Allahabad High Court
Vimal Kumar @ Vimal Kumar Pandey And 3 ... vs State Of U.P. And Another on 17 July, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:115830 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 23008 of 2025 Applicant :- Vimal Kumar @ Vimal Kumar Pandey And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sourabh,Vijay Raj Pal Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
2. This application under Section 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as BNSS) has been filed for quashing of entire proceedings, including charge sheet dated 23.01.2023 as well as cognizance order dated 25.04.2023, of Case No. 683 of 2023 (State Vs. Rajneesh and Others), arising out of Case Crime No. 0007 of 2023, under Sections - 323, 506 I.P.C.., Police Station - Kaundhiyara, District- Prayagraj, pending before the Court of Additional Chief Judicial Magistrate, Allahabad.
3. It is submitted by learned counsel for the applicants that first information report has been lodged by the opposite party no.2 against applicants making false and baseless allegations. There is no independent witness of the alleged incident. The injuries shown to the informant are simple in nature. It was submitted that there is property related dispute between the parties and first information report has been lodged due to that reason. Referring to facts of the matter, it was submitted that no prima facie case is made out against applicants. It is further submitted that both the offences are non-cognizable and no first information report can be registered under Sections - 323, 506 I.P.C.. In support of his contention, learned counsel for the applicants has placed reliance upon cases of Virendra Singh And Ors. Vs. State of U.P. and Ors.; 2002 CRILJ 4265 and Dinesh @ Ganeshi And 2 Others Vs. State of U.P. and Another; 2020:AHC:111493.
4. Learned A.G.A. has opposed the application and submitted that in view of allegations made in the first information report and material collected during investigation, a prima-facie case is made out against applicants.
5. I have considered the rival submissions and perused the record.
6. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgement reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases.
7. In the instant case the perusal of record shows that informant has alleged in the first information report that on 11.01.2023 at about 08:30 PM, applicants trespassed into his boundary wall and assaulted him with legs, fists and sticks and that he was also hit at his testicles. The version of information is supported by his medical examination report, wherein three injuries have been shown on the person of informant. Merely because there is no independent eye witness of alleged incident, impugned proceedings are not liable to quashed.
8. So far this contention is concerned that offence under Section - 506 I.P.C. is non cognizable, the first Schedule appended to the Criminal Procedure Code, 1973 mentions that the offence under Section 506 I.P.C. is a non-cognizable offence, however, the Uttar Pradesh Government has issued a Notification No. 777/VIII-9 4(2)-87, dated July 31, 1989, which was published in U.P. Gazette, Extra Part-4, Section (Kha), on 02.08.1989 and by this notification offence under Section - 506 I.P.C. in State of Uttar Pradesh was made a cognizable offence.
9. In Mata Sewak Upadhyayv.State of U.P., 1995 JIC 1168, the question of validity of the aforesaid notification was raised before a Full Bench of this Court and the validity said notification was upheld by the Full Bench of this Court.
10. The learned Counsel for the applicant has placed reliance upon a subsequent Division Bench judgment of this Court in the case of Virendra Singh (supra), wherein it was held that:-
"7. Section 10 of the Criminal Law Amendment Act, 1932 does not give power to the State Government to amend by a notification any part of the Criminal Procedure Code 1973. Since the Cr.P.C. of 1898 has been repealed by Section 484 of the Cr.P.C. Act, 1973 we are of the opinion that Section 10 of the Criminal Law Amendment Act, 1932 has become redundant and otiose. Hence in our opinion no notification can now be made under Section 10 of the Criminal Law Amendment Act, 1932. Any such notification is illegal for the reason given above. Hence we declare notification No. 777/VIII-9 4(2)-87, dated July 31, 1989, published in the U.P. Gazette, Extra Part 4, Section (kha), dated 2nd August, 1989 by which Section 506, I.P.C. was made cognizable and non bailable to be illegal. Section 506, I.P.C. has to be treated as bailable and non -cognizable offence.
8. There is another reason also why the aforesaid notification of 1989 is illegal. The Cr.P.C. of 1973 is a Parliamentary enactment. An act can only be amended by another Act or by an Ordinance, not by a simple notification. Moreover, a Central Act cannot be amended even by a U.P. Act unless the assent of the President is taken vide Article 254(2) of the Constitution. The notification of 1989 purports to amend a Central Act (the Cr.P.C. of 1973) even without the assent of the President."
11. The judgment in the case of Virendra Singh (Supra) was passed a Division Bench without taking into consideration the earlier Full Bench judgment in the case of Mata Sewak Upadhyay (supra), which was binding on the Division Bench. The decision of the Full Bench inMata Sewak Upadhyay(Supra) has been approved by the Hon'ble Supreme Court inAires Rodriguesv.Vishwajeet P. Rane,(2017) 11 SCC 62. Thus, the case of Virendra Singh (supra) would not help the applicants. Similarly, the case of Dinesh @ Ganeshi (supra) can also not be acted upon, as the judgment of Full Bench in case of Mata Sewak Upadhyay has not been taken into consideration in that case.
12. The validity of the aforesaid notification dated 31stJuly 1989 having been upheld by a Full Bench of this Court inMata Sewak Upadhyay(Supra) and the Full Bench decision having been approved by the Hon'ble Supreme Court in case of Aires Rodrigues(Supra), there is no doubt that an offence under Section 506 IPC, if committed in the State of U.P., is a cognizable offence.
13. In view of aforesaid, it is apparent that offence under Section - 506 I.P.C. is a cognizable offence in State of Uttar Pradesh and thus, the instant case under Section - 323, 506 I.P.C. has to be considered as cognizable offence. Thus, it cannot be said that learned Trial court has committed any error by taking cognizance of the case by impugned order as a State case.
14. In view of aforesaid, it is clear that this application under Section - 528 BNSS has no substance and thus, liable to be dismissed.
15. Accordingly, the application u/s 528 BNSS is dismissed.
Order Date :- 17.7.2025 S Rawat