Evidence Not Collected By IO Nor Part Of Case Diary Can't Form Basis For Taking Cognizance: Allahabad HC [Read Judgment]

"concerned Magistrate while dealing with the final report in a criminal case is not competent to take into consideration the extraneous material at the time of taking cognizance straightaway on the protest petition without following the procedure prescribed under Chapter XV of Cr.P.C. Evidence which are not part of the case diary nor have been collected by the Investigating Officer could not be based for taking cognizance," Justice Om Prakash-VII said.

The Applicant N.K. Janoo, accused of preparation of forged documents for supply of the pindi plants to obtain "Ravanna" payments, had approached the high court assailing the order of Chief Judicial Magistrate, Agra, for having been passed based on extraneous material. The counsels for the Applicant, Suresh C. Dwivedi, MC Chaturvedi and Vimlendu Tripathi submitted:

1. After investigation, the IO had submitted a closure report. However, based on the extraneous facts and evidence annexed with the protest petition filed by the Complainant/ Opposite party, the Magistrate rejected the final report and straightaway took cognizance in the matter. Moreover, the impugned order was passed in light of the evidence which was not part of the case diary nor collected by the IO during investigation.
2. Even if a case was made out against the Applicant, his actions were discharged during the course of official duty and hence the prosecution was barred by Section 197 CrPC as the IO had not obtained prior sanction of the competent authority.
3. Departmental enquiry into the said allegations had already been concluded wherein he was exonerated.

Findings

The Court did not find merit in the latter two arguments raised by the Applicant. It said,

"It is settled position of law that exoneration in disciplinary proceeding by itself is not a ground for quashing the criminal proceeding and if alleged act for which allegations have been leveled against the accused for criminal prosecution does not come under the purview of discharge of official duty, there is no necessity to obtain prior sanction of the competent authority for prosecution."

However, the court concurred with the first argument that the Magistrate ought to not have relied on extraneous material that did not form part of the investigation. The court remarked,

"It is evident that evidence which was not part of the case diary was taken into consideration by the concerned Magistrate while passing the impugned order whereby final report has been rejected and straightaway cognizance has been taken in the matter on the protest petition without following the procedure prescribed under Chapter XV of Cr.P.C. If original "Ravannas" were not part of the case diary then concerned Magistrate ought not to have taken into consideration the same at the time of passing of the impugned order."

Holding that there was no occasion to take cognizance in the matter, the court added,

"Since in the present matter neither enquiry has been conducted under Chapter XV of the Criminal Procedure Code by the concerned Magistrate nor the documents/facts/evidence which have been relied upon by the concerned Magistrate were part of the case diary, therefore, on the basis of aforesaid sole ground, impugned order dated 20.7.2016 passed against the applicant whereby applicant was summoned to face trial, in the opinion of the court, is against the law and same is not sustainable. There was no occasion to take cognizance straightaway rejecting the final report."

Hence, it was held that the impugned order, taking cognizance straightaway on the basis of protest petition, was liable to be set aside for having resorted to extraneous material.

The State was represented by Govt. Advocate Rishabh Agarwal.

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