Judgment Rajesh H. Shukla, J.—Rule. The present petition has been filed by the petitioner under Articles 226 and 227 of the Constitution of India as well as under Section 482 of the Code of Criminal Procedure for the prayer that appropriate writ, order or direction may be issued for quashing and setting aside the order passed in Criminal Revision Application No. 56 of 2011 by the Sessions Court (Main) Gandhinagar dated 18.07.2011 confirming the order passed by the Court of Magistrate dated 18.05.2011 on the grounds mentioned in the petition. 2. Heard learned advocate Mr. Pandya for Shri C.K. Pandya for the petitioner and learned APP Mr. H.L. Jani as well as Mr. P.T. Chacko for Respondent Nos. 2 and 3-original accused. 3. Learned advocate Mr. Pandya submitted that as stated in the pursis at page No. 55, the application for adjournment was given by the learned advocate for the accused and the matter was kept for pre charge evidence and arguments to the knowledge of the learned advocate for the accused. He submitted that thereafter, as could be seen from the record, the written arguments for the accused persons opposing the framing of charge were also given and the same have been considered as it is recorded in the order passed by the Magistrate. Therefore, it cannot be said that no opportunity of cross examination has been given to the respondent-original accused. Learned advocate Mr. Pandya submitted that when the matter has been kept and adjourned to the knowledge of the accused and his advocate and thereafter when they do not make any preliminary objection and the charge is framed, the grievance cannot be made that no opportunity has been given. 4. Learned advocate Mr. P.T. Chacko, however, referred to the said application for adjournment dated 13.04.2011 and submitted that it was kept for pre charge evidence and arguments and thereafter, as could be seen straightway, the order is passed regarding framing of the charge. He referred to the written submission and pointedly referred to the Paragraph No. 10 that there is no evidence to support the allegations and therefore, there is no sufficient material for confirming the charge. Learned advocate has also referred to the affidavit-in-reply on behalf of the opponent-accused. 5. In view of this submission, it is required to be considered whether the present petition can be entertained or not. 6. Learned advocate has also referred to the affidavit-in-reply on behalf of the opponent-accused. 5. In view of this submission, it is required to be considered whether the present petition can be entertained or not. 6. The moot question, which is required to be considered is whether the opportunity of cross-examining the witnesses of the complainant was granted by the Magistrate before proceeding to frame the charge. As could be seen from the record, the earlier applications were given for adjournment to the knowledge of the accused and the learned advocate for the accused that the matter is kept for pre charge evidence and arguments and as rightly submitted by learned advocate Mr. Pandya that while passing the order in Criminal Case Nos. 4022 of 2010 at Annexure-D, the Chief Judicial Magistrate Gandhinagar, has considered the submissions and the reply opposing the framing of charge at Exhibit-25. Learned advocate for the accused had remained present and made the submission. Therefore, the submission that no opportunity has been given cannot be accepted and the said submission is without any merit. 7. Further the submission made by the learned advocate Mr. P.T. Chacko that the accused had right to cross examine the witnesses of the complainant, is also misconceived inasmuch as, when the written reply was given opposing the framing of charge and when the matter is kept for pre charge evidence and arguments, the learned advocate for the accused could have specifically made the endorsement or given an application that he desire to cross examine the witnesses. On the contrary, when the pursis at Exhibit-23, Annexure-C dated 14.04.2011 is given by the complainant and his advocate, the objection could have been raised with endorsement or by separate application. Assuming that no such application is made by inadvertence, even then, at the stage of hearing, when the written arguments of the accused opposing the framing of charge were considered on the basis of the submissions made by the learned advocate, the learned advocate could have requested the Court that before such hearing, first he would like to cross examine the witnesses on behalf of the complainant. Therefore, when he has not availed of that opportunity at that stage, which was available to him as required under Section 202 of the Code of Criminal Procedure, it is too late now to make a grievance that opportunity was not given. Therefore, when he has not availed of that opportunity at that stage, which was available to him as required under Section 202 of the Code of Criminal Procedure, it is too late now to make a grievance that opportunity was not given. The provision of Section 202 of Code of Criminal Procedure clearly provides about the procedure, and when the cognizance is being taken, the right could have been asserted for cross examining the witnesses of the complainant. It is not even the case of the learned advocate for the accused that though such request is made the same has been declined. It is in these circumstances the order which has been passed by the Sessions Court, Gandhinagar allowing the revision, the order passed by the Magistrate in Criminal Case No. 4022 of 2010 dated 18.05.2011 deserves to be set aside. 8. The procedure which has been provided in Sections 244 (2), 246 refers to the procedure and what has been provided is that when the case has been instituted otherwise than on police report the full latitude has to be given by the Magistrate to the accused. Moreover, as provided in Section 246 when the Magistrate is of the opinion that the accused has committed an offence triable under this Chapter, he can proceed to frame the charge as provided therein after following the procedure. At that time no such grievance for allowing the cross examination of the witnesses has been given. In this circumstances, the impugned order cannot be sustained. 9. The reliance has been placed by the learned advocate on the judgment reported in AIR 2009 Supreme Court page 2282, in case of “Ajoy Kumar Ghose vs. State of Jharkhand & Anr.”. It is required to be mentioned that in this judgment also what has been provided and observed is that the trial Court cannot proceed to frame the charge without taking any evidence and following the procedure provided under Section 244 of the Code of Criminal Procedure. The observation has been made in the order of the Hon’ble Apex Court regarding recording of the evidence under Section 244 before the charge is framed. In the facts of the case, it is not that the witnesses of the complainant have not been examined, therefore, the evidence has been recorded. The observation has been made in the order of the Hon’ble Apex Court regarding recording of the evidence under Section 244 before the charge is framed. In the facts of the case, it is not that the witnesses of the complainant have not been examined, therefore, the evidence has been recorded. Therefore, at that stage the opportunity was available with the accused as provided under law to cross examine the witnesses, however, it is not availed of by exercising the right of cross examination. It cannot be said that the procedure, as required, is not followed. Therefore, the observation made by the learned Sessions Judge relying on this judgment are misconceived. 10. In the circumstances, the present petition deserves to be allowed and accordingly stands allowed. Prayer in terms of Para-15 (a) is granted. The impugned order passed in Criminal Revision Application No. 56 of 2011 passed by the Sessions Court (Main) Gandhinagar dated 18.07.2011 is hereby quashed and set aside. Rule made absolute. Direct service is permitted.