# Brij Mohan v. State of U.P. & Anr

- **Citation:** (2024) 1 ILRA 936
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-11
- **Case number:** Application U/S 482. No. 12771 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brij-mohan-v-state-of-u-p-anr-51395
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 504 & 506 - Criminal Law
Amendment Act, 1932 - Section 10 -
Charge-sheet - Validity - Applicant submits that
1 All. Brij Mohan Vs. State of U.P. & Anr.
937
as all offences are non-cognizable, neither FIR
could be lodged nor charge-sheet could have
been submitted, nor cognizance could be taken
in St. case, only complaint could have been
entertained by Court in respect of noncognizable offences - Validity of notification
dated 31st July 1989 issued under Section 10 of
Criminal Law Amendment Act, 1932 by St. of
U.P having been upheld by Full Bench of High
Court in Mata Sewak Upadhyay (infra) and Full
Bench decision having been approved by
Supreme Court in Aires Rodrigues (infra), thus
there is no doubt that offence under Section
506 IPC, if committed in St. of U.P. is cognizable
offence - Submission of applicant is devoid of
merit and accordingly, rejected - No illegality
found in charge-sheet or in order taking
cognizance of offences. (Para 3, 15, 16)

Application Dismissed. (E-13)

List of Cases cited:

## Text

936 INDIAN LAW REPORTS ALLAHABAD SERIES
in arriving at truth and do real substantial
as well as effective justice.

Section 173 (8) of the Code of
Criminal Procedure is as under:-

"(8) Nothing in this section shall
be
deemed
to
preclude
further
investigation in respect of an offence after
a report under sub- section (2) has been
forwarded to the Magistrate and, where
upon such investigation, the officer in
charge of the police station obtains
further evidence, oral or documentary, he
shall forward to the Magistrate a further
report or reports regarding such evidence
in the form prescribed; and the provisions
of sub- sections (2) to (6) shall, as far as
may be, apply in relation to such report or
reports as they apply in relation to a report
forwarded under sub- section (2)."

20. In Sri Bhagwan Samardha
Sreepada
Vallabha
Venkata
Vishwanandha Maharaj v. State of A.P.,
AIR 1999 SC 2332 and in N.P. Jharia v.
State of M.P., AIR 2007 SC 2677, it has
been held that even after the Court took
cognizance of any offence, on strength of
police report first submitted, it is open to
Police to conduct further investigation. In
such a situation power of Court to direct
the Police to conduct further investigation
can not have any inhibition. There is
nothing in Section 173 (8) to suggest that
the Court is obliged to hear the accused
before any such direction is made. Casting
of any such obligation on Court would only
result in encumbering it with burden of
searching for all potential accused to be
afforded with opportunity of being heard.

21. On the basis of above discussion,
this Court is of the considered view that in
the facts and circumstances of this case no
formal permission of the concerned court
was necessary for S.P. Deoria before
transferring the investigation to another I.O
of another Police Station. Thus, the present
application has no force and is liable to be
dismissed.

O R D E R

22. This application under Section
482 Cr.P.C is rejected accordingly and the
stay order stands vacated.

23. Let a copy of this order be sent to
the Judicial Magistrate II, Deoria, to
proceed with the Criminal Case No. 1278
of 2005, under Sections 147, 149, 323, 452,
435, 504, 506 I.P.C, registered at Police
Station
Bankata,
District
Deoria,
in
accordance with the law and to conclude its
trial as early as possible, as the matter has
become very old.
----------
(2024) 1 ILRA 936
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.01.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 12771 of 2023

Brij Mohan ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Puneet Saxena, Sanjeev Kumar Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 504 & 506 - Criminal Law
Amendment Act, 1932 - Section 10 -
Charge-sheet - Validity - Applicant submits that
1 All. Brij Mohan Vs. State of U.P. & Anr.
937
as all offences are non-cognizable, neither FIR
could be lodged nor charge-sheet could have
been submitted, nor cognizance could be taken
in St. case, only complaint could have been
entertained by Court in respect of noncognizable offences - Validity of notification
dated 31st July 1989 issued under Section 10 of
Criminal Law Amendment Act, 1932 by St. of
U.P having been upheld by Full Bench of High
Court in Mata Sewak Upadhyay (infra) and Full
Bench decision having been approved by
Supreme Court in Aires Rodrigues (infra), thus
there is no doubt that offence under Section
506 IPC, if committed in St. of U.P. is cognizable
offence - Submission of applicant is devoid of
merit and accordingly, rejected - No illegality
found in charge-sheet or in order taking
cognizance of offences. (Para 3, 15, 16)

