# Ashish Singh @ Rinku Singh v. State of U.P. & Anr

- **Citation:** (2022) 3 ILRA 290
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-03
- **Case number:** Application U/S 482 No.810 of 2022
- **Bench:** Umesh Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-singh-rinku-singh-v-state-of-u-p-anr-48180
- **Pages:** 4

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Quashing
of charge sheet as well as summoning order-
'Per Incuriam' are those decisions which are
given in ignorance or forgetfulness of some
statutory provisions or authority binding on
the court concerned or a St.ment 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
demonstratively wrong.

B. Criminal Law - Indian Penal Code, 1860
- Section 506 -. is cognizable and has to be
tried as a St. case and not as complaint case.

Application dismissed. (E-12)

List of Cases cited:-

## Text

290 INDIAN LAW REPORTS ALLAHABAD SERIES
proceeding in Case No.1567 of 2006 (Firm
Khalique and Brothers Vs. Firm Aqsa
Testiles), pending in the Court of Chief
Judicial Magistrate, Mau, District Mau.

15. The application stands allowed.
----------
(2022)03ILR A290
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.02.2022

BEFORE

THE HON'BLE UMESH KUMAR, J.

Application U/S 482 No.810 of 2022

Ashish Singh @ Rinku Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ran Vijay Singh

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Quashing
of charge sheet as well as summoning order-
'Per Incuriam' are those decisions which are
given in ignorance or forgetfulness of some
statutory provisions or authority binding on
the court concerned or a St.ment 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
demonstratively wrong.

B. Criminal Law - Indian Penal Code, 1860
- Section 506 -. is cognizable and has to be
tried as a St. case and not as complaint case.

Application dismissed. (E-12)

List of Cases cited:-
1. Virendra Singh Vs St. of U.P. & ors. 2000(2)
JCC 649(All)

2. Bahori & ors. Vs St. of U.P. & ors. 2017(10)
ADJ 480

3. Dr. Rakesh Kumar Sharma Vs St. of U.P. &
anr. 2007(9) ADJ 478

4. Awadhesh Kumar & ors. Vs St. of U.P. & anr.
2008(2) ADJ 253

5. Dhanveer & ors. Vs St. of U.P. & anr. 2010(9)
ADJ 496

6. Mata Sewak Upadhyaya Vs St. of U.P. & ors.
1995 AWC 2031(FB)

7. Bhagwan Singh Vs St. of U.P. & ors. 2016(3)
ACR 3365

8. Praveen Kumar & anr. Vs St. of U.P. & ors.
2011(2) ACR 2083
(Delivered by Hon'ble Umesh Kumar, J.)

1. Heard learned counsel for the
applicant and learned A.G.A.appearing for
State of U.P.-opposite party no.1 and
perused the material placed on record.

2. The instant application under
Section 482 has been filed seeking
quashing of the impugned charge-sheet
dated 04.01.2019 as well as summoning
order dated 15.10.2019 in Case No.1216 of
2019 (State vs. Ashish Singh @ Rinku
Singh) arising out of Case Crime No. 257
of 2018 under Sections 147, 149, 352, 427,
504 and 506 IPC, P.S. Lohta, District
Varanasi,
pending
before
Judicial
Magistrate-IV, Varanasi.

3. It is submitted by learned counsel
for the applicant that initially F.I.R. has
been lodged against two known persons
and some unknown persons. Even during
investigation their name could not be
3 All. Ashish Singh @ Rinku Singh Vs. State of U.P. & Anr.
291
ascertained and charge-sheet has been
submitted only against applicant as another
accused
who
has
expired
during
investigation.

4. The learned counsel for the
applicants submitted that the offence under
Sections 147, 149, 352, 427, 504 and 506
IPC are non-cognizable hence in view of
the explanation to Section 2(d) of Cr.P.C.,
the case can not proceed as State case but
has to proceed as complaint case. He
further
submitted
that
the
learned
Magistrate has erroneously passed an order
taking cognizance on the charge-sheet. In
support of his submission reliance has been
placed on the decisions rendered by the
Division Bench in Virendra Singh vs.
State of U.P. and others 2000 (2) JCC
649 (All) and on the orders/decisions
following the Division Bench decision
passed in Bahori and others vs. State of
U.P. and others [2017 (10) ADJ 480]; Dr.
Rakesh Kumar Sharma vs. State of U.P.
and another [2007 (9) ADJ 478];
Awadhesh Kumar and others vs. State of
U.P. and another [2008 (2) ADJ 253];
and Dhanveer and others vs. State of
U.P. and another [2010 (9) ADJ 496].

