# Dharam Pal and others v. State of U.P. and another

- **Citation:** (2006) 1 ILRA 155
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-04
- **Case number:** Criminal Misc. Application No. 3215 of 2004
- **Bench:** Amar Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharam-pal-and-others-v-state-of-u-p-and-another-40632
- **Pages:** 5

## Headnote

Code
of
Criminal
Procedure-Section155(4)- of Investigation-without order
of Magistrate in NCR cases-offence u/s
323/504 IPC-if the one offence is
cognizable and the
other one non
cognizable-Investigation
officer
has
power
of
investigation
without
permission
of
Magistrate-held-such
irregularity
does
not
vitiates
the
proceeding-application
rejected
with
observation of expectation disposal of
bail application.

Held: Para 4 and 8

It may be notices 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 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.

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.
Case law discussed:
2001 (1) UPCRR-147 distinguished
2003 (6) SCC-195 relied

## Text

1 All] Dharam Pal and others V. State of U.P. and another
155

43. That the contents of paragraph
No. 21 ground (A) of the writ petition
are factually incorrect. Determination
of age is one of the responsibilities of
Enrolling Officer. There is no denying
the fact that date of birth entered in
education certificate, particularly High
School certificate is normally accepted
at
the
time
or
enrollment.
But
candidates on their part are also
required to give correct age through
their documents/statements. In order to
detect candidates using unfair means to
seek enrollment by reducing their age
such cases are referred to Military
Hospital authorities for their decision.
As the date of birth entered in High
School certificate in such fraud cases
can be verified through well established
medical norms only. The petitioner has
attempted to get enrolled by fraudulent
means by giving false proof of age. His
candidature thus stands automatically
rejected irrespective of the fact whether
he still fulfills other eligibility criteria
or not.

11. In the opinion of the Court the
stand so taken by the respondents is
totally misconceived. It is admitted that
the petitioner had passed High School
examination in the year 1985. The High
School examination certificate issued by
the Madhyamik Shiksha Parishad U.P.,
Allahabad, records the date of birth of the
petitioner as 13.12.1985. Under the
provisions of Section 7 (7) of the
Intermediate Education Act, the result of
the petitioner has been declared in the
official gazette. In view of the aforesaid
facts read with Section 79 to 81 of the
Evidence Act, the High School certificate
produced by the petitioner is to be taken
to be factually correct, unless and until
established by some cogent evidence to be
otherwise.
The
respondents
have
disclosed no material to doubt the
correctness of the date of birth as
mentioned in the High School certificate
nor they could have insisted upon the
petitioner
to
get
himself
medically
examined. Even the report of the
Radiology Specialist which is based on
mere presumption drawn from certain
biological
examination
records
the
approximate age of the petitioner as more
than 20 years only. The report even if
accepted did not establish that the
petitioner was beyond the maximum age
limit prescribed. There is hardly any
appreciable difference in the date of birth
as recorded in the High School certificate
viz. a viz. the age presumed under the
report of the Radiology Specialist. In
these circumstances the respondents were
not justified in declaring the petitioner
unfit for the post of Soldier (G.D.). The
order dated 21.4.2004 is quashed. The
respondents are commanded to admit the
petitioner as Soldier (G.D.) within four
weeks from the date a certified copy of
this order is filed before the Respondent
No. 3. Writ petition is allowed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.01.2006

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Misc. Application No. 3215 of
2004

Dharam Pal and others
...Applicants
Versus
State of U.P. and another

 ...Opposite parties

Counsel for the Applicants:
Sri S.K. Dubey
156 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Counsel for the Opposite Parties:
A.G.A.

Code
of
Criminal
Procedure-Section155(4)- of Investigation-without order
of Magistrate in NCR cases-offence u/s
323/504 IPC-if the one offence is
cognizable and the
other one non
cognizable-Investigation
officer
has
power
of
investigation
without
permission
of
Magistrate-held-such
irregularity
does
not
vitiates
the
proceeding-application
rejected
with
observation of expectation disposal of
bail application.

Held: Para 4 and 8

It may be notices 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 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.

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.
Case law discussed:
2001 (1) UPCRR-147 distinguished
2003 (6) SCC-195 relied

(Delivered by Hon'ble 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 Jagnnath were tat 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 noncognizable 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 Vs. Ch. Bhajan Lal: 1992 Supp
1 All] Dharam Pal and others V. State of U.P. and another
157
(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 noncognizable offence under the order of a
Magistrate having power to try such noncognizable 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 notices 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 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
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 Vs. State of U.P.,
reported in 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 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 appear 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
158 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Apex Court in Union of India Vs. Prakash
P. Hinduja: (2003) 6 SCC 195. 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 5-A 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 165-A IPC or
under Section 5 of the said Act without the
order of a Magistrate of the First Class.
In H.N. Rishbud AIR 1955 SC 196 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. While 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.'
1 All] Diwakar Rai V. The Dy. Director of Consolidation and others
159

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 initiated by the 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 CBI committed an error or
irregularity in submitting the chargesheet 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.

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.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2005

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No.67402 of 2005

Diwakar Rai

 ...Petitioner
Versus
The Deputy Director of Consolidation,
Azamgarh and others
 ...Respondents

Counsel for the Petitioner:
Sri Rajendra Rai

Counsel for the Respondents:
S.C.

U.P. Consolidation of Holdings Act-1956Section-9, 12 and 27-Partition of chakonce the possession given based upon
records of rights-chak attains the status
of Holdings-as such partition of holdingpossible if the cause of action arises
before the date of notification under
section 52 of the Act.

Held: Para 11 & 12