State notification deemed to amend cognizability status of offenses under Bharatiya Nyaya Sanhita; mala fide motives behind F.I.R. questioned.

JUDGMENT :

1. Heard Sri Mukesh Kumar Pandey, learned counsel for the petitioner, Sri Anand Kumar Singh, learned counsel for the respondents and Sri Pankaj Saxena, learned AGA for the State.

2. The present petition has been filed with the following prayers:-

"a) to issue a writ, order or direction in the nature of certiorari quashing the order dated 08.07.2024 passed by Additional Police Commissioner Commissionerate Ganga Par P.S. Tharwai Prayagraj (Respondent no. 3).

b) to issue a writ, order or direction in the nature of certiorari quashing the impugned First Information Report dated 12.07.2024 registered as F.I.R. No. 196 of 2024, under Section 351 (2) of the Bharatiya Nyaya Sanhita, 2023, Police Station-Tharwai, Commissionerate Prayagraj."

3. Learned counsel for the petitioner at the very outset submits that he is not pressing prayer no.'a' and he confines his argument for the prayer no.'b' only.

4. Learned counsel for the petitioner submits that the impugned F.I.R. is bad in the eyes of law because Section 351 (2) of the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as "B.N.S.") (corresponding to Section 506 I.P.C.) is non- cognizable offence as per the first Schedule of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as "B.N.S.S.") for which only an N.C.R., under Section 174 B.N.S.S., can be registered and investigation of non-cognizable offence cannot be conducted without the permission of Magistrate under Section 174 (2) B.N.S.S.

5. It is further submitted by learned counsel for the petitioner that several civil and criminal disputes are pending between the petitioner and the first informant and the impugned F.I.R. is mala fide which has been lodged just to make out a ground to cancel the anticipatory bail of the petitioner in Case Crime No. 102 of 2024, under Sections 147 , 148, 149, 323, 325, 504, 506, 392 I.P.C. which was also lodged by the present first informant. It is lastly by learned counsel for the petitioner that the impugned F.I.R. deserves to be quashed as the same is barred by Section 174 (2) B.N.S.S. In support of his contention, learned counsel for the petitioner has also relied upon the judgement of the Apex Court in the case of State of Haryana and others vs. Bhajan Lal and others , 1992 Supp. (1) SCC 335 in which it is observed that if from the perusal of the F.I.R. no cognizable offence is made out then the F.I.R. deserves to be quashed.

6. Per contra, learned A.G.A. has submitted that though in the first Schedule of B.N.S.S. Section 351 (2) B.N.S. is non-cognizable offence, but in the corresponding Section 506 I.P.C., the State Government in exercise of its power under Section 10 of the Criminal Law (Amendment) Act, 1932 has issued a notification dated 31.7.1989, making Section 506 I.P.C. a cognizable offence. Therefore, in view of Section 531 (2)(b) of B.N.S.S., such amendment in Section 506 I.P.C. is saved and the same will continue to be cognizable offence in view of the State amendment. Therefore, Section 351 (2) B.N.S. is cognizable offence in the State of U.P. in view of the State notification dated 31.7.1989. In support of his contention, learned A.G.A. has relied upon the judgement of the Apex Court in the case of Aires Rodrigues vs. Vishwajeet P. Rane and others ; (2017) 11 SCC 62 as well as judgement of Single Bench of this High Court in the case of Rakesh and others vs. State of U.P.; Application u/s 482 No. 23628 of 2021, delivered on 29.11.2021.

7. After hearing learned counsel for the parties two questions have arisen for determination (i) whether Section 351 (2) B.N.S. is a cognizable offence in U.P., in view of the notification dated 31.7.1989 and the impugned F.I.R. was correctly lodged under Section 173 B.N.S.S. instead of Section 174 B.N.S.S. and; (ii) whether the impugned F.I.R. suffers from mala fide as civil and criminal proceedings have been pending between the parties.

8. For deciding first question, it would be relevant to consider Section 531 B.N.