RAM AUTAR SINGH,J. - (1.) THIS appli­cation has been moved under section 482 Cr. P.C. on behalf of the applicant Rama Kant and three others against State of U.P. and Smt. Suneeta with prayer to quash proceedings of Criminal Case No. 84/2008 State v. Rama Kant and others under sections 452, 323, 504, 506 I.P.C., P.S. Jalaun, District Jalaun, pending in the Court of Judicial Magistrate, Jalaun, with the allegations that opposite party No. 2 Smt. Suneeta had lodged an F.I.R. under sections 498-A, 323 I.P.C. against applicants No. 1 and 2 etc. through application under section 156(3) Cr. P.C. The investigating officer submitted charge-sheet in the case and applicant No. 1-stood trial in criminal case No. 996/95 and he was acquitted of the charges lev­elled against him by Judicial Magistrate, Jalaun vide Judgment and order dated 1.12.1999. The opposite party No. 2 also filed an application under section 125 Cr. P.C. before Judicial Magistrate, Jalaun, which was allowed. She again moved an application under section 156(3) Cr. P.C. before Judicial Magistrate, Jalaun, which was registered as Criminal Misc. Applica­tion No. 79/07 Smt. Suneeta v. Rama Kant and others and the police registered an F.I.R. against the applicants in compliance of the order dated 18.5.2007 passed by the Judi­cial Magistrate, Jalaun and the Case was registered at Crime No. 37/2007 under sections 452, 323, 504, 506 I.P.C. The police investigated the case and found the same to be false and ultimately submitted a final report No. 16/07 on 30.5.2007. The Judicial Magistrate, Jalaun, issued notice to oppo­site party No. 2 in Criminal Case No. 59/07 and opposite party No. 2 filed a protest petition under section 190(1)(c) Cr. P.C. on 20.9.2007 along with her affidavit and also affidavits of her witnesses Ramdas and Upendra to this effect that the investigating officer did not record their statements and submitted final report. The Judicial Magis­trate, Jalaun, considering the protest peti­tion and affidavits filed by opposite party No. 2 and her witnesses Ramdas and Up­endra took cognizance and summoned the applicants to face trial vide his order dated 19.1.2008.
(2.) I have heard Sri B.N. Singh, learned Counsel for the applicants, Sri Ajay Sepgar, learned Counsel for opposite party No. 2 and learned A.G.A. for opposite party No. 1 on this application under sec­tion 482 Cr. P.C. and perused the record. The learned Counsel for the appli­cant has contended that the order passed by the Magistrate is illegal and the proce­dure adopted by him is not in accordance with law. The learned Counsel for the ap­plicants has relied on judgments of this Court in the cases of Shamsher and others v. State of If. P. and another 2009 (66) ACC 484 (All.). Mohd. Yusnf and others v. State of U.P. and another, 2007 (59) ACC 878 (All.) and Manoj Kumar Singh and others v. State of U.P. and another 2007 (59) ACC 988 (Alld.). wherein this Court has observed that where the Magistrate decides to take cognisance under section 190 (1) (b) of the Code on the basis of final report he can act upon the statements of the witnesses re­corded by the Investigating Officer in the case-diary and material collected by him during investigation. It is not permissible to consider any material other than that col­lected by the Investigating Officer. In case cognizance is taken on the basis of protest petition and accompanying affidavits, the Magistrate should adopt the procedure of complaint case as contemplated under Chapter XV of the Code and record the statements of the complainant and wit­nesses under sections 200 and 202 of the Code, 'the Magistrate having taken cogni­zance under section 190(1)(b) of the Code after taking into consideration the facts stated in the protest petition and accompa­nying affidavits, the impugned order is against the settled legal position and cogni­zance is vitiated.
(3.) IN view of the above proposition of law laid down by this Court in the above cases, the learned Magistrate has commit­ted illegality in passing the impugned or­der, because he has relied on the protest petition and accompanying affidavits filed by opposite party No. 2 Smt. Suneeta. The learned Magistrate in such case should have adopted the procedure of complaint case provided under Chapter XV of the Code and recorded the statements of the complainant and witnesses, who had filed their affidavits, under sections 200 and 202 Cr. P.C. The Magistrate could not take cog­nizance under section 190 (1) (b) Cr. P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate could not consider extraneous material i.e. protest petition and affidavits while taking cognizance under section 190 (1) (b) of Cr. P.C. Consequently the order passed by the learned Magistrate suffers from illegal­ity and is liable to be set aside.;