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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.

"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.

"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."