IMPORTANT POINT
The trial following an invalid investigation does not vitiate the result unless miscarriage of justice has been caused.

JUDGMENT (Oral)

1. By way of present petition filed under Sections 482 and 483 Cr.P.C., the petitioner seeks to assail order dated 23.06.2023 passed by the learned M.M., Dwarka, New Delhi vide which charges have been framed against the petitioner and other accused persons for the offence under Sections 323/427/34 IPC.

2. Briefly, the FIR in the present case came to be registered on the complaint of one Jitender Hallan wherein he alleged that certain disputes arose between him and his business partners Kamaljeet and Yashpal Sharma and that on 04.12.2017, Kamaljeet and one Pammy Solanki @ Pannu reached the construction site and on instructions of the petitioner, complainant and his employees were given beatings. After investigation, charge-sheet came to be filed under Sections 323/341/308/427/34 IPC. While hearing arguments on charge, learned ASJ came to the conclusion that there was no sufficient evidence to frame charge for the offences punishable under Sections 308/341 IPC however, he found enough material for framing of charges under Sections 323/427/34 IPC. As the offences under Sections 323/427/34 IPC were triable by the Magistrate, the matter was remanded to the court of concerned M.M vide order dated 18.08.2022. The concerned M.M. thereafter passed the impugned order.

3. In the aforesaid backdrop, the petitioner's case rests solely on the submission that the charged offence being non-cognizable, there is non-compliance of Section 155(2) Cr.P.C., as no prior permission was taken from the Magistrate before investigation. This submission is misplaced and rejected. In N.K. Sharma v. State, Order/judgement dated 20.09.2002 passed in CRL.Misc.Main. 2042/2001, a Division Bench of this Court was faced with an almost similar issue, wherein while answering the reference, it was observed:

"It is one thing to say that the allegations made in the first information report does not disclose a cognizable offence and it is another thing to say that either upon investigation or at the time of trial the Court having regard to the materials on record come to a conclusion that in fact the accused is guilty of offence which was non-cognizable in nature.

Furthermore even at this stage, the accused persons cannot take recourse of the provisions of Section 482 of the Code of Criminal Procedure praying for quashing of first information report inasmuch as not only charge-sheet has been filed but cognizance of the offence has been taken by the Magistrate concerned in exercise of his power under Section 190 of the Code of Criminal Procedure. The very fact that the learned Magistrate upon application of his mind on the basis of the material which was pressed before him pursuant to or in furtherance of the investigation carried out satisfied himself that there exists materials for taking cognizance of a cognizable offence and further more even came to the conclusion that an order directing charge under Section 324/34 IPC should be framed, it cannot be said that in this situation, Section 155(2) of the Criminal Procedure Code would come into play. The decision of the learned Single Judge of this Court in Mam Chand (supra) must be viewed from that angle. In that case the learned Single Judge has come to the conclusion that having regard to the material on record no cognizable offence was found to have committed. In that view of the matter and relying upon the decisions referred to therein it was held:

"I do not find much substance in the contention urged on behalf of the State that since the FIR was registered under Section 324 IPC and the said offence being cognizable, there was no bar in the police investigating the case. Once, on the circumstances prevalent at the time of registration of the case, it is evident that a non-cognizable offence is not made out, permitting the police to first register a cognizable offence, carry out investigations and ultimately if it is found that a cognizable offence was not made out, would be giving a long rope to the police