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in S. 173 consider it proper to institute the case. The responsibility of framing the charges is that of the court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution. Held that the trial Court rightly came to the conclusion that the prosecution for the offence charged was groundless. Order of discharge made by him was eminently just and fair order. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution. Held that the trial Court rightly came to the conclusion that the prosecution for the offence charged was groundless. Order of discharge made by him was eminently just and fair order. The High Court was in error in reversing that order . (12). In R.S. Nayak vs. A.R. Antulay (2), the Honble Supreme Court has observed as under (Para 44 at page 2071):– " The Code contemplated discharge of the accused by the court of Session under S. 227 in case triable by it : cases instituted upon a police report are covered by S. 239 and cases instituted otherwise than on police report are dealt with in S. 245. The three sections contain somewhat different provisions in regard to discharge of the accused. Under S. 227, the trial Judge is required to discharge the accused if he considers that there is no sufficient ground for proceeding against the accused". Obligation to discharge the accused under section 239 arises when the Magistrate considers the charge against the accused to be groundless". The power to discharge is exercisable under S. 245 (1) when the Magistrate considers, for reasons to be re- corded, that no case against the accused has been made out which, if unrebutted would warrant his conviction..."It is a fact that Ss. 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent alongwith it and examination of the accused and after affording an opportunity to two parties to be heard. The stage for discharge under S. 245 on the other hand is reached only after the evidence referred to in S.244 has been taken. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under S. 245 (1) is a preliminary one and the test of Prima facie case has to be applied. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under S. 245 (1) is a preliminary one and the test of Prima facie case has to be applied. Inspite of the difference in the language of the three sections the legal position is that if the trial court is satisfied that a prima facie case is made out charge has to be framed. (13). In Madhavrao Jiwaji Rao Scindia vs. Sambhajirao Chandrojirao Angre (3) while dealing with Section 482,Cr.P.C. the Honble Supreme Court held thus :- "The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a pro- secution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and therefore no useful purpose is likely to be served by allowing a criminal prosecution to continue the court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at the preliminary stage. (14). In the background of the above proposition of law I have to consider whether charges have rightly been framed against the petitioner? As stated earlier, the prosecution has examined only 4 witnesses at pre charge stage. P.W 1 to PW 3 namely Shri S.C. Rawat, Shri Gajraj Singh Shaktawat and Shri Gautam Nath have not stated anything to incriminate the petitioner warranting of framing charge against him and this facts has been stated by the learned Magistrate in the impugned order. Charges have been framed against the petitioner on the evidence of PW 4 Shri B.L. Sharma. Shri Sharma was the Superintendent (Prosecution) in Cen- tral Excise Department therefore, on 29.9.89 he has only filed the complaint against the petitioner on authorisation by the Secretary Central Excise Department,. Charges have been framed against the petitioner on the evidence of PW 4 Shri B.L. Sharma. Shri Sharma was the Superintendent (Prosecution) in Cen- tral Excise Department therefore, on 29.9.89 he has only filed the complaint against the petitioner on authorisation by the Secretary Central Excise Department,. He has made statement to this effect only in his examination-in-chief before the Magistrate. In cross examination he has stated that he did not know as to who were the directors of the Company M/S Fancy Stones (Pvt.) Ltd.He then stated that on the basis of statement of Shri Devraj the petitioner was made an accused in the complaint and he was not aware what has been told by this witness. He further clarified that the petitioner was not nam by Shri Devraj in his statement and to the contrary, one Ramesh Advani as a resident director of the company was named by him. It may be stated here that statement Ex.P. 3 of Shri Devraj was recorded by the officer of the Department during inspection of the factory and in that statement he has only stated that detailed information may be obtained from resident director Shri Ramesh Advani. P.W 4 Shri B.L. Sharma has also admitted his statement that he himself did not make any investigation or enquiry in the case.Thus the statement of Shri B.L. Sharma PW 4, even taken on its face value does not implicate the petitioner with the commission of the crime. He had no personal knowledge about the facts of the case and he himself did not make any inquiry or investigation. He has simply filed the complaint on the basis of authorisation by the Collector. From his statement recorded at pre charge stage, it was not prima facie proved that the petitioner committed the offence or that he was incharge of, and responsible to the company for the conduct of the business of the company or that the offence has been committed with his consent or connivance or otherwise attributable to any neglect on his apart. In absence of any evidence no charge could be framed against the petitioner, as such, the impugned order directing to frame charge against the petitioner is not sustainable. In the facts and circumstances of the case, if criminal prosecution against the petitioner is allowed to continue it would be an abuse of process of the court. (15). Consequently this misc. In absence of any evidence no charge could be framed against the petitioner, as such, the impugned order directing to frame charge against the petitioner is not sustainable. In the facts and circumstances of the case, if criminal prosecution against the petitioner is allowed to continue it would be an abuse of process of the court. (15). Consequently this misc. petition is allowed The impugned order of the learned Magistrate ordering to frame charge against the petitioner and all other further proceedings in the case are hereby quashed and set aside. (16). Before parting with I would like to express my distress and anxiety that this court was left with no option but to discharge the petitioner in a serious case of evasion of Central Excise Duty and that such a serious case would go unpunished. This was mainly due to lapses and negligence on the part of prosecuting age- ncy/complainant as no efforts were made by it to connect the petitioner with the crime by producing legal evidence and further the prosecution has not been launched against other persons who were incharge of, and responsible to the company for the conduct of the business of the company or against those who were consenting party to the commission of the offence or at whose connivance or negli- gence the offence was committed. Be that as it may, the prosecuting agency/complainant should remain satisfied with the result for their own lapses and it is expected that they shall be careful in future.