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2016 DIGILAW 2765 (ALL)

RAJ KAPOOR @ LALLU v. STATE OF U. P.

2016-08-10

HARSH KUMAR

body2016
JUDGMENT : Hon'ble Harsh Kumar, J. Heard Sri V.S. Chaurasia, Advocate holding brief of Sri Panchu Ram Maurya, learned counsel for the applicants and learned A.G.A. for the State. The application under Section 482 Cr.P.C. has been moved for quashing the charge-sheet dated 1.7.2014 in pursuance of N.C.R. No.28 of 2014 dated 14.3.2014 (State Vs. Rajkapoor @ Lallu) in Criminal Case No.488 of 2015 (488/IX/2015) under Sections 323, 504, 506 I.P.C., P.S. Saidpur, District Ghazipur as well as cognizance order passed by Judicial Magistrate, Saidpur, dated 29.6.2015. Learned counsel for the applicant contends that the offences under Sections 323, 504, 506 I.P.C. are bailable and non-cognizable according to 1st Schedule of Cr.P.C. and according to the provisions of explanation to Section 2(d) of Cr.P.C., the charge-sheet filed before the Magistrate is to be treated as complaint and the order of Magistrate taking cognizance dated 29.6.2015 is liable to be quashed; that the offence under Section 506 I.P.C. was made cognizable vide Notification No.777 dated 31.7.1989 but later on in the case of Virendra Singh Vs. State of U.P. and others, 2002 (45) ACC 609, a Division Bench of this Court declared above notification, making the offence cognizable and non-bailable, to be illegal and so the offence under Section 506 I.P.C. has to be treated bailable and non-cognizable; that since the Division Bench of this Court has declared the above Notification No.777 dated 31.7.1989 to be illegal, apart from offences under Section 323 & 504 I.P.C., the offence under Section 506 I.P.C. is also non-cognizable and so the provisions of Section 2(d) of Cr.P.C. are attracted. Per contra, learned A.G.A. submitted that the judgment of the Division Bench has no binding effect in view of the pronouncement of Full Bench made by this Court in the case of Mata Sewak Upadhyay and another Vs. State of U.P. and others, 1995 JIC 1168 (Alld.), wherein the validity of above provisions/notification was upheld; that the above notification still holds good and has not been deleted or withdrawn in pursuance of the above Division Bench judgment in the Virendra Singh Vs. State of U.P. and others (supra)'s case; that in any case by repeal of old Code of 1898, the provisions brought through Notification No.777 (supra) do not become redundant. State of U.P. and others (supra)'s case; that in any case by repeal of old Code of 1898, the provisions brought through Notification No.777 (supra) do not become redundant. Upon hearing learned counsel for the parties and perusal of record and before proceeding further, the relevant provisions of Section 10 of Criminal Law Amendment Act, 1932, Section 506 I.P.C., relevant part of 1st Schedule of Cr.P.C. relating to offence under Section 506 I.P.C. with State Amendment, as well as the provisions of Section 2(d) of Cr.P.C. are being reproduced for ready reference as under:- "Section 10 of Criminal Law Amendment Act, 1932:- Section 10 Power of State Government to make certain offences, cognizable and non-cognizable. (1) The State Government may, by notification in the official Gazette, declare that any offence punishable under Sections 186, 188, 189, 190, 228, 295A, 298, 505, 506 or 507 of the Indian Penal Code, 1860, when committed in any area specified in the Notification shall notwithstanding anything contained in the Code of Criminal Procedure, 1898, be cognizable and thereupon the Code of Criminal Procedure, 1898, shall while such notification remains in force, be deemed to be amended accordingly. (2) The State Government may, in like manner and subject to the like conditions, and with the like effect, declare that an offence punishable under Section 188 or Section 506 of the Indian Penal Code, 1860, shall be non-bailable. Section 506 of Indian Penal Code:- "506. Punishment for criminal intimidation.-Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.-And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life] or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. CLASSIFICATION OF OFFENCE Para I: Punishment-Imprisonment for 2 years, or fine, or both-Non-cognizable -Bailable-Triable by any Magistrate-Compoundable by the person intimidated. Para II: Punishable-Imprisonment for 7 years, or fine, or both-Non-cognizable-Bailable-Triable by Magistrate of the first class-Non-compoundable. CLASSIFICATION OF OFFENCE Para I: Punishment-Imprisonment for 2 years, or fine, or both-Non-cognizable -Bailable-Triable by any Magistrate-Compoundable by the person intimidated. Para II: Punishable-Imprisonment for 7 years, or fine, or both-Non-cognizable-Bailable-Triable by Magistrate of the first class-Non-compoundable. STATE AMENDMENT Uttar Pradesh.