# Mahesh & Ors v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 39
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-12
- **Case number:** Application U/S 482 No. 24499 of 2023
- **Bench:** Gajendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-ors-v-state-of-u-p-anr-50646
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 155(4) - Where a case
relates to two or more offences of which
at least one is cognizable, the case shall
be deemed to be a cognizable case,
notwithstanding that the other offences
are non-cognizable - Indian Penal Code,
1860 - Sections 504 & 506 - an offence
under Section 506 IPC, if committed in the
State of U.P. is a cognizable offence.(Para
-14, 16)
Quashing of - charge sheet, cognizance as well
as summoning order - accused-applicants and
informant-opposite party no.2 are accused of
illegally grabbing a portion of land - belonging
to opposite party no.2 - despite a land mark set
by Sub Divisional Magistrate - opposite party no.
2 was allegedly abused and manhandled by
applicants - leading to FIR - Case involved an
offense under Section 504 and Section 506 IPC -
Section 506 was initially non-cognizable - Uttar
Pradesh Government issued Notification No.
777/VIII-9 4(2)-87 in 1989 - making Section
506 IPC cognizable and non-bailable - despite
non-cognizable status in the first schedule.
(Para -7)

HELD:-Accused, charged under Sections 504
and 506 IPC, must be tried in the manner
prescribed
for
for
trial
of
cognizable
offences.(Para -17)

Application u/s 482 Cr.P.C. rejected. (E-7)

List of Cases cited:-

## Text

8 All. Mahesh & Ors. Vs. State of U.P. & Anr.
39
preferred by Sri Arvind Kumar Sharma,
Advocate, since the same application has
already been allowed by the Bar Council of
U.P. and as such, the matter was out of
judicial ambit of learned District and
Sessions Judge,

28. In view of the aforementioned
facts and circumstances, the order dated
05.04.2023 passed by the learned District
and Sessions Judge, Agra is hereby quashed
and set aside.

29. The present application stands
allowed accordingly.
----------
(2023) 8 ILRA 39
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.07.2023

BEFORE

THE HON'BLE GAJENDRA KUMAR, J.

Application U/S 482 No. 24499 of 2023

Mahesh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Aishwarya Pratap Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 155(4) - Where a case
relates to two or more offences of which
at least one is cognizable, the case shall
be deemed to be a cognizable case,
notwithstanding that the other offences
are non-cognizable - Indian Penal Code,
1860 - Sections 504 & 506 - an offence
under Section 506 IPC, if committed in the
State of U.P. is a cognizable offence.(Para
-14, 16)
Quashing of - charge sheet, cognizance as well
as summoning order - accused-applicants and
informant-opposite party no.2 are accused of
illegally grabbing a portion of land - belonging
to opposite party no.2 - despite a land mark set
by Sub Divisional Magistrate - opposite party no.
2 was allegedly abused and manhandled by
applicants - leading to FIR - Case involved an
offense under Section 504 and Section 506 IPC -
Section 506 was initially non-cognizable - Uttar
Pradesh Government issued Notification No.
777/VIII-9 4(2)-87 in 1989 - making Section
506 IPC cognizable and non-bailable - despite
non-cognizable status in the first schedule.
(Para -7)

HELD:-Accused, charged under Sections 504
and 506 IPC, must be tried in the manner
prescribed
for
for
trial
of
cognizable
offences.(Para -17)

Application u/s 482 Cr.P.C. rejected. (E-7)

List of Cases cited:-

1. Santosh Kumar & ors. Vs St. of U.P. & anr.,
2019:AHC:18156

2. Anurag Yadav & ors. Vs St. of U.P. & anr,
2020:AHC:39811

3. Rama Shankar Upadhayay & ors. Vs St. of
U.P. & anr., 2022:AHC:190995

4. Virendra Singh Vs St. of U.P., 2002 ILR Alld
Series , 653 2002 (2) UC 453

5. Meta Sewak Upadhyay Vs St. of U.P., 1995 CJ
(All) 1158

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

(Delivered by Hon'ble Gajendra Kumar, J.)

