ATUL KESHARWANI Vs. STATE OF U P

JUDGEMENT

(1.) VINOD Prasad, J. Heard learned Counsel for the revisionist and the learned A. G. A.

(2.) C. J. M. Etawah has (sic not) discharged the accused on the ground that he is taken cognizance and the accused who had got a right to challenge taking of cognizance did not challenge it. The impugned order dated 11-10-2006 passed by C. J. M. , Etawah in Case No. 539 of 2003, State v. Atul Keshawani, under Section 304 A I. P. C. suffers from patent error of law. Cognizance is taken under Section 190 (1) (b) Cr. P. C. on the basis of a charge-sheet. Taking of cognizance by a Court under Section 190 (1) (b) Cr. P. C. does not in any way eclipses the power of the accused to seek discharge under Section 239 Cr. P. C. nor it (sic) the said right merely because the cognizance has been taken by a Court. The accused is at liberty to convince the Court that the cognizance taken by it is bad in law and he is entitled to be discharged as his prosecution will be empty formality or he has not committed any offence or that there is no credible material against him in the case diary.