Application Dismissed. (E-13)

List of Cases cited:

1. Mata Sewak Upadhyay Vs St. of U.P., 1995
JIC 1168, (Para 12)

2. Virednra Singh & ors. Vs St. of U.P. & ors.
2002, Cri.L.J. 4265, (Paras 7, 8)

3. Hakim Singh Vs St. of U.P. & anr.,
Application u/s 482 Cr.P.C. No. 7147 of 2006

4. Aires Rodrigues Vs Vishwajeet P. Rane,
(2017) 11 SCC 62

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

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 noncognizable 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: -

"In exercise of the powers
conferred by Section 10 of the Criminal
Law Amendment Act, 1932 (Act No. XXIII
of 1932) read with Section 21 of the
General Clauses Act, 1897 (Act No. 10 of
1897)
and
in
supersession
of
the
notifications issued in this behalf, the
Governor is pleased to declare that any
offence punishable under Section 506 of the
Penal Code, 1860 when committed in any
district
of
Uttar
Pradesh,
shall
notwithstanding anything contained in the
Criminal Procedure Code, 1973 (Act No. 2
of 1974) be cognizable and non-bailable."
938 INDIAN LAW REPORTS ALLAHABAD SERIES

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:-

"10. Power of State Government
to make certain offences cognizable and
non-bailable.-

(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
noncognizable
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/VIII9-4 (2) (87) dated July 31, 1989 are valid.

10. The learned Counsel for the
applicant has placed reliance upon a
subsequent Division Bench judgment of
this Court in the case of Virednra Singh
and others Vs. State of U.P. and others,
2002, Cri.L.J. 4265, wherein it was held
that:-

"7. Section 10 of the Criminal
Law Amendment Act, 1932 does not give
power to the State Government to amend by
a notification any part of the Criminal
Procedure Code 1973. Since the Cr.P.C. of
1898 has been repealed by Section 484 of
the Cr.P.C. Act, 1973 we are of the opinion
that Section 10 of the Criminal Law
Amendment
Act,
1932
has
become
redundant and otiose. Hence in our opinion
no notification can now be made under
Section 10 of the Criminal Law Amendment
Act, 1932. Any such notification is illegal
for the reason given above. Hence we
declare 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 by which Section 506,
I.P.C. was made cognizable and non
bailable to be illegal. Section 506, I.P.C.
has to be treated as bailable and non -
cognizable offence.
1 All. Brij Mohan Vs. State of U.P. & Anr.
939

8. There is another reason also
why the aforesaid notification of 1989 is
illegal.
The Cr.P.C. of 1973
is
a
Parliamentary enactment. An act can only
be amended by another Act or by an
Ordinance, not by a simple notification.
Moreover, a Central Act cannot be
amended even by a U.P. Act unless the
assent of the President is taken vide Article
254(2) of the Constitution. The notification
of 1989 purports to amend a Central Act
(the Cr.P.C. of 1973) even without the
assent of the President."

11. The learned counsel for the
applicant has submitted that the judgment
of the Division Bench in Virendra Singh
(supra) has been followed in the order
dated 05.07.2019 passed by a coordinate
Bench of this Court in Hakim Singh Vs.
State of U.P. and another, Application
under Section 482 Cr.P.C. No. 7147 of
2006.

12. The judgment in the case of
Virendra Singh (Supra) was passed a
Division
Bench
without
taking
into
consideration
the
earlier
Full
Bench
judgment in the case of Mata Sewak
Upadhyay, which was binding on the
Division Bench.

