Allahabad High Court
Lalmani & Another vs State Of U.P. & Another on 24 September, 2021
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 28 AFR Case :- U/S 482/378/407 No. - 3372 of 2021 Applicant :- Lalmani & Another Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Mohd. Raziullah,Gayasuddin Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Farhan Alam Osmany holding brief for Mohd. Raziullah, learned counsel for the applicants as well as Shri Rajesh Kumar, learned AGA for the State.
The instant application has been filed by the applicants- Lalmani and Jitendra with the prayer to quash the summoning order dated 3.8.2021 passed in Criminal Case No. 7349 of 202, arisen out of Case Crime No. 23/2021 under Sections 323, 504, 506 IPC, Police Station Sammanpur, District Ambedkar Nagar, pending in the court of Additional Chief Judicial Magistrate, Ambedkar Nagar and also to quash the charge sheet and entire proceedings of the above mentioned case.
Learned counsel for the applicants submits that a non-cognizable report was lodged by the opposite party no.2 in the instant case under Sections 323, 504 IPC. However under the orders of the Magistrate the said non-cognizable report was directed to be investigated and after the investigation charge sheet under Sections 323, 504, 506 IPC has been filed.
While referring to Section 2(d) of Cr.P.C. and also drawing the attention of this Court on an order passed by a Coordinate Bench of this Court dated 10.2.2020 in Application under Section 482 Cr.P.C. No. 5575 of 2020, it is vehemently submitted that it was the duty of the trial court to have adopted the procedure as prescribed for trial of the complaint cases and the Magistrate has taken the cognizance under Section 190(1) (b) of the Cr.P.C. and the proceedings of the case is going like a case instituted on a police report and material illegality has been committed by the trial court, requires intervention by this Court and thus all the proceedings pending before the trial court are nothing but the abuse of the process of law and be quashed.
Learned AGA on the other hand submits that vide U.P. Govt. 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 the offence of Section 506 IPC in the territory of Uttar Pradesh has been declared as cognizable and non-bailable and when the charge sheet has been filed under Section323,504,506 IPC and and the cognizance has been taken by the Magistrate treating Section 506 IPC as cognizable,under section 190(1)(b) of Crpc no illegality appears to have been committed by the trial court.
Having heard learned counsel for the parties and having perused the record issuance of notice to opposite party no.2 is hereby dispensed with as the instant case is being disposed of purely on the question of law settled by a Full Bench of this Court as well as on the basis of decision of the Hon'ble Supreme Court and the order intended to be passed will not affect the rights of opposite No. 2 in any way.
In nutshell the issue before this Court is that as to whether Section 506 IPC is either cognizable or is non-cognizable offence so as to adjudicate whether the trial Court should have adopted the procedure of complaint case or that of the case instituted on police report. Ld. Counsel for the applicants has cited Virendra Singh and others Vs. State of U.P. and others, 2002 (45) ACC 609, MANU/ UP/ 0455/ 2000, in support of his contentions whereby the notification dated 31.7.1989 declaring Section 506 IPC as cognizable and non-bailable, was held to be illegal.
Having given my considered thought to the dispute under consideration it is evident that the issue whether Section 506 IPC, in pursuance of the notification dated 31.07.1989 mentioned herein above issued by the State Government published in U.P.Gazette dated 02.08.1989, is either cognizable or is non-cognizable is now no more 'res integra'. A Full Bench of this Court in Mata Sewak Upadhyay and Anr. v. State of U.P. and Ors.. 1995 JIC 1168 (All) (FB), after considering the notification issued by the State Government referred to herein above has held the notification issued by the state Government as valid in following words;-
"91. There are two notifications of December 29, 1932 and August 2, 1989 which came to be issued in exercise of the powers conferred by Section 10 of the Act of 1932. Whereas, the first notification was made applicable only to a few districts, mentioned therein, the second notification of August 2, 1989 which was issued in super session of the notifications earlier issued in this behalf, states that the Governor is pleased to declare that any offence punishable under Section 506 of the Indian Penal Code (IPC) when committed in any district of Uttar Pradesh, shall notwithstanding anything contained in the Criminal Procedure Code, 1973, be cognizable and non-bailable. From the second notification it is, therefore, clear that that was issued in super session of the notification of December 29, 1932 and the effect of this notification is that the offence punishable under Section 506, IPC when committed at any place through, out the Uttar Pradesh, shall notwithstanding anything contained in the Criminal Procedure Code, be cognizable and non-bailable. In the first Schedule to the Criminal Procedure Code, 1973, the offence under Section 506 IPC is described as non-cognizable and bailable, but by virtue of