All HC | Cognizance taken in a criminal case after taking extraneous material into consideration, is against the law and not sustainable

Allahabad High Court: Om Prakash-VII, J. allowed the application filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of a summoning order passed by the Chief Judicial Magistrate, Agra in a case filed under Sections 463, 464, 466, 467, 468, 471, 474 of the Penal Code, 1860.

Taking cognizance on the basis of protest petition was set aside as the Magistrate took extraneous material into consideration.

An application was filed to quash the summoning order and criminal case proceedings initiated by Chief Judicial Magistrate, Agra, against the appellant.

Counsels for the Applicant, Vimlendu Tripathi, M.C. Chaturvedi and S.C. Dwivedi submitted that the concerned Magistrate took cognizance in the matter against the applicant by taking into consideration extraneous facts and evidence annexed with the protest petition rejecting the final report which was illegal. It was further contended that the prosecution against the applicant was barred by Section 197 CrPC as the alleged act came under the purview of discharge of official duty.

Rishabh Agarwal, appearing on the behalf of the respondent, submitted that mere exoneration in the departmental enquiry would not be sufficient to quash the criminal prosecution, and since the case was made out from the evidence available in the case diary itself, therefore, there was no illegality in the impugned order.

The Court relied on Ram Chandra Sharma v. State of Uttar Pradesh, 2016 SCC OnLine All 3375 where it was held that exoneration in departmental proceedings does not render the criminal proceedings arising out of the same, liable to be quashed. But in peculiar circumstances, a criminal proceeding can be quashed.

It was noted by the Court that in the present case evidence which was not part of the case diary was taken into consideration by the concerned magistrate while passing the impugned order whereby cognizance was without following the procedure prescribed under Chapter XV of CrPC. Since in the present matter neither enquiry has been conducted under Chapter XV of the CrPC by the Magistrate nor the documents, facts and evidence relied upon by the concerned Magistrate were part of the case diary, therefore on the basis of the same, the order against the applicant was held to be against the law and not sustainable.

In such view of the matter, the High Court allowed the application and the impugned order was set aside. The matter was sent back to the Magistrate to pass a new order in accordance with law. [N.K. Janoo v. State of Uttar Pradesh, Application No. 31673 of 2016, decided on 22-11-2019]

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