Allahabad High Court
Ram Nath And Another vs State Of U.P. And Another on 21 October, 2016
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved
Court No. - 53
Case :- APPLICATION U/S 482 No. - 22428 of 2016
Applicant :- Ram Nath And Another
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Suresh Pratap 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.
By means of the instant application under Section 482 Cr.P.C. the applicants have prayed for quashing the charge sheet dated 22.12.2015 submitted in Case Crime No. 633 of 2015, u/s 323, 506, 427 I.P.C., P.S. Gaur, District Basti, giving rise to Criminal Case No. 743 of 2016, State Vs. Ram Nath and others, pending in the Court of A.C.J.M. 1st, Basti, as well as entire proceedings of the criminal case arising out of the aforesaid case crime.
Learned counsel for the applicants has challenged the legality of the criminal proceedings mainly on the ground that the charge sheet in this case has been filed under sections 323, 506, 427 I.P.C., all the aforesaid 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 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 have been taken on the police report/ charge sheet.
It is further submitted that in view of the fact that all the offences were bailable and non-cognizable, only non-cognizable report (NCR) could have been registered and after permission of the Magistrate u/s 155 Cr.P.C., investigation could have been done. Since there was no sanction for the investigation as is required under section 155(2) of Cr.P.C. the charge sheet is illegal.
In this regard,Learned counsel for the applicants has placed reliance on the law laid down in the judgment passed by this court in the case of Shriya Shukla Vs. State of U.P., Application u/s 482 Cr.P.C. No. 36795 of 2015, decided on 22.12.2015, copy whereof has been filed as Annexure no. 4 to the affidavit, in which this court has held that in view of explanation appended to section 2(d) Cr.P.C. the police report in respect of non-cognizable offence is nothing except a complaint and therefore, the trial has to proceed as a complaint case and not as a case instituted on police report.
Learned AGA has vehemently opposed the application by contending that Shriya Shukla's case (supra) relied on by the learned counsel for the applicants is not applicable to the present case because in the Shriya Shukla's case, the offences involved were only u/s 323 and 504 I.P.C. whereas in the present case section 506 I.P.C. is also involved, which according to U.P. Amendment is cognizable and non'bailable. The learned AGA has placed 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, has been upheld.
Per contra, learned counsel for the applicants, with regard to the U.P. Amendment in Section 506 I.P.C., has placed reliance on the judgment rendered by this court in Virendra Singh and others Vs. State of U.P. and others, 2002(45) ACC 609, copy whereof has been annexed as Annexure no. 3 to the affidavit, whereby a Division Bench of this court declared the U.P. Amendment to be illegal and ordered that section 506 I.P.C. shall be treated as non-cognizable and bailable.
Considered the rival 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 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 making the offence under section 506 I.P.C. cognizable and non-bailable as illegal.
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 U.P. Government vide Notification No. 777/VIII-94(2)-87 dated July 31, 1989 has made the offence under section 506 I.P.C. as cognizable and non-bailable. 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.
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 rendered 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 and 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. will not be applicable to the present case.
Accordingly, the impugned charge sheet and the impugned order of cognizance passed by Judicial Magistrate are 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 :- 21.10.2016
Pcl