Sec. 10 of the Act of 1932, the same has been declared for the entire Uttar Pradesh as cognizable and non-bailable by the notification of August 2, 1989. Sec. 10 of the Act of 1932 confers powers of the State Government to declare by notification in the official Gazette that an offence punishable under Section 506 IPC inter alia when committed in any area specified in the notification, shall notwithstanding anything contained in the Code of Criminal Procedure, 1898, be cognizable and non-bailable and thereupon the Code of Criminal Procedure, 1898 shall while such notification remain in force, be deemed to be amended accordingly. The submission is that by the Act of 1932, an amendment was made in the Code of Criminal Procedure, 1898, which stood repealed by virtue of Section 484 of Code of Criminal Procedure, 1973, which was assented by the President of April 1, 1974. The Act of 1932 having been passed simply to amend the Cr. P.C. of 1889, the argument of Sri Misra is that the former could not survive beyond the life of the Cr. P.C. of 1898, which came to an end after being repealed in April, 1974. In short, he submits that the life of the Amending Act cannot be more that the principal act and that the amending act is co-extensive and co-terminus with the Principal Act and that Cr. P.C. of 1898 which was amended by the Act of 1932, having been repealed in April, 1974, the Act of 1932 could not have survived thereafter. Sri Tulsi argues that it is a misnomer to say that the Act of 1932 is simply an Amending Act. He submits that the Act of 1932 is named as "The Criminal Law Amendment Act, 1932'', because that has made some amendment in the general body of criminal law and, in fact, the Act of 1932 is not only an Amending Act but a unique blend of substantive law as well as of the provisions making an amendment in the Cr. P.C., 1898 and that it having contained substantive provisions as well, cannot be said to be co-terminus with the Cr. P.C. of 1898 in which certain amendments were made, says Sri Tulsi. From perusal of the Act of 1932, the submission of Sri Tulsi appears to be correct that the said enactment 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.
92. Therefore, the contention of Sri Misra that impugned notification of August 2, 1989, having been issued under a dead enactment is invalid, has to be rejected.
94 At the very outset, it is pointed out that the Division Bench while making reference, did not refer any question relating to the validity of Section 10 of the Act of 1932, but it has been argued before us in connection with the validity of the notification of August 2, l989. Sri tulsi candidly of Section 10 being decidcd by the Full Bench, inasmuch as the respondents are duly out to notice. It is also made clear that while making reference, the Division Bench was not aware of Section 10 notification of August 2, 1989, which refers to the entire Uttar Pradesh and at that stage, the Division Bench simply referred to the earlier notification of December 29, 1932 notifying only a few districts. By notification of December 29, 1932, Section 506, IPC was made cognizable and non-bailable only for a few districts but by subsequent notification of August 2, 1989, Section 506, IPC has been declared cognizable and non-bailable for all district of Uttar Pradesh, i.e.,for the entire Uttar Pradesh.
95 In these circumstances, the Full Bench proceeds to decide the validity of Section 10 and that of the notification of August 2, 1989.
110. In the premises, Sections 3,4,7,8 and 14 of the Act of 1989 and Section Kha 10 of the Act of 1932 and notification No. 777/VIII-9-4 (2) (87), dated July 31 1989 published in the U. P. Gazette (Extraordinary) Part IV, Section 2nd August, 1989, are held valid.
195. In view of the above discussion, in my opinion, the answers to the questions referred to the Full Bench or permitted to be raised before it, are as follows :-
(6) Section 10 of the Criminal Laws Amendment Act, 1932 is valid.
(7) U, P. Government Notification dated 31-7-1989, making- offence under Section 506, IPC cognizance and non-bailable is valid."
Hon'ble Supreme Court has also had an opportunity to consider the similar notification issued by the State of Maharashtra, wherein similar amendments were made in Aires Rodrigues Vs. Vishwajeet P. Rane and Ors., MANU/SC/0078/2017 and after considering the above mentioned Full Bench decision of this Court in Mata Sewak Upadhyay (supra) has upheld the Notification issued by the Maharashtra Government in the light of ratio laid down in Mata Sewak Upadhyay (supra) in following words:-
"10. It is pointed out by learned Counsel for the Appellant that a contra view has been taken by the High Courts of Gujarat, Delhi, Allahabad and Madras in Vinod Rao v. The State of Gujarat and Anr. MANU/GJ/0160/1980 : (1980) 2 GLR 926, Sant Ram v. Delhi State and Anr. MANU/DE/0250/1980 : 17 (1980) Delhi Law Times 490, Mata Sewak Upadhyay and Anr. v. State of U.P. and Ors. 1995 JIC 1168 (All) (FB), P. Ramakrishnan v. State rep. by the Inspector of Police MANU/TN/3760/2010 : 2010-1- LW (Crl.) 848 respectively. He also pointed out that a different view has been taken by the High Court of Allahabad in Pankaj Shukla v. Anirudh Singh MANU/UP/1084/2011 : 2011 (2) ADJ 472 without noticing the Full-Bench decision of the High Court of Allahabad in Mata Sewak Upadhyay (supra).
