JUDGMENT Amar Saran, J.
1. I have heard learned counsel for the parties and perused the record.
2. In this case, initially the FIR was lodged as a non-cognizable report (NCR) at police station Phoolpur, District Allahabad under Sections 323 and 504 IPC on 8.7.1999 at 5 pm about an incident dated 8.7.1999. The allegations in the NCR lodged by Jagannath were that as the cattle of the accused had entered his field, when his wife and son tried to drive the animals out of the field, there was an exchange of hot words with the applicants who beat Devkali and Kamlesh with lathies and dandas and caused injuries on the head of Devkali and arms and fingers of Kamlesh. Subsequently, it appears that on the basis of the medical report the case was converted to one under Sections 323, 324 and 325 IPC by the investigating officer and subsequently he even added Section 308 IPC when he submitted the charge-sheet on 12.10.1999.
3. The main contention of the learned counsel for the applicants was that the investigation by the investigating officer was unauthorized as it was a non-cognizable case and in view of Section 155(2) Cr.P.C. the investigation could not have been initiated in the case without any order of a Magistrate who had power to try or commit the case for trial. Learned counsel for the applicants also relied on paragraph 34 of State of Haryana v. Ch. Bhajan Lal 1992 Supp (1) 335. The said passage reads as follows:
In this connection, it may be noticed that though a police officer cannot investigate a non-cognizable offence on his own as in the case of a cognizable offence, he can investigate a nan-, cognizable offence under the order of a Magistrate having power to try such non-cognizable case or commit the same for trial within the terms under Section 155(2) of the Code but subject to Section 155(3) of the Code. further, under the newly introduced Sub-secttion (4) to Section 155, where a case relates to two offences of which at least one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offences are non-cognizable and, therefore, under such circumstances the police officer can investigate such offences with the same powers as he has while investigating a cognizable offence. "
4. It may be noticed that the aforesaid passage itself refers to Section 155(4) of the Cr.P.C. which clearly provides that if one of the offences for which an accused is being implicated is cognizable, then the case shall be deemed to be a cognizable case notwithstanding that the other offence was not cognizable. If that was the position, then as the applicants were also allegedly involved in an offences under Sections 325 and 308 IPC, which are clearly cognizable offences, hence the investigating officer had the power of investigating the case even without an order of the Magistrate.
5. It is then contended that that investigating officer only on the basis of the medical report without taking opinion of the doctor made it a case under Sections 325 and 308 IPC. In my opinion, there is no fetter on the investigating officer converting the case under Sections 325 and 308 IPC on the basis of the injury report if in his opinion the circumstances of the case makes out such allegations which constitute those offence even if he does not examine the medical officer.
6. Learned counsel also relied on a single-Judge decision of this Court in the case of Surendra v. State of U.P. reported in 2001(1) UP Cr R 147. This is a judgement of two paragraphs which may be quoted as under:
Heard learned counsel for the parties.
1. It has not been disputed that a report was registered at the police station and, therefore, in view of the prohibition imposed by Sub-secttion (2) of Section 155 Cr.P.C. the police had no power to investigate the said non-cognizable case without permission of the magistrate and to submit charge sheet under Section 308 IPC. The Charge-sheet is, therefore, illegal and deserves to be quashed.
2. The application is allowed. The impugned charge-sheet is quashed. However, it shall be open to the investigating officer to investigate the case after obtaining the permission of the magistrate to investigate it.
7. This decision does appeal to support the prosecution case but the opinion appears in per incuriam of the decisions of the Apex Court which have clearly provided that even if there is some irregularity in the investigation, the charge-sheet on its basis is not rendered illegal. In this connection reference may be made to Section 21 of the decision of Apex Court in Union of India v. Prakash P. Hinduja . The said paragraph is being extracted hereunder:
21. An incidental question as to what will be the result of any error or illegality in investigation on the trial of the accused before the court may also be examined. Section 5A of the Prevention of Corruption Act, 1947 provided that no police officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under Section 161, Section 165 and Section 165A 1PC or under Section 5 of the said Act without the order of a Magistrate of the First Class. In H.N. Rishbud the investigation was entirely completed by an officer of the rank lower than the Deputy Superintendent of Police and after permission was accorded a little or no further investigation was made. The Special Judge quashed the proceedings on the ground that the investigation on the basis of which the accused were being prosecuted was in contravention of the provisions of the Act, but the said order was set aside by the High Court. The appeal preferred by the accused to this Court assailing the judgment of the High Court was dismissed and the following principle was laid down: (AIR pp. 203-04, para 9) '9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises.
A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading 'Conditions requisite for initiation of proceedings'. The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199.
These latter sections regulate the competence of the court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. Wiiile no doubt, in one sense, Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial' The court after referring to Parbhu v. Emperor AIR 44 P.C. 73 and Lumbhardar Zutshi v. R. AIR 1950 P.C. 26 held that if cognizance is in fact taken on a police report initialed by (he breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial, which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice and that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial. This being the legal position, even assuming for the sake of argument that CB1 committed an error or irregularity in submitting the charge-sheet without the approval of CVC, the cognizance taken by the learned Special Judge on the basis of such a charge-sheet could not be set aside nor could further proceedings in pursuance thereof be quashed. The High Court has clearly erred in setting aside the order of the learned Special Judge taking cognizance of the offence and in quashing further proceedings of the case.
8. I also find that the alleged irregularity of the police officer in not being empowered to investigate the case is not one of the irregularities mentioned in Section 461 Cr.P.C. which vitiates proceedings and moreover in Section 460(b) it is even provided that if any Magistrate not empowered by law orders, under Section 155, the police to investigate an offence, then the irregularity does not vitiate the proceedings. Moreover, it is not claimed that there was any miscarriage of justice or that the applicants had been prejudiced in any manner by the police investigating the offence without obtaining permission of the Magistrate.
9. In this view of the matter, I find no error in the order taking cognizance on the basis of the charge-sheet submitted against the applicant. According, there is no force in this application and it is rejected.
10. However, in the circumstances of the case if the applicants have not already been released on bail, if they appear before the courts below and apply for bail within a month the same shall be disposed of expeditiously.