Investigation into a non-cognizable offence without obtaining an order from a Magistrate under Section 155(2) of the Code is illegal.

( 1 ) BY this criminal revision petition under Section 397 read with Section 482 of the Code of Criminal Procedure (for short the Code), the petitioners seek quashing of order dated 27 August, 1996, by the learned Additional Sessions Judge, directing framing of charge against them under Section 323 read with Section 34, IPC.

( 2 ) ON 28 May, 1994 a fight is alleged to have taken place between the petitioners on the one hand and one Reghubar Dayal and his associates on the other. Reghubar Dayal was got medical examined by the police and on his complaint the police registered a case under Section 324 read with Section 34, IPC. Simultaneously, a case was also registered against Reghubar Dayal and some other persons under Section 308 read with Section 34, IPC. On the completion of investigations, challans were filed in both the FIRs. As per the MLC of Raghubar Dayal, he had abrasions on right hand, left knee and two linear scratches (superficial) on the left thigh, not requiring stitches. The injuries were opined as simple in nature. On consideration of material placed before it the learned Trial Court found a prima facie case against the petitioners under Section 323 read with Section 34, Indian Penal Code and framed a charge against them accordingly. It is this order which is impugned in this petition.

( 3 ) I have heard Mr. B. K. Sharma, learned Counsel for the petitioners and Mr. Pawan Behl, learned Counsel for the State.

( 4 ) IT is submitted by Mr. Sharma that it is evident from the MLC that the nature of the injuries sustained by the injured person namely, Reghubar Dayal, being simple, at best only an offence under Section 323, Indian Penal Code could be made out against the petitioners, which is a non-cognizable offence; the investigations carried out by the police without obtaining an order of a Magistrate under Section 155 (2) of the Code are null and void; there was no material before the police to register the FIR against the petitioners under Section 324, Indian Penal Code but the said provisions were invoked with a malafide intention in order to make it a cognizable offence. Relying on a decision of the Supreme Court in Keshav Lal Thakur v. State of Bihar, 1996 (2) Supreme (Cr.) 639=iv (1996) CCR 205 (SC), and of this Court in Brahmdutt and Ors. v. State and Ors. , 1996 JCC 183 it is pleaded that the investigations in the instant case being illegal the criminal proceedings emanating therefrom are liable to be quashed. I find force in the contention.

( 5 ) SECTION 155 (1) of the Code provides that when an information is given to an officer-in-charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State may prescribe in this behalf and refer the informant to the Magistrate. Subsection 2 of the said section creates a legal bar for the police to investigate into a noncognizable offence without obtaining an order from a competent Magistrate. It is a mandatory provision and investigation carried out, in violation thereof is illegal.

( 6 ) A perusal of the MLC dated 28 May, 1994 of Raghubar Dayal shows that when he was taken for medical examination, he was fully conscious and had abrasions on three parts of the body, namely, left hand, left knee and left thigh. Though as per the MLC the weapon allegedly used was blunt and sharp but the place where the nature of injuries has been mentioned, the Doctor has opined the injuries as "simple" and the victim did not require even hospitalisation, which shows that at the time of registration of the FIR at the instance of the victim, Reghubar Dayal, the police was fully aware of the fact that at best the petitioner could be booked under Section 323 read with Section 34, Indian Penal Code but with a view to assume jurisdiction to investigate, a case under Section 324, Indian Penal Code was regist