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2023 DIGILAW 132 (ALL)

Narendra Kumar v. State of U. P.

2023-01-13

UMESH CHANDRA SHARMA

body2023
JUDGMENT : UMESH CHANDRA SHARMA, J. 1. Learned counsel for the applicants is permitted to correct the prayer clause during the course of the day. 2. Heard learned counsel for the applicants, learned AGA for the State and perused the record. 3. It is evident from the charge sheet (annexure-2) that after investigation in Case Crime No. 541 of 2019, under Sections 147, 323, 506 IPC, Police Station Ghatampur, District Kanpur Dehat, the investigating officer submitted a charge sheet only under Sections 323 and 506 IPC but while taking cognizance on 08.02.2021 the Magistrate has taken cognizance under Section 147 IPC also without any basis. The Magistrate is duty bound to apply judicial mind at the time of taking cognizance but in the impugned order no reason has been assigned by the Magistrate that on which basis he has taken cognizance under Section 147 IPC also. The Magistrate has not applied his mind at the time of taking cognizance. 4. It was very much clear that the charge sheet had been submitted only against three persons, therefore, the Magistrate could only add Section 34 IPC but there was no occasion to add Section 147 IPC as Section 147 IPC applies only if the offence has been committed by any member of unlawful assembly. If there was any unlawful assembly and in furtherance to achieve the object of such unlawful assembly any offence was committed only then cognizance can be taken under Section 147 IPC. Section 147 IPC prescribes punishment for rioting. 5. In this case the investigating officer had not found that the accused person had committed riot to achieve the object of any unlawful assembly. Therefore, the order regarding taking cognizance under Section 147 IPC is incorrect and against the law and the fact of the case. 6. Under Section 482 Cr.P.C. this Court has inherent power to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any court or otherwise to secure the ends of justice. 7. Learned counsel for the applicant also contends that when no charge sheet was submitted under Section 147 IPC and the case remains only under Section 323 and 506 IPC this case would come under the parameters of explanation of Section 2(d) Cr.P.C. After amendment dated 21.07.1989 the offence under Section 506 IPC is cognizable and non-bailable. 8. 7. Learned counsel for the applicant also contends that when no charge sheet was submitted under Section 147 IPC and the case remains only under Section 323 and 506 IPC this case would come under the parameters of explanation of Section 2(d) Cr.P.C. After amendment dated 21.07.1989 the offence under Section 506 IPC is cognizable and non-bailable. 8. There are two parts of Section 506 IPC. If the Magistrate finds that the case relates to Part-I, the position would be different rather if he finds that the case relates to Part-II of Section 506 IPC. 9. Initially Section 506 IPC was non-cognizable and bailable but by UP Government Notification No. 777/VIII-9-4(2)-87 dated 31.07.1989, Section 506 IPC was made cognizable and non-bailable. 10. In Virendra Singh and Others vs. State of U.P. and Others, (2002) ILR 3 All. 653, the Division Bench of this Court held that Section 484 Cr.P.C. Act, 1973 repealed Section 10 of Criminal Law (Amendment) Act, 1932 (in short ‘the Act 1932’) which was providing power to the State Government to declare certain offences including Section 506 IPC to be cognizable and non-bailable. The Court held that Section 10 of the Act, 1932 does not give power to the State Government to amend by a notification any Part of the Cr.P.C. 1973. Since the Cr.P.C. of 1898 has been repealed by Section 484 Cr.P.C. of 1973, hence Section 10 of the Act, 1932 has become redundant and otiose and no notification can now be made under Section 10 of the Act, 1932. By the said amendment, Section 506 IPC was declared to be cognizable and non-bailable in exercise of power under Section 10 of the Act, 1932 by notification dated 31.07.1989. 11. Section 10 was providing that on issuance of notification, Cr.P.C. 1898 shall stand amended accordingly. Section 10 does not provide power to amend Cr.P.C. of 1973 and under the Cr.P.C. of 1973 Section 506 IPC is non-cognizable and bailable. Therefore, no notification can now be made under Section 10 of the Act, 1932. Cr.P.C. 1973, is a parliamentary enactment. 12. One Act can be amended by another Act or by Ordinance and not by simple notification. Central Act cannot be amended by UP Act unless assent of President is taken under Article 254(2) of the Constitution of India. Therefore, no notification can now be made under Section 10 of the Act, 1932. Cr.P.C. 1973, is a parliamentary enactment. 12. One Act can be amended by another Act or by Ordinance and not by simple notification. Central Act cannot be amended by UP Act unless assent of President is taken under Article 254(2) of the Constitution of India. The Court held that even in the aforesaid circumstances the notification of 1989 purporting to amend Central Act even with President's assent is illegal. Accordingly, the Division Bench declared the above notification of Uttar Pradesh to be illegal and made it clear that Section 506 IPC has to be treated as bailable and non-cognizable offence. 13. In the aforesaid circumstances it would be proper to quash the impugned order taking cognizance on 08.02.2021. 14. Accordingly, this application under Section 482 Cr.P.C. succeeds and is allowed. 15. The cognizance order dated 08.02.2021 passed in Criminal Case No. 344 of 2021 (State vs. Narendra Kumar and Others) by the Judicial Magistrate, Ghatampur, District Kanpur Dehat is hereby quashed. 16. The Judicial Magistrate, Ghatampur, Kanpur Dehat is directed to be cautious in future. He shall pass an appropriate order after taking into consideration all the material available on record without prejudice to the order of this Court.