A Magistrate must address under Section 245(1) Cr.P.C. whether a case is made out warranting conviction before proceeding to frame charges.

O R D E R

The revision petitioners are the accused Nos.1, 5 and 6 in C.C. No.105/2002 on the files of the Judicial First Class Magistrate's Court, Kolenchery. Annexure-I complaint was filed against the revision petitioners and others by the 1^st respondent herein alleging violation of Section 21 of the Air Act and orders issued by the Pollution Control Board under Sections 31 and 37 of the Air Act. The revision petitioners and others filed Crl.M.C.No.3608/02 before this Court to quash Annexure-I complaint. This Court, by Annexure-X order, quashed the complaint against all the petitioners therein except accused Nos.1, 5 and 6, who are the revision petitioners herein. In that judgment, this Court directed the Pollution Control Board to produce all relevant records, as would be demanded by the Magistrate, for the purpose of establishing violation of provisions under Sections 21 and 31A of the Act and further directed the Magistrate to find out whether any prima facie case has been made out so as to proceed under Section 37 of the Act.

2. In compliance with the said direction in Annexure-X order of this Court, the learned Magistrate, after referring to the documents produced by the Pollution Control Board, passed Annexure-XI order finding that a prima facie case is made out against the revision petitioners. The said order was challenged before this Court in Crl.R.P.No.3339/09 and by Annexure-XII order, this Court set aside Annexure-IX order and directed the Magistrate to proceed in accordance with the directions therein. In that order, this Court observed that only if definite findings are arrived at with the documents produced by the Board make out a case for violation of the provisions in the operation of the company, the accused could be proceeded further. Thereafter, this Court directed the parties to appear before the court below on 5.11.2011 and the Magistrate was directed to proceed with further steps on the complaint in accordance with law.

3. After appearance of the parties on 5.11.2011, the proceedings started under Section 244 (1) on 3.12.2011. Eight witnesses were examined for the prosecution as PW1 to PW8 and 7 documents were marked as Exts.P1 to P7. Three other documents produced by the prosecution were also marked in a later stage, as Exts.D1 to D3. The documents produced by the Pollution Control Board were marked as Exts.X1 to X5. In compliance with the Supreme Court decision in Ajoy Kumar Ghose Vs. State of Jharkhand and another ((2009) 14 Supreme Court Cases 115), the accused were given an opportunity to cross-examine PW1 to PW8. This proceeding went on from 3.12.2011 to 10.10.2012. Thereafter, on 9.1.2013, the accused and the complainant prayed for hearing. For hearing, the case was posted to 30.1.2013. On 30.1.2013, the accused again prayed for hearing. For hearing, the case was again called on 14.2.2013. On 14.2.2013, the complainant was present. Accused was absent and the matter was again posted to 28.2.2013. On 28.2.2013, the case was again posted to 7.3.2013. On 7.3.2013, accused Nos.1, 5 and 6 were absent and applied. Complainant was absent. The learned Magistrate then passed an order as follows:“I am satisfied from the evidence that there is sufficient materials to frame charge against the accused u/s 37 of the Act. For framing charge. Accused should be present. Call on 09.4.13.” On 9.4.2013, the accused were absent and applied. For framing charge, the case was posted to 29.5.2013. On 29.5.2013 also the accused were absent and the case was again posted to 21.6.13. Admittedly, now the case is posted for framing charge and the case was being adjourned from 14.2.13 onwards for framing charge.

4. The legality and propriety of the procedure adopted by the learned Magistrate for framing charge, without passing an order under Section 245 (1) of the Cr.P.C. is under challenge in this Revision Petition.

5. The learned counsel for the revision petitioner, in support of the grounds raised in this Revision Petition, sub