Praveen Kumar and Others vs State of U.P. and Another

Yogesh Chandra Gupta, J.—Heard learned Counsel for the - applicants, learned AGA for the State and perused the record.

By invoking the inherent jurisdiction of this Court, the applicants Praveen Kumar and two others have filed this application with the prayer to quash the charge-sheet and the entire proceedings of criminal case No. 3324 of 2010 pending against them before the CJM, Muzaffarnagar.

Briefly stated, one Mangey Ram, opposite party No. 2 lodged a report against the applicants which was registered as non-cognizable report No. 8 of 2010 at P.S. Kotwali, district Muzaffar Nagar. Complainant Mangey Ram moved an application u/s 155(2) Code of Criminal Procedure before the concerned Magistrate praying that the Police be directed to investigate into the matter. Pursuant to the order of the Magistrate, the case was investigated and after investigation a charge-sheet under Sections 323, 504, 506 IPC was filed in the Court. The Magistrate concerned taking cognizance, by his order dated 24.4.2010, summoned the applicants to face the trial for the offences punishable under Sections 323, 504, 506 IPC. Hence this application.

It is contended on behalf of the applicants that the offences under Sections 323, 504, 506 IPC are non-cognizable and in view of the explanation to Sections 2(d) Code of Criminal Procedure, the case could not proceed as a State case, but the Magistrate belying the procedure laid down for taking cognizance on a complaint, has taken cognizance directly on the charge-sheet which is against law. It may be pointed out that Explanation to Section 2(d) of Code of Criminal Procedure prescribes that "A report made by a police officer in a case which discloses, after investigation the commission of non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant,

Relying on the decision of Virendra Singh and Ors. v. State of U.P. and Ors., XLV 2002 ACC 609 Alld, it is next argued by the learned Counsel of applicants that the offence under Sections 5061 PC was declared cognizable and non-bailable vide U.P. Government Notification No. 777A/III-94 (2)-87 dated 2.8.1998, but the same has been held illegal by the Division Bench of this Court in the case of Virendra Singh (supra). Thus, the notification ceases to have any impact and the offence u/s 506 IPC remains to be non-cognizable and bailable. Learned Counsel for the applicants submits that the order passed by the learned Magistrate taking cognizance on the charge-sheet is erroneous, against law, vitiating the proceedings of the case, therefore, is liable to be quashed.

Learned AGA vehemently opposed the submissions made by the learned Counsel for the applicants.

I gave my earnest consideration to the submissions of learned Counsel for the applicants. It is true that in the first schedule of criminal procedure code, the offence u/s 506 IPC is described as non-cognizable and bailable, but by virtue of Section 10 of Criminal Law Amendment Act, the same was made cognizable and non-bailable in U.P. by the U.P. Government Notification No. 777/ VIII-94 (2)-87 dated 2.8.1998. Section 10 of the Criminal Law Amendment Act, 1932 gives power to the State Government to declare certain offences including Section 506 IPC to be cognizable and non-bailable and it provided that on issuance of the said notification the Code of Criminal Procedure, 1898 shall stand amended accordingly.

The legality and validity of this notification came for consideration before the Full Bench in the case of Mata Sewak Upadhyay and Anr. v. State of U.P. and Ors., 1995 JIC 1168 (All)(FB). Without going into the details of the decision, for the purpose of this case, it may be pointed out that the aforesaid decision lays down that Criminal Law Amendment Act, 1932 is not merely an Amending Act but that is a blend of substantive provisions as well as the provisions amending Code of Criminal Procedure of 1898. So the Act of 1932 is still on the statute book, notwithstanding the repeal of Code of Criminal Procedure 1898. It was further held that applying the Rule of construction as laid down in Section 8 of the General Clauses Act, it becomes clear that the notification issued u/s 10 with reference to Code of Criminal Procedure 1998 should be read as having been issued with reference to the Code of Criminal Procedure 1973. It was held that law has to be construed in such a fashion as to make it workable and enforceable than redundant. It was held that Section 10 of the Criminal Law Amendment Act, 1932 and Government Notification No. 777A/III-94 (2)-87 dated 2.8.1998 making Section 506 I.P.C. cognizable and non-bailable offence are valid.

To my mind, the decision of Mata Sewak Upadhyay (supra) has not been overruled nor anything has been argued in this respect by the learned Counsel for the applicants. It appears that at the time of hearing of the case of Virendra Singh (supra) the decision of Mata Sewak Upadhyay was not brought to the notice of the Hon''ble Division Bench. In view of the decision of Full Bench on the same subject, the decision of Division Bench cannot be given effect to

In view of the foregoing discussions it can safely be said that the offence u/s 506 I.P.C. is not non-cognizable as argued by the learned Counsel for the applicants. The provisions of Section 2(d) of Code of Criminal Procedure do not apply in the present case. The submission of leaned counsel of the applicants in this regard are ill-founded. The impugned order passed by the Magistrate does not suffer from any illegality. Accordingly, I do not find any merits in this application, which is liable to be dismissed and is, accordingly, dismissed.