Allahabad High Court
Rajiv Kaushik vs State Of U.P. And Another on 7 February, 2020
Author: Ajit Singh
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 84 Case :- APPLICATION U/S 482 No. - 5642 of 2020 Applicant :- Rajiv Kaushik Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhishek Counsel for Opposite Party :- G.A. Hon'ble Ajit Singh,J.
1. Heard learned counsel for the applicant and learned A.G.A.
2. The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 21.10.2019 passed by the learned Addl. Chief Judicial Magistrate, Court No. 5, Meerut in Case No. 25579 of 2018 (State Vs. Rajiv Kaushik), arising out of Case Crime No. 0249 of 2018, under Sections 323, 506 of IPC, PS Civil Lines, District Meerut along with entire proceedings.
3. By the impugned order dated 21.10.2019 the application moved by the accused applicant in relation to Section 2 (d) has been rejected by the learned Trial Court.
4. The learned counsel for accused applicant submits that the offences as alleged are non conginzable and therefore neither the charge sheet could have been submitted by the Investigating Officer nor the learned Magistrate could have taken cognizance in view of Section 2(d) of Cr.P.c. and it was further submitted that only course open to the learned Magistrate was to have treated it as a complaint case and, accordingly, ought to have proceeded with in accordance with law.
5. On the other hand, the learned AGA appearing for the State submits that the impugned order passed by the learned Magistrate is perfectly valid and correct as it was passed in consonance with the ratio of the judgments passed by this Court in Raj Kapoor @ Lallu Vs. State of U.P. and another, 2017 (1) JIC 322, Allahabad and others and has further contended that the relief sought by means of this application under Section 482 Cr.P.C. for quashing of the impugned order is malafide, misconceived and the application is liable to be dismissed.
6. In this matter it is necessary to have a glance on Section 2 (d) of Cr.P.C., therefore, the relevant provisions of the same are being reproduced below:-
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-cognisable 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."
7. It is settled position of law that the offences under Sections 323 and 504 of IPC are bailable and non-cognizable. Therefore, the Explanation to Section 2 (d) is applicable. The offence under Section 323 of IPC is bailable and non cognizable and Section 506 is cognizable and non bailable and not compoundable. So the provisions of Explanation to Section 2 (d) are not applicable to the present case. Offence under Section 506 IPC has been made non bailable and congnizable vide Notification 777/VIII 9-4 (2)87 dated 31.07.1989 published in Gazette, Extra, Pt-A Section (Kha) dated 2nd August, 1989 and the provisions of Section 2 (d) of Cr.P.C. do not apply to the present case.
8. In the case of Mata Sevak Upadhyaya and another Vs. State of U.P. and others, 1995 JIC 1168 (Alld.) wherein the validity of the above provisions was upheld observing that the above notification still holds good and has not been deleted or withdrawn in pursuance of the Division Bench judgment in the case of Virendra Singh Vs. State of U.P. and others, 2002 (45) ACC 609.
9. Having heard the arguments advanced by learned counsel for the parties and also having gone through the record of the case, the controversy involved in this case has to be decided taking into consideration the relevant statutory provisions of Section 10 of Criminal Law Amendment Act, 1932, Section 506 of I.P.C., as also relevant part of Ist Schedule of Cr.P.C. relating to the offence under Section 506 IPC 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.
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 Fine, or both.
Non-cognizable Bailable Any Magistrate If threat be to cause death or grievous hurt etc. Imprisonment for 7 years or Fine, or both.
Non-cognizable Bailable Magistrate of first class 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."
10. Regard being had to the aforesaid statutory provisions, this Court finds that though in the Ist 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.
11. The Full Bench of this Court has considered the legality and validity of this notification in the case of Mata Sewak Upadhyay and another versus State of U.P. and others (supra) and it has been laid down by the Full Bench 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 also 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.
12. Again an occasion arose for consideration of the above matter before this Court and 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 overruled 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.
13. From a perusal of judgment of Virendra Singh Vs. State of U.P. and others (supra) case, it is 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.
14. In the result, 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.
15. In view of the discussions made above, I find that the applicant has failed to show that in view of decision in Virendra Singh' s case (supra) or provisions of Section 2 (d) of Cr.P.C., the impugned order of cognizance dated 21.10.2019 passed upon submission of charge-sheet under Sections 323 and 506 of IPC is perfectly valid and no abuse of process of law is evident or apparent from the impugned order. It does not require the exercise of inherent power by this Court for securing the ends of justice. The application is devoid of merits and is liable to be dismissed.
16. The application under Section 482 Cr.P.C. is dismissed accordingly.
17. 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.
Order Date:-07.02.2020 LBY