13. Moreover, the aforesaid decision
of
the
Full
Bench
in Mata
Sewak
Upadhyay (Supra) has been approved by
the Hon'ble Supreme Court in Aires
Rodrigues v. Vishwajeet P. Rane, (2017)
11 SCC 62. The question in that case was
regarding validity of a similar Notification
issued under Section 10 of the Criminal
Law Amendment Act, 1932, declaring
Sections 186, 188, 189, 228, 295-A, 298,
505 or 507 of the Penal Code, 1860 when
committed in the Union Territory of Goa
(now State), Daman and Diu, to be
cognizable and Sections 188 or 506 IPC to
be non-bailable when committed, in the
said territory. The contention, in support of
the challenge, was that such a Notification
would be repugnant to the provisions of the
Code of Criminal Procedure and the State
could not issue a notification in conflict
with the Central legislation. The Hon'ble
Supreme Court held that: -

"merely because the 1898 Code
has been repealed and replaced by the
1973 CrPC, could not affect the situation.
Section 484 CrPC, 1973 as well as Section
8(1) of the General Clauses Act, 1897
saved a notification which may have been
issued under CrPC of 1898. Section 8 of
the General Clauses Act is as follows:

"8. Construction of references to
repealed enactments.-(1) Where this Act,
or any Central Act or Regulation made
after the commencement of this Act, repeals
and
re-enacts,
with
or
without
modification, any provision of a former
enactment, then references in any other
enactment or in any instrument to the
provision so repealed shall, unless a
different intention appears, be construed as
references to the provision so re-enacted.

(2) Where before the fifteenth day
of August, 1947, any Act of Parliament of
the United Kingdom repealed and reenacted, with or without modification, any
provision of a former enactment, then
reference in any Central Act or in any
Regulation or instrument to the provision
so repealed shall, unless a different
intention
appears,
be
construed
as
references to the provision so re-enacted."

In these circumstances, we are
unable to sustain the view taken in the
impugned orders.
940 INDIAN LAW REPORTS ALLAHABAD SERIES
10. It is pointed out by the learned counsel
for the appellant that a contra view has
been taken by the High Courts of Gujarat,
Delhi, Allahabad and Madras in Vinod Rao
v. State of Gujarat, Sant Ram v. Delhi
State, Mata Sewak Upadhyay v. State of
U.P.,
P.
Ramakrishnan
v.
State
respectively. He also pointed out that a
different view has been taken by the High
Court of Allahabad in Pankaj Shukla v.
Anirudh Singh without noticing the Full
Bench decision of the High Court of
Allahabad in Mata Sewak Upadhyay."

14. The Hon'ble Supreme Court
specifically approved the view taken in
Mata Sewak Upadhyay (Supra) by stating
that: -

"12. We approve the view taken
by the High Courts of Gujarat, Delhi,
Allahabad and Madras in Vinod Rao, Sant
Ram, Mata Sewak Upadhya and P.
Ramakrishnan and disapprove the view
taken by the High Court of Allahabad in
Pankaj Shukla"

15. The validity of the aforesaid
notification dated 31st July 1989 having
been upheld by a Full Bench of this Court
in Mata Sewak Upadhyay (Supra) and the
Full
Bench
decision
having
been
approved by the Hon'ble Supreme Court
in Aires Rodrigues (Supra), there is no
doubt that an offence under Section 506
IPC, if committed in the State of U.P. is a
cognizable offence.

16. Therefore, the submission of the
learned Counsel for the applicant lacks
merits and the same is accordingly rejected.
There is no illegality in 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.

17. The application under Section 482
Cr.P.C. lacks merit and the same is
dismissed.
----------
(2024) 1 ILRA 940
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.01.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 12797 of 2023

Anshu Gaur ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Amit Kumar Singh

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,1973 - Section 482 - The
applicant sought to expunge remarks made
against him in paragraphs 105 and 106 of the
trial court's judgment dated 10.11.2021 in
Session Trial No. 460/2017, alleging they cast
aspersions on his conduct as a witness - Held,
the remarks were not sweeping or generalized
but based on a detailed analysis of the
applicant's St.ments and conduct, and thus did
not warrant expungement under Section 482
Code of Criminal Procedure,1973. (Paras 14, 24,
26, 28)

Judicial Restraint and Remarks Against
Witnesses - The applicant argued that adverse
remarks violated principles of fairness and
judicial restraint, citing St. of U.P. Vs Mohammad