Judgment : 1. This is an application filed by the petitioner who is the accused in CC.1099/2011 on the file of the Judicial First Class Magistrate Court-II, Kochi, challenging the order of the court below, posting the case for framing charge without complying with the formalities under section 482 of Code of Criminal procedure. 2. It is alleged in the petition that petitioner has been arrayed as accused in CC.1099/2011 on the file of the Judicial First Class Magistrate Court-II, Kochi, which was initiated on the basis of a private complaint filed by the second respondent alleging offences under sections 420, 406 of Indian Penal Code. Originally the complaint was filed, which was forwarded to the police for investigation and after investigation, final report was filed stating that further action dropped. Thereafter, petitioner filed a protest complaint as Crl.M.P.2997/2011 and after taking sworn statements of the complainant and one witness, the learned Magistrate decided to proceed with the private complaint rejecting the refer report submitted by the investigating officer and issued notice to the accused. The accused appeared before the court below and they were released on bail. Though it was posted for pre charge evidence, complainant nor his witness were present. But the learned magistrate without conducting an enquiry under section 244 of the Code, mechanically framed charge against the petitioner and it was read over and he pleaded not guilty. That proceeding of the lower court is challenged by the petitioner by filing this petition. 3. Considering the question involved, this court felt that it can be admitted and respondents appeared through Public Prosecutor. 4. This court has called for a report from the court below regarding the things transpired in the case and the learned magistrate has sent a report which reads as follows:- "Originally, the complaint was filed as MP.2997/2011. After examining the complainant and a witness, cognizance was taken for the offences under sections 406 and 420 of the IPC. The case was taken on file as CC.1099/2011. On 26.11.2011, pursuant to the summons, the accused appeared and was enlarged on bail. He was served with the copies and case was posted for pre charge evidence to 24.04.2012. On that day, the case was adjourned for pre charge evidence to 19.07.2012. The case was taken on file as CC.1099/2011. On 26.11.2011, pursuant to the summons, the accused appeared and was enlarged on bail. He was served with the copies and case was posted for pre charge evidence to 24.04.2012. On that day, the case was adjourned for pre charge evidence to 19.07.2012. Owing to no sitting, the case was adjourned to 25.06.2013 on which date also, the case was posted for evidence as last chance to 24.07.2013. On 24.07.2013, an application was filed to implead the new manager of the complainant firm. That petition was allowed on 17.08.2013. From that date, the case was posted for steps and for appearance of the complainant to 16.11.2013, 07.01.2014 and 21.01.2014. On 21.01.2014, the court ordered as follows "accused present. For steps. Charge is framed, read over and explained to him to which he pleaded not guilty. Issue WS to CWs 1 to 3" to 08.04.2014. Though opportunities were given to adduce pre charge evidence, it not seen taken. Before framing the charge, both sides were not heard and the case was not posted for framing charge. It is humbly submitted that I took charge only on 02.06.2014. the above report is submitted for favour of necessary action". 5. The learned magistrate also sent a readable copy of the proceeding papers in this case as well. 6. Heard the counsel for the petitioner and Adv.Biju.K.C appeared for second respondent and the Public Prosecutor 7. The counsel for the petitioner submitted that the entire procedure adopted by the court below is illegal as without giving an opportunity for the petitioner to cross examine the witnesses at the pre charge stage, the court below had framed the charge. Further the sworn statement has been taken at the time of taking cognizance cannot be used by the court below for framing charges as the court is bound to take evidence under section 244 of the Code before proceeding further under section 245 of the Code. 8. On the other hand, the counsel for the second respondent submitted that he was not responsible for the same though he was present for adducing evidence, the evidence was not taken after summons was issued to the accused and on the day he was absent, the court below had framed charge. So there is no irregularity and that will not violate the trial. 9. So there is no irregularity and that will not violate the trial. 9. It is an admitted fact that second respondent earlier filed a private complaint before the Judicial First Class Magistrate Court-II, Kochi, which was forwarded to the police for investigation under section 156(3) of the Code. Thereafter, after investigation, the investigating officer filed a refer report stating that further action dropped and on receipt of the refer report, the learned magistrate issued a notice to the second respondent-complainant and he appeared and filed a protest complaint which was numbered as Crl.M.P.2997/2011 and thereafter the learned magistrate has decided to proceed on that complaint under section 202 of the Code. Sworn statements of the complainant and witnesses were recorded and after recording the sworn statements of the witnesses including the complainant, the learned magistrate came to the conclusion that there is a prima facie case made out and decided to reject the refer report, and proceed with the private complaint filed by the complainant. It is seen from the proceeding paper that after the summons was issued to the accused, though it was posted for evidence of the complainant under section 244 of the Code, the case was adjourned on several occasions on notification and thereafter it was posted as last chance to 24.07.2013 for that purpose. On that day complainant was represented and filed an application to implead the new manager and that was posted for objection and that petition was allowed on 17.8.2013. Thereafter, also the evidence of the complainant and his witnesses under section 244 of the Code has not been taken. On 21.4.2014, it is seen from the proceeding paper that charge was framed and it was read over and explained to the accused and he pleaded not guilty and thereafter it was posted for evidence. This procedure is being challenged by the petitioner. 10. Once the magistrate has decided to proceed with the private complaint after rejecting the refer report, considering the fact that the offence alleged are punishable under section 420 and 406 of Indian Penal Code, warrant trial procedure has to be adopted. The court below ought to have taken the evidence of the complainant and witnesses again under section 244 of the Code and at the time the accused will be getting an opportunity to cross examine them. The court below ought to have taken the evidence of the complainant and witnesses again under section 244 of the Code and at the time the accused will be getting an opportunity to cross examine them. He may either opt for cross examination of the witnesses or he may defer the cross examination at the alter stage as well. But that is a right available to the accused. Only after evidence has been taken under section 244 of the Code and after hearing the parties on framing of charge, then if the court is satisfied that there are no materials to proceed against, then, the accused has get as a right to discharge under section 245 (1) of the Code and if there is materials to proceed against, then the charge can be framed and it will have to be proceeded further. If such a charge is framed, even then the accused will be getting an opportunity to challenge the same as well and such a right has been denied on account of the illegality committed by the court below in dispensing with recording evidence under section 244 of the Code of the complainant and his witnesses and decide to frame charge on the basis of the evidence taken as sworn statements at the time of pre cognizance stage which cannot be treated as evidence for the purpose of enquiry under section 244 of the Code. So the procedure adopted by the court below is illegal and the same is liable to be set aside. So the proceedings of the court below framing charges without complying with procedure under section 244 of the Code and without hearing on pre charge under section 245 of the Code is set aside and the matter is remitted to the court below for fresh disposal directing the learned magistrate to proceed with the stage of taking evidence under section 244 of the Code and dispose of the case afresh in accordance with law. Parties are directed to appear before the court below on 30.08.2014. Considering the fact that the case is of the year 2011, the court below is directed to complete the procedure of pre charge evidence and other formalities as expeditiously as possible. With the above directions and observations, the petition is allowed and disposed of. Office is directed to communicate this order to the concerned court immediately.