Hon’ble Amar Saran, J.—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) SCC 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 non-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-section (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 offence 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 the 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., 2001(1) UP Cr R 147. This is a judgment of two paragraphs which may be quoted as under :

“Heard learned counsel for the parties.

It has not been disputed that a report was registered at the police station and, therefore, in view of the prohibition imposed by sub-section (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 allo