- Imprisonment of 7 years, or fine or both-Cognizable-Non-bailable-Triable by Magistrate of the first class-Non-compoundable. Vide Notification No.777/VIII 9-4(2)-87, dated 31st July, 1989 published in U.P. Gazette, Extra., Pt. A, Sec. (kha), dated 2nd August, 1989. Ist Schedule of Code of Criminal Procedure, 1973 506 Criminal Intimidation Imprisonment for 2 years or Non-cognizable Bailable Any Magistrate. Fine, or both. If threat be to cause Imprisonment for 7 years or Non-cognizable Bailable Magistrate of death or grievous hurt, fine, or both. first class etc. STATE AMENDMENT Andhra Pradesh: Offences under section 506 are cognizable and non-bailable. [Vide A.P.G.O. Ms. No.732, dated 5th December, 1991.] Uttar Pradesh: The offence under section 506 are cognizable and non-bailable. [Vide Notification No.777/VIII 9-4(2)-87, dated 31st July, 1989, published in U.P. Gazette, Extra., Part A, Section (Kha), dated 2nd August, 1989.] Section 2(d) of Code of Criminal Procedure, 1973 2. Definitions.- In this Code, unless the context otherwise requires,- (d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a 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." It is pertinent to mention that though in the 1st Schedule of Cr.P.C., the offence under Section 506 I.P.C. is described as non-cognizable and bailable but by virtue of Section 10 of Criminal Law Amendment Act, 1932 the same was made cognizable and non-bailable in U.P. by the U.P. Government Notification no.777/VIII-9-4(2)87 dated 31.07.1989. Section 10 of the Criminal Law Amendment Act, 1932 gives power to the State Government to declare certain offences including offences under Section 506 IPC to be cognizable and non-bailable and it provided that on issuance of such notification the Code of Criminal Procedure, 1898 shall stand amended accordingly. Section 10 of the Criminal Law Amendment Act, 1932 gives power to the State Government to declare certain offences including offences under Section 506 IPC to be cognizable and non-bailable and it provided that on issuance of such 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 of this Court in the case of Mata Sewak Upadhyay and another versus State of U.P. and others (supra). 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 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 by the Full Bench 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 and that the law has to be construed in such a fashion as to make it workable and enforceable, than to make it redundant. It was held by the Full Bench of this Court that Section 10 of the Criminal Law Amendment Act, 1932 and Government Notification no.777/VIII-94 (2)-87 dated 2.8.1998 making Section 506 I.P.C. cognizable and non-bailable offence are valid. The above matter was 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 the learned counsel for the applicant has not stated that above decision has been set-aside by the Apex Court, so the decision of Division Bench in Virendra Singh Vs. State of U.P. and others (supra) case cannot given effect. The perusal of judgment of Virendra Singh Vs. State of U.P. and others (supra) case, copy of which has been filed at page 37 as Annexure-4 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) case cannot given effect. The perusal of judgment of Virendra Singh Vs. State of U.P. and others (supra) case, copy of which has been filed at page 37 as Annexure-4 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. may 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. do not apply to the present case and so the impugned order dated 29.6.2015 of cognizance passed by Judicial Magistrate may not be considered to be wrong and illegal and is not liable to be quashed. In view of the discussions made above, I find that the applicant has failed to show that in view of decision in Virendra Singh case (supra) or provisions of Section 2(d) of Cr.P.C., the impugned order of cognizance dated 29.6.2015 passed upon submission of charge-sheet as well as further proceedings in furtherance thereof, in Criminal Case No.488 of 2015 (488/IX/2015) (State Vs. Rajkapoor @ Lallu) under Sections 323, 504, 506 I.P.C., P.S. Saidpur, District Ghazipur are liable to be quashed. The learned counsel for applicant has also failed to show that there is any likelihood of causing of any abuse of process of any court and that there is any sufficient ground requiring exercise of inherent powers by this Court for securing the ends of justice. The application is devoid of merits and is liable to be dismissed. The application under Section 482 Cr.P.C. is dismissed accordingly. However, if the applicant appears before the court below and moves application for bail, the same shall be disposed of expeditiously, in accordance with law.