Allahabad High Court
Manoj Rana vs State Of U.P. And Others on 5 October, 2012
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 44
Case :- APPLICATION U/S 482 No. - 22517 of 2012
Petitioner :- Manoj Rana
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Vivek Kumar Singh,Ajay Kumar Singh
Respondent Counsel :- Govt.Advocate
Hon'ble Ramesh Sinha,J.
Heard Sri Vivek Kumar Singh, learned counsel for the applicant, learned AGA for the State and perused the record.
As the matter involves a pure question of law, is squarely covered by a Full Bench Decision of this Court, hence, no notice is required to be given to the opposite party nos.2 to 5 of the application and the matter is disposed of after hearing the learned AGA on behalf of the State.
By invoking the inherent jurisdiction of this Court, the applicant has filed the present application under Section 482 Cr.P.C. with the prayer to quash the impugned order dated 25.5.2012 passed by Additional Sessions Judge, Court No.15, Meerut in Criminal Revision No. 54 of 2012, Hukam Singh and others Vs. State of U.P. and another, Police Station Daurala, District Meerut.
Briefly stated, an FIR was lodged by the applicant against opp. parties No. 2 to 5 as Case Crime No. 755 of 2009, under Section 147, 452, 323, 504, 506 I.P.C. at Police Station Daurala, District Meerut on 11.11.2009 regarding the incident dated 15.7.2009. Thereafter, the police investigated the matter and Section 452 I.P.C. was not found to be true by the police but rest case was found to be true and the police submitted charge sheet under Sections 323, 504, 506 I.P.C. against the opp. parties No. 2 to 5. Learned Magistrate took the cognizance of the officence vide order dated 1.4.2010. Thereafter, the opp. parties No. 2 to 5 challenged the aforesaid order in criminal revision No. 54 of 2012 on the ground that the learned Magistrate has wrongly taken cognizance for offence vide order dated 1.4.2010 and the case should not be proceeded as complaint as the offences are non-cognizable offence and the State cannot proceed. Learned Revisinal Court vide order dated 25.5.2012 allowed the criminal revision for the reason that the offence under Section 506 I.P.C. is non-cognizable offence and the case should proceed as complaint case and summoned the applicant to face the trial for the aforesaid offences.
It is contended on behalf of the applicant that the lower revisional court has wrongly placed reliance on the Division Bench of this Court in the case of Virendra Singh and others versus State of U.P. and others [2002 (45) ACC 609 Alld., wherein it was held that the offence under Sections 506 IPC was declared cognizable and non-bailable vide U.P. Government Notification no.777/VIII-9-4 (2)-87 dated 31.7.1989, 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 under Section 506 IPC remains to be non-cognizable and bailable. Learned counsel for the applicants submits that the said judgment of the Division Bench is not a good law as it has failed to consider a Full Bench decision of this Court in the case of Mata Sewak Upadhyay versus State of U.P. 1995 JIC 1168(All) (FB) where the legality and validity of this notification came for consideration. Without going into the details of the decision, for the purpose of this case, it may be pointed out that the aforesaid Full Bench 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 Cr.P.C. of 1898. So the Act of 1932 is still on the statute book, notwithstanding the repeal of Cr.P.C. 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 Cr.P.C. 1998 should be read as having been issued with reference to the Cr.P.C. 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.777/VIII-9-4 (2)-87 dated 31.7.1989 making Section 506 I.P.C. cognizable and non-bailable offence are valid.
The learned A.G.A. could not dispute the aforesaid proposition of law as has been held by the Full Bench decision in the case of Mata Sewak Upadhyay (supra).
The decision of Mata Sewak Upadhyay (supra) still holds good and has not been overruled nor anything has been argued in this respect by the learned A.G.A. It appears that at the time of hearing of the case of Virendra Singh (supra) the decision of Mata Sewak Upadhyay (supra) 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 under Section 506 I.P.C. is not non-cognizable, hence the impugned order passed by the lower revisional court cannot be sustained in the eye of law. The provisions of Section 2(d) of Cr.P.C. do not apply in the present case. The submission of leaned counsel of the applicant in this regard finds force. The impugned order passed by the lower revisional court is set aside and the order of the Magistrate dated 1.4.2010 is hereby restored. Accordingly, the matter is sent back to the Magistrate, who may proceed in the case in accordance with law.
The application stands allowed.
Order Date :- 5.10.2012
NS
