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IN THE HIGH COURT OF ALLAHABAD
SUBHASH VIDYARTHI, J.
Brij Mohan – Appellant
Versus
State Of U.P. Thru. Prin. Secy. Home Lko. And Another – Respondents
Application U/S 482 No.12771 of 2023
Decided on : 11-01-2024
Cognizable Offences - Criminal Law Amendment Act, 1932 - Sections 323, 504, 506 I.P.C. - Notification No. 777/VIII-9 4(2)-87 - Sections 186, 188, 189, 190, 228, 295A, 298, 505, 506 or 507 of the Penal Code, 1860 - Summary of Acts and Sections: The court discussed the validity of the charge sheet under Sections 323, 504, 506 I.P.C. and the notification issued by the Uttar Pradesh Government under Section 10 of the Criminal Law Amendment Act, 1932, making Section 506 I.P.C. a cognizable offence in the state. The court referred to the Full Bench judgment in Mata Sewak Upadhyay v. State of U.P. and the subsequent approval of the decision by the Hon'ble Supreme Court in Aires Rodrigues v. Vishwajeet P. Rane, (2017) 11 SCC 62, to establish the validity of the notification and the cognizability of the offence under Section 506 I.P.C.
Fact of the Case:
The applicant challenged the validity of the charge sheet and the order taking cognizance of the offences under Sections 323, 504, 506 I.P.C. on the grounds that the offences were non-cognizable and only a complaint could have been entertained by the Court.
Finding of the Court:
The court rejected the submission, citing the notification issued by the Uttar Pradesh Government under Section 10 of the Criminal Law Amendment Act, 1932, which made the offence under Section 506 I.P.C. cognizable in the state.
Issues: Validity of the charge sheet and the order taking cognizance of the offences under Sections 323, 504, 506 I.P.C.
Ratio Decidendi: The court relied on the Full Bench judgment in Mata Sewak Upadhyay v. State of U.P. and the subsequent approval of the decision by the Hon'ble Supreme Court in Aires Rodrigues v. Vishwajeet P. Rane, (2017) 11 SCC 62, to establish the validity of the notification and the cognizability of the offence under Section 506 I.P.C.
Final Decision: The application under Section 482 Cr.P.C. was dismissed as lacking merit.
JUDGMENT :
1. Heard Sri Puneet Saxena, the learned counsel for the applicant and Sri Anurag Verma, the learned A.G.A-I for the State.
2. By means of the instant applicant filed under Section 482 Cr.P.C, the applicant Brij Mohan has challenged the validity of the charge sheet no. 1 of 2023 dated 05.06.2023 under Sections 323, 504, 506 I.P.C. arising out of Case Crime No. 272/2023, Police Station Lalganj, District Raebareli, and the order dated 13.12.2023 passed by the Additional Chief Judicial Magistrate, Court No. 4, Raebareli in Case No. 24381 of 2023, taking cognizance of the aforesaid offences.
3. The submission of the learned counsel for the applicant is that all the offences are non-cognizable and, therefore, neither an F.I.R could be lodged regarding the offence under Section 323, 504, 506 nor could a charge sheet have been submitted nor could the court have taken cognizance of the offence and have summoned the applicant to face the trial of a State Case and only a complaint could have been entertained by the Court in respect of non-cognizable offences.
4. The Offence under Section 323, 504 I.P.C are undisputedly non-cognizable offence. The first Schedule appended to the Criminal Procedure Code, 1973 mentions the offence under Section 506 also to be 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, which provides as follows: -
5. The aforesaid notification has been issued under Section 10 of the Criminal Law Amendment Act, 1932 (Act No. 23 of 1932), which provides as follows:—
(1) The State Government may, by notification in the Official Gazette, declare that any offence punishable under section 186, 188, 189, 190, 228, 295A, 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 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 Penal Code, 1860, shall be non-bailable.”
6. In Mata Sewak Upadhyay v. State of U.P., 1995 JIC 1168, the question of validity of the aforesaid provision of was assailed before a Full Bench of this Court on the following grounds:
7. Section 10 of the Criminal Law Amendment Act, 1932 authorised the State Government to make certain non-cognizable offences under Code of Criminal Procedure, 1898 (5 of 1898), cognizable by notification, but this power could be exercised in respect of the Code of Criminal Procedure, 1898 only and after its repeal by virtue of Section 484 of Criminal Procedure Code, 1973, the power ceased to exist.
8. Section 10 of the Act of 1932 is violative of Article 14 of the Constitution, inasmuch as it is bereft of any guideline in respect of an area to be specified in the notification.
9. The Full Bench rejected both the contentions and held that Section 10 of the Act of 1932 and Notification No. 777/VIII-9-4 (2) (87) dated July 31, 1989 are valid.
10. The learned Counsel for the applicant has pl
AI
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