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2020 DIGILAW 273 (ALL)

Charan Singh v. State of U. P.

2020-01-23

SURESH KUMAR GUPTA

body2020
JUDGMENT : SURESH KUMAR GUPTA, J. 1. Heard learned counsel for the appellant and learned A.G.A. 2. The present 482 Cr.P.C. application has been filed to quash the entire proceedings of Case No. 771/IX of 2015, State vs. Charan Singh and Others, arising out of case crime No. 393 of 2014, under sections 504, 506 IPC, Police Station Raya, District Mathura, pending in the court of Additional Chief Judicial Magistrate, Court No. 1, Mathura. 3. Brief facts of this case are as follows:- On 17.09.2014 a First Information Report was lodged by opposite party no. 2 against the applicants and 15 other persons, under sections 147, 148, 149, 307, 504, 506, 452, 354, 431, 352, 434 IPC, alleging therein that on 10.07.2014 the applicants along with other co-accused persons entered into his house and accused persons also carrying country made pistol, rifle and other dangerous weapons in their hands and not only abused his family members but also brutally beaten them and also tried to kill them by opening fire from the weapons carrying in their hands. The FIR was lodged on 17.09.2014 at 15.30 hours. During investigation the statement of first informant and witnesses were recorded by investigating officer. During investigation about 50 villagers gave their affidavits to the S.S.P. Mathura and also the investigating officer in the present case, stating therein that just to achieve his ulterior motive the opposite party no. 2 lodged the present FIR while no such incident was taken place in the village. After conclusion of the investigation, investigating officer submitted charge sheet dated 31.12.2014, under sections 504, 506 IPC, against present applicants and exonerated the rest other named accused persons. It is also submitted that on 19.06.2015, cognizance was taken by learned court below and summons were issued against the applicants and thereafter applicants were surrendered before the court below and got themselves bailed out on 06.09.2016. Thereafter on 18.01.2018 the charges were framed against the applicants in an arbitrary and mechanical manner and thereafter on 27.06.2019 statement of PW-1 was recorded. It is further submitted that the applicants have been falsely implicated in the present case and he also submitted that the alleged incident had taken place on 10.07.2014 and its FIR was lodged on 17.09.2014 by the opposite party no. 2 after delay of more than two months without explaining any reason of delay. 4. It is further submitted that the applicants have been falsely implicated in the present case and he also submitted that the alleged incident had taken place on 10.07.2014 and its FIR was lodged on 17.09.2014 by the opposite party no. 2 after delay of more than two months without explaining any reason of delay. 4. Mere contention of learned counsel for the applicants is that the charge-sheet under sections 504, 506 IPC was submitted by investigating officer and no offence under section 506 (Part-2) is made out against the applicants and the essential ingredients was also missing in the FIR and in the statements recorded under section 161 Cr.P.C. as such the proceedings of present case is barred by Section 2 (d) of Cr.P.C. Section 2 (d) Cr.P.C. provided that a report made by police officer in a case, which discloses after investigation, the commission of a non-cognizable offence, so the proceedings of present case only be proceeded only by making the complaint and procedure of the complaint case should be adopted by the court below. 5. Learned AGA has vehemently opposed the application by contending that the case relied upon the applicants is not applicable to the present case by means of 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 offence, whereas in the present case under section 506 I.P.C. is also involved, which according to U.P. Amendment is cognizable and non-bailable. 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, 1995 AWC 2031 wherein validity of notification making section 506 IPC as a cognizable offence has been upheld. 6. 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. 7. Section 10 of Criminal Law Amendment Act, 1932, gives power to the State Government to declare certain offences cognizable and non-cognizable by issuing notification in the official Gazette. 7. Section 10 of Criminal Law Amendment Act, 1932, gives power to the State Government to declare certain offences cognizable and non-cognizable 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. 8. 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. 9. 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. 10. 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 applicants 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. 11. 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. 11. Learned counsel for the applicants relied upon the judgment of this Court passed in Application U/s 482 No. 1212 of 2020, Charan Singh and Others vs. State of U.P. and Others, in which initially the NCR No. 104 of 2013, under sections 427, 504, 506 IPC was lodged at P.S. Raya, District Mathura. After investigation, the police has submitted charge sheet against the applicants under sections 427, 504, 506 IPC before the concerned court below and this Court has held that since the report of the police officer after investigation, disclosing commission of no-cognizable offence is to be deemed to be a complaint and the police officer, who submitted the report has been deemed to be a complaint. In other words, the charge-sheet submitted by the police in a non-cognizable offence shall be treated to be a complaint and the procedure prescribed for hearing of the complaint case shall be applicable to that case. Since, in this case charge-sheet submitted under sections 504, 506 IPC. The judgment of this Court in Charan Singh and 3 others (supra) relied by the learned counsel for the applicants is not applicable to the present case in that judgment neither the U.P. Notification No. Notification No. 777/VIII-94(2)-87 dated July 31, 1989 nor the Full Bench judgment of this Court in Mata Sevak Upadhyaya and another Vs. State of U.P. and others (supra) was discussed in which the validity of above Notification held valid and affirm that the offence under section 506 IPC is a cognizable and non-bailable. 12. With the above observations, the application under Section 482 Cr.P.C. is devoid of merit and is liable to be dismissed. 13. Accordingly, the application is dismissed.