5. I have carefully considered the
above submissions.

6. It is not disputed that the offence
under Sections 147, 149, 352, 427, 504
and 506 IPC are non-cognizable. Two
persons were named in the F.I.R., one
expired during investigation. The sole
argument that during investigation, none
was identified nor anyone was traced by
Police, hence submission of charge-sheet
under Sections 147 and 149 of I.P.C. is
an error and no charge-sheet can be
submitted, under the circumstances in this
reference
F.I.R.
and
statement
of
witnesses are relevant at this stage.
Moreover, invoking the powers under
Section 482 Cr.P.C. is unwarranted to
interfere in the case at pre-trial stage,.
The offence under Section 506 IPC was
made cognizable and non-bailable vide
U.P. Govt. notification No. 777/VIII 94(2)-87 dated July 31, 1989, published
in the U.P. Gazette, Extra, Part-4,
Section (kha) dated 2nd August, 1989.
This notification was held to be illegal in
Virendra Singh (supra). Consequently,
offence punishable under Section 506
IPC was held to be non-cognizable and in
view of the explanation to Section 2(d) of
Cr.P.C. report of the police officer after
investigation disclosing case of noncognizable offence has to be deemed to
be a complaint, therefore, the police
officer submitting the report has to be
deemed to be a complaint. In other words
the charge-sheet submitted by the police
in a non-cognizable offence shall be
treated to be a complaint and the
procedure prescribed for hearing of the
complaint case shall be applicable to that
case. It is in this backdrop, the learned
counsel for the applicant submits that the
charge-sheet
submitted
by
the
Investigating Officer shall be treated as a
complaint and the cognizance taken by
the Magistrate shall be deemed to have
been taken on a complaint.

7. Learned A.G.A. has opposed the
application placing reliance on the Full
Bench decision rendered in Mata Sewak
Upadhyay vs. State of U.P. and others,
1995 AWC 2031 (1996 (1) ECRC 97),
wherein, the validity of the notification
making
Section 506
IPC
cognizable
offence vide U.P. notification was upheld.
Relying
on
Mata
Sewak
(supra)
subsequent decisions have been rendered in
Bhagwan Singh vs. State of U.P. and
292 INDIAN LAW REPORTS ALLAHABAD SERIES
others, 2016 (3) ACR 3365 and Praveen
Kumar and another vs. State of U.P. and
others, 2011 (2) ACR 2083.

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 IPC, 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 31-71989 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. The
questions, inter alia, that was referred and
were permitted to be raised in Mata Sewak
reads thus:

iv. Whether provisions of Section
10 of Criminal Law Amendment Act, 1932
are constitutionally invalid?

v. Whether the U.P. Amendment
Notification No. 777/VIII 94(2)87 dated
July 31, 1989, published in the U.P.
Gazettee, dated August 2, 1989, making
offence under Section 506, IPC cognizable
and non-bailable is invalid?"

In para 195 the answers to the
questions referred to the Full Bench or
permitted to be raised before it was
answered as follows:

6. Section 10 of the Criminal Law
Amendment Act, 1932 is valid.

7. U.P. Government Notification
dated July 31, 1989, making offence under
Section 506 IPC cognizable and nonbailable is valid."

10. Full Bench unanimously upheld
the validity of the Government Notification
making Section 506 IPC 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) 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.

11. In Narmada Bachao Andolan
Vs. State of Madhya Pradesh & Anr.,
AIR 2011 SC 1989, the Supreme Court
considered the Doctrine of "Per Incuriam",
paragraph 60, reads thus:

"PER INCURIAM - Doctrine:
3 All. Rajendra Prasad Patel & Anr. Vs. State of U.P. & Ors.
293

'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 JudgesBench in India Cement Ltd. etc. etc. v.
State of Tamil Nadu etc. etc., AIR 1990
SC 85, the five Judges-Bench in State of
West Bengal v. Kesoram Industries Ltd. &
Ors., (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.'

12. 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.

13. 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 nonbailable and has to be tried as a State case not
as complaint case.

14. The argument advanced by learned
counsel for the applicant that submission of
charge-sheet should be treated as complaint
under Section 2(d) of Code of Criminal
Procedure cannot be accepted at this stage.
Hence, order taking cognizance against the
applicant need not be interfered.

15. In the circumstances, the petition
being devoid of merit is, accordingly,
dismissed. However, the applicant is at liberty
to move application for discharge at an
appropriate stage.
----------
(2022)03ILR A293
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No.1955 of 2022

Rajendra Prasad Patel & Anr. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties