Point of law : The rule of construction laid down in Section 8 of the General Clauses Act, 1897 also requires that reference to the repealed enactment made in any instrument be construed as reference to the repealing enactment or the new enactment which has been brought into force, and the expression “instrument” used in Section 8 of the General Clauses Act, 1897 would necessarily include a Notification such as the Notification issued under Section 10 of the Amendment Act, 1932. It would follow that reference to Code of 1898 in Section 10 of the Amendment Act, 1932 and in the Notification issued thereunder would be required to be read as being in reference to the Code of 1973, and the Notification issued under Section 10 would have to be construed in a manner so as to have the effect of modifying the relevant provisions of the Code of 1973.

JUDGMENT :

1. Heard Sri Satish Solanki, learned counsel for the applicants and Ms. Sushma Soni, learned Additional Government Advocate appearing for the State opposite party.

2. The present application under Section 482 of the Code of Criminal Procedure, 1973, (The Code of 1973) has been filed seeking to quash the entire proceedings of Criminal Case No. 379 of 2021 (State Vs. Rakesh and others) arising out of Case Crime No. 0245 of 2021 under Section 504 & 506, police station-Jamunapur, District-Mathura, pending in the court of learned Judicial Magistrate, Mathura.

3. The only ground which is urged to seek quashing of the proceedings is that the F.I.R. having been lodged under Sections 504 and 506 of the Indian Penal Code, 1860, [The Penal Code] (both offences being non-cognizable and bailable), the matter could not have been investigated in the absence of any order under Section 155(2) CrPC having been passed by the Magistrate and nor could the police report have been filed. It is submitted that filing of the charge sheet and taking of cognizance on the same being illegal, the proceedings cannot be sustained.

4. Learned counsel for the applicants also draws reference to a decision of this court in Virendra Singh Vs. State of Uttar Pradesh, 2002 (2) AllCriC 609, to contend that the U.P. Amendment in terms of which the offence under Section 506 was made cognizable and non-bailable, has been held to be illegal.

5. Controverting the aforesaid submissions, learned Additional Government Advocate submits that the question with regard to the validity of the Notification dated 31.07.1989 whereunder any offence punishable under Section 506 of the Penal Code, when committed in the State of Uttar Pradesh has been made cognizable and non-bailable, was subject matter of consideration before a Full Bench of this court in Mata Sewak Upadhyay and another Vs. State of U.P. and others, 1995 JIC 1168 (ALL) (FB), and the Notification was held to be valid. It is further submitted that in a matter relating to a similar controversy which had arisen from the State of Goa, the Supreme Court in Aires Rodrigues Vs. Vishwajeet P. Rane and others, (2017) 11 SCC 62, has approved the view taken in the decision in the case of Mata Sewak Upadhyay, and in view thereof, the contention sought to be raised questioning the validity of the Notification issued by the State of U.P. in respect of making the offence under Section 506 to be cognizable and non-bailable, cannot be sustained.

6. In order to appreciate the controversy, the Notification No. 777/VIII 9-4(2)-87 dated 31.07.1989, [Noti. No. 777/VIII 9-4(2)-87, dt. 31-7-1989, published in U.P. Gazettee, Ext., Pt.-A, Section (Kha), dt. 2-8-1989], would be required to be adverted to.

7. The Notification in question reads as follows:

“Any offence punishable under Section 506 I.P.C., when committed in any district of Uttar Pradesh, shall be notwithstanding anything contained in the Code of Criminal Procedure, 1973 be cognizable and non-bailable.”

8. The aforesaid Notification was issued in exercise of powers under Section 10 of the Criminal Law Amendment Act, 1932, [Amendment Act, 1932], which reads as follows:

“10. Power of State Government to make certain offences cognizable and non-bailable.—(1) The [State Government], (Substituted for “Provincial Government” by A.L.O., 1950] may, by notification in the [Official Gazette], (Substituted for “Local Gazette” by A.O., 1937], declare that any offence punishable under Sections 186, 188, 189, 190, 228, 295-A, 298, 505, 506 or 507 of the Penal Code, 1860, when committed in any area specified in the notification shall, notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 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], (Amendment Act, 1932) may, in like manner and subject to the like conditions, and with the like effec