Allahabad High Court
Bhagwan Singh And Another vs State Of U.P. And Another on 4 October, 2016
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 54
Case :- APPLICATION U/S 482 No. - 29392 of 2016
Applicant :- Bhagwan Singh And Another
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Jai Prakash Singh
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Vijay Lakshmi,J.
Heard learned counsel for the applicants and learned AGA for the State.
This is an application under Section 482 Cr.P.C. for quashing the charge sheet dated 26.3.2016 as well as entire criminal proceedings of case no. 3517 of 2016, State Vs. Bhagwan Singh and another, arising out of N.C.R. No. 225 of 2015, under Sections 323, 504, 506 I.P.C., P.S. Sahawar, District Kasganj, pending in the Court of A.C.J.M., Kasganj.
The facts relevant for disposal of this application are that on 13.11.2015, the opposite party no. 2 lodged a report against the applicants, which was registered as N.C.R. No. 225 of 2015, under Sections 323, 504, 506 I.P.C., P.S. Sahawar, District Kasganj. After investigation, the I.O. submitted charge sheet against the applicants under Sections 323, 504, 506 I.P.C and the A.C.J.M., Kasganj, took cognizance on the said charge sheet.
The aforesaid order of taking cognizance has been challenged by the applicants before this Court in the present application under Section 482 Cr.P.C. on the ground that all the offences being non-cognizable and bailable, the case was to be dealt with in accordance with the provisions of section 2(d) of Cr.P.C., which provides that a report made by the police officer in a case which discloses, after investigation, the commission of a 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. Learned counsel has contended that in view of the above, the charge-sheet submitted by the police in the present case under Sections 323, 504, 506 I.P.C. should not have been treated as a State case and the same ought to have been treated as a complaint and no cognizance could be taken on the police report as there was no sanction for the investigation as is required under section 155(2) of Cr.P.C.
Learned AGA has opposed the application placing reliance on the Full Bench judgment of this court rendered in the case of Mata Sewak Upadhyaya Vs. State of U.P. and others, reported in 1995 AWC 2031 wherein the validity of notification making section 506 I.P.C as a cognizable offence, was upheld.
Considered the submissions of the parties.
The offence under section 506 I.P.C. was made cognizable and non-bailable vide U.P. Government Notification No. 777/VIII-94(2)-87 dated July 31, 1989.
Section 10 of Criminal Law Amendment Act, 1932, gives power to the State Government to declare certain offences cognizable and non-cognizabe by issuing notification in the official Gazette. The legality and validity of this notification came up for consideration before the Full Bench of this Court in the case of Mata Sewak Upadhyay and another versus State of U.P. and others (supra) wherein the Full Bench of this Court held the aforesaid notification as valid. but later on in the case of Virendra Singh and others Vs. State of U.P. and others, 2002(45) ACC 609 a Division Bench of this court declared the above notification to be illegal and making the offence under section 506 I.P.C. cognizable and non-bailable.
The above matter again came for consideration of this Court, in the case of Parveen Kumar and others Vs. State of U.P. and another, ADJ 2011 (5) 418, wherein it was observed that since the Full Bench decision of this Court in Mata Sevak Upadhyaya and another Vs. State of U.P. and others (supra) has not been over-ruled or set-aside by any larger Bench of this Court or by the Apex Court, so the decision of Division Bench in Virendra Singh Vs. State of U.P. and others (supra) case cannot be given effect to.
A perusal of judgment of Virendra Singh Vs. State of U.P. and others (supra) makes it clear that the Full Bench decision of this Court in the case of Mata Sevak Upadhyaya and another Vs. State of U.P. and others (supra) was not brought before the Division Bench and it was neither considered nor discussed nor distinguished by the Division Bench.
In view of the discussions made above, I am of the considered view that offence under Section 506 I.P.C. can not be treated as non-cognizable as per submissions made by the learned counsel for the applicant. Since the offence under Section 506 I.P.C. has been made, cognizable, non-bailable and non-compoundable vide above mentioned notification in the State of U.P., the provisions of Section 2 (d) of Cr.P.C. do not apply to the present case. In view of the above, the impugned order of cognizance passed by Judicial Magistrate is not liable to be quashed and the prayer for quashing the same is refused.
However, it is directed that if the applicants appear before the court below and apply for bail within 30 days from today, the court below shall make endeavour to decide their bail application keeping in view the observations made by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and affirmed by Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).
For the aforesaid period of 30 days no coercive action shall be taken against the applicants.
With the aforesaid observation this application is finally disposed of.
Order Date :- 4.10.2016
Pcl