11. It is not necessary to refer to all the above judgments. View taken in support of the notification remaining valid and operative in Vinod Rao (supra) is, inter alia, as follows:
Therefore, applying the rule of construction laid down in Section 8 of the General Clauses Act, we must read in Section 10 of the Criminal Law Amendment Act, 1932. Code of Criminal Procedure, 1973 in place of the expression of "Code of Criminal Procedure, 1898". When we so read it, it becomes clear that the notification issued Under Section 10 with reference to Code of Criminal Procedure, 1898 should be read as having been issued with reference to the Code of Criminal Procedure, 1973. So far as the impugned notification is concerned, it also refers to the Code of Criminal Procedure, 1898. The Rule of construction laid down in Section 8 of the General Clauses Act, 1897 also requires us to construe reference to the repealed enactment made in any "instrument" as reference to the repealing enactment or the new enactment which has been brought into force. The expression 'instrument' used in Section 8 of the General Clause Act, 1897, in our opinion, necessarily includes a notification such as the impugned notification. Therefore, applying the rule of construction laid down in Section 8 of the General Clauses Act, 1897, we read both in Section 10 of the Criminal Law Amendment Act, 1932 and in the impugned notification reference to Code of Criminal Procedure, 1898, as a reference to Code of Criminal Procedure, 1973. Therefore, the effect of the notification issued Under Section 10 in 1937 is to modify the relevant provisions in the Code of Criminal Procedure, 1973. Therefore, the notification of 1937 as well as the subsequent notification issued in 1970 are relevant to the instant case.
12. Contra view is on lines of the impugned order relevant part of which has been reproduced above.
13. We approve the view taken by the High Courts of Gujarat, Delhi, Allahabad and Madras in Vinod Rao, Sant Ram, Mata Sewak Upadhyay & Anr., and P. Ramakrishnan (supra) and disapprove the view taken by High Court of Allahabad in Pankaj Shukla (Supra). "
Thus there is no confusion with regard to the validity of the above notification dated 31.07.1989, published in Gazette of date 02.08.1989 issued by the State Government and the same has been up held by the Full Bench of this Court in Mata Sewak Upadhayay (Supra), ratio of which has also been upheld by Hon'ble Supreme Court in Aires Rodrigues (Supra).
The confusion, with regard to the above notification appears to have surfaced due to the decision of a Division Bench of this Court passed inVirendra Singh v. State of U.P. and others, MANU/UP/0455/2000.
A coordinate Bench of this Court in Taiyab Khan and Ors. Vs. State of U.P. and Ors. MANU/UP/5347/2018 while considering the view of Division Bench in Virendra (supra) has opined as under;-
"8. In Virendra Singh (supra) the court was not called upon to adjudicate upon the validity of the notification dated July 31, 1989. The petition was filed against a first information report under Section 506, I.P.C, however, the court proceeded to make observations on the validity of the notification thereby declaring Section 506 as non- cognizable and non-bailable offence. The court made the following observation in paragraph 8, which reads thus:
"It is surprising that while Sections 323, 324 and 325, I.P.C. are bailable offences the State Government has chosen to declare by this illegal notification of 1989 that Section 506, I.P.C. is a non-bailable and cognizable offence. This means that if person breaks someone's hand, or attacks him with a knife on his leg or hand he will be granted bail by the police on his mere request, but if he gives a threat he will be arrested and will have to apply for bail to the court. This is an anomalous situation. At any event, we are of the opinion that the notification dated 31.7.1989 issued under Section 10 of the Criminal Law Amendment Act, 1932 making Section 506, I.P.C. cognizable and non-bailable is illegal."
9. The Division Bench, however, did not take notice of Mata Sewak (supra) upholding the validity of the notification.........
11. Full Bench unanimously upheld the validity of the Government Notification making Section 506, I.P.C. cognizable and non-bailable. Decisions relied upon by the learned counsel for the applicant including Virendra Singh (supra) have not noticed the Full Bench decision rendered in Mata Sewak (supra), it appears that the decision was not placed nor brought to the notice of the court. The decision of the Division Bench and the subsequent decisions following Virendra Singh (supra) in my opinion is a per incuriam and does not lay down the correct legal position. The decisions rendered in Praveen Kumar (supra) and Bhagwan Singh (supra) following Mata Sewak (supra) lays down the correct law.
