The subsequent framing of charges under a different section does not vitiate the investigation or the filing of the charge-sheet.

ORDER :

G.B. Pattanik, Brijesh Kumar, JJ.

Leave granted.

2. The sole question that arises for consideration is, whether on account of infraction of sub-section (2) of Section 155 of the Code of Criminal Procedure (Cr.P.C.) it would be competent for the High Court to quash the criminal proceeding including the filing of chargesheet and the recording of evidence ?

3. As it appears, on the basis of allegations made in the F.I.R. the investigating agency investigated into the same and filed a charge sheet under Sections 324 and 341 IPC. The Magistrate, however, while framing charge, being of the opinion that no case under Section 324 IPC has been made out, framed a charge under Section 323 IPC. The criminal proceeding continued and four witnesses have been examined in the meantime. The accused then moved for quashing of the proceeding on the ground that in respect of an offence under Section 323 IPC the police officer cannot investigate without ...2 2 the order of a Magistrate having the power to try such case and, as such, the very investigation is totally vitiated and consequently the filing of charge-sheet and any action taken thereunder by the Magistrate gets vitiated. The Magistrate as well as the Sessions Judge rejected the prayer of the accused. The High Court, by the impugned judgment, having quashed the charge-sheet as well as the subsequent proceeding, the complainant is in appeal to this Court.

4. M.Sanghi, learned counsel appearing for the complainant, contends that at the stage when the police investigated into the allegations made in the F.I.R. and filed a charge-sheet under Section 324 IPC, there was no infirmity with the same and, therefore, the subsequent framing of charge under Section 323 IPC would not vitiate the investigation in question. Lalit, learned counsel appearing for the accused, on the other hand, contended that in the case in hand the FIR does not disclose any cognizable offence or offence under Section 324 IPC and in such a case the mandatory requirement of sub-section (2) of Section 155 Cr.P.C. could not be flouted in the garb of filing a charge-sheet under Section 324 IPC and giving it a colour of existence of a cognizable offence and consequently the Court would be fully justified in interfering with the investigation made as well as the subsequent stage of the proceeding including the taking of cognizance and recording of evidence.

5. Having examined the provisions of Cr.P.C. including the provisions contained in sub-sections (2) and (4) of Section 155 as well as the host of provisions dealing with the question of irregularity in the matter of investigation, we are of the considered opinion that the High Court was not justified in setting aside the entire proceeding on a conclusion that the charges having been framed under Section 323 IPC, the police was incompetent to investigate into the offence and as such the very filing of charge-sheet and at every subsequent stages of the proceeding, is erroneous. The very purpose of investigation is to collect the evidence relating to commission of offence for establishing the accusation against the offender. In a matter like this, it would always be necessary for the Court to examine that if the accused in any way has been prejudiced by the steps taken by the investigating agency and further by the Court in proceeding with the matter. Neither we find any prejudice on the part of the accused nor are we in a position to hold that there was any infirmity with the investigation being conducted in the case in hand; particularly when the police submitted the charge-sheet under Sections 324 and 341 IPC. The subsequent order of the Magistrate framing charge under Section 323 IPC would not vitiate the investigation carried on nor the filing of the charge-sheet.

6. In the aforesaid premises, the impugned judgment of the High Court is set aside.

The Magistrate before whom the trial is pending, is directed to conclude the trial as expeditiously as possible.

The appeal stands