12 . In Narmada Bachao Andolan v. State of Madhya Pradesh and another. MANU/SC/0599/2011 : AIR 2011 SC 1989, the Supreme Court considered the doctrine of "Per Incuriam", paragraph 60, reads thus:
"PER INCURIAM - Doctrine:
'60. 'Incuria' literally means carelessness'. In practice per incuriam is taken to mean per ignoratium. The courts have developed this principle in relaxation of the rule of stare decisis. Thus, the 'quotable in law' is avoided and ignored if it is rendered, in ignorance of a statute or other binding authority. While dealing with observations made by a seven Judges-Bench in India Cement Ltd. etc. etc. v. State of Tamil Nadu etc. etc., MANU/SC/0226/1989 : AIR 1990 SC 85, the five Judges-Bench in State of West Bengal v. Kesoram Industries Ltd. and others, MANU/SC/0038/2004 : (2004) 10 SCC 201 : (AIR 2005 SC 1646 : 2004 AIR SCW 5998), observed as under:
'A doubtful expression occurring in a judgment, apparently by mistake or inadvertence, ought to be read by assuming that the court had intended to say only that which is correct according to the settled position of law, and the apparent error should be ignored, far from making any capital out of it, giving way to the correct expression which ought to be implied or necessarily read in the context..........A statement caused by an apparent typographical or inadvertent error in a judgment of the court should not be misunderstood as declaration of such law by the court.' 1 3 . Thus, 'per incuriam' are those decisions which are given in ignorance or forgetfulness of some statutory provision or authority binding on the court concerned, or a statement of law caused by inadvertence or conclusions that have been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. It is also well-settled, if intricacies of relevant provisions are either not noticed or brought to the notice of the court or if the view is expressed without analysing the said provision or the settled position of law, such a view cannot be treated as binding precedent. The Division Bench in Virendra Singh (supra) did not notice the judgment of a larger Bench in Mata Sewak (supra) upholding the validity of the notification making offence under Section 506 cognizable and non-bailable.
14. In view of the law laid down in Mata Sewak (supra) followed in Praveen Kumar (supra) and Bhagwan Singh (supra), Section 506 is cognizable and non-bailable and has to be tried as a State case not as complaint case."
I am also in agreement with the reasoning of Ld. single judge opined in Taiyab Khan (supra) and unfortunately the Full Bench decision of this Courtpassed in Mata Sewak Upadhyay (supra) was not brought in the knowledge of the division bench of this Court in Virendra Singh (supra) and thus in the considered opinion of this Court in presence of Full Bench decision of this Court, ratio of which has already been upheld by the Hon'ble Supreme Court in the case of Aires Rodrigues (Supra) there could not be any doubt that the view which has been opined by the Division Bench of this Court in Virendra Singh (supra) was not the correct view and thus for all the purposes having regard to the law laid down by the Hon'ble Full Bench decision of this Court in Mata Sewak Upadhyay (supra) Section 506 IPC is a cognizable and non-bailable offence.
Coming to the facts of the present case, the charge sheet has been filed under Sections 323, 504, 506 IPC and as has been held herein above Section 506 IPC is cognizable, in the considered opinion of this Court no illegality has been committed by the trial court while taking cognizance of the offences under Section 190 (1) (b) Cr.P.C.and in adopting the procedure of trial provided for the cases instituted on police report submitted under Section 173(2) Cr.P.C. and the provisions of Section 2(d) of Cr. P.C. do not apply to the present case. Thus the prayer of the applicant with regard to the quashing of proceedings and summoning order as well as charge sheet could not be accepted and the same is hereby refused.
At this juncture learned counsel for the applicants submits that the instant dispute is between the close relatives and there is a chance that the same may be resolved through settlement, however, applicants are having apprehension that when they will appear before the trial court the disposal of their bail application may take some time and they may be forced to remain in prison and having regard to the spread of Covid-19 pandemic situation, the same would be detrimental to their health and may further the strained relations between the parties.
So far as apprehension of the applicants is concerned the same do not appear to be founded on sound reasoning as Hon'ble Apex Court in Hussain and Ors. Vs. Union of India (UOI) and Ors., MANU/SC/0274/2017 and In Re: To issue certainn Guidelines Regarding inadequacies and deficiencies in Criminal Trials v. State of Andhra Pradesh and others, MANU/SC/0292/2021,have given various directions to criminal Courts for expeditious disposal of Bail applications of under trials. The ratio of above mentioned decisions is quite clear that, in the backdrop of Article 21 of the Constitution of India, as the personal liberty of a person is at stake, the bail applications should be decided, expeditiously.
In the backdrop of aforesaid decisions and keeping in view the entirety of facts and circumstances of the case and having regard to the submissions of learned counsel for the applicants, the application is disposed of with a direction to the trial Court that if the applicants appear and surrender before the Court below within 20 days from today and apply for bail, their prayer for bail may be considered and decided expeditiously in accordance with law.
Order Date :- 24.9.2021 Muk