1. Heard learned Counsel for the
applicants and learned AGA for the Staterespondents.

2. By means of the present application
under Section 482 of
the
Criminal
40 INDIAN LAW REPORTS ALLAHABAD SERIES
Procedure Code the applicants have prayed
for quashing of the charge sheet dated
05.08.2022 and cognizance as well as
summoning order dated 21.12.2022 in
Criminal Case No. 24449 of 2022 (State vs.
Mahesh and others) arising out of Case
Crime No.207 of 2022, under Sections 504
and 506 IPC, Police Station Soro, District
Kasganj, pending in the Court of Chief
Judicial Magistrate, Kasganj.

3. The accused-applicants and the
informant-opposite party no.2 have their
lands beside each other. It is being alleged
that the aforesaid applicants tried to
illegally grab the portion of the land which
belongs to opposite party no.2 inspite of the
land mark fixed by the Sub Divisional
Magistrate concerned demarcating the area
of land belonging to the opposite party
no.2. It is further alleged that when the
opposite party no.2 tried to intervene and
defend the aforesaid he was abused and
manhandled
by
the
applicants.
In
furtherance thereof, a First Information
Report dated 05.06.2022 was lodged.

4. An investigation was carried out
pursuant
to
the
aforesaid
FIR
and
statements of witnesses were recorded.
After completion of investigation, the
police has submitted the charge sheet on
05.08.2022 stating that upon investigation,
from the statements of the witnesses and
inspection of the site of occurrence,
commission of the offence under Sections
434 and 447 IPC were not found and
merely offences under Sections 504 and
506 IPC were found to have been
committed. The implication of the two
named accused in the FIR i.e. Sanjay and
Radheysham
was
not
found
during
investigation due to lack of evidence
against them and therefore they were
exonerated from the charge sheet. The
charge sheet has been forwarded to the
court for trial of the applicant.

5. Learned counsel for the applicant
has argued that although originally the first
information report was lodged under
Sections 434, 447, 504, 506 IPC but during
investigation, the allegation with regard to
commission of offence under Sections 434
and 447 IPC was found to be false and only
a case under Sections 504 and 506 IPC was
found to be made out against the
applicants, both of which are noncognizable offences and, therefore, the case
against the applicants can only proceed as a
complaint. In support of his submission, he
has invited attention of the Court to the
Explanation appended to Section 2 (d) of
Cr.P.C.
In
order
to
appreciate
his
submission, the relevant provision of
Cr.P.C. is being reproduced below: -

"(d)
"complaint"
means
any
allegation made orally or in writing to a
Magistrate, with a view to his taking action
under this Code, that some person, whether
known or unknown, has committed an
offence, but does not include a police
report.

Explanation.--A report made by a
police officer in a case which discloses,
after investigation, the commission of a
non-cognizable offence shall be deemed to
be a complaint; and the police officer by
whom such report is made shall be deemed
to be the complainant"

6. Learned counsel for the applicants
has placed reliance on a judgments of this
Court in (i) Santosh Kumar and 2 Others
vs.
State
of
U.P.
And
Another
2019:AHC:18156, and (ii)Anurag Yadav
And 2 Ors. vs. State of U.P. And Anr
2020:AHC:39811, in these two cases
originally the FIR was lodged under
8 All. Mahesh & Ors. Vs. State of U.P. & Anr.
41
sections 323, 504 IPC whereas in, (iii)
Rama Shankar Upadhayay And 3 Others
vs.
State
of
U.P.
And
Another
2022:AHC:190995 in which FIR was
lodged under sections 323, 504 and 427
IPC. In this backdrop a coordinate Bench
of this Court held that the Magistrate shall
not proceed with the case as a State case
but he shall proceed with it as a complaint
case as provided in the explanation to
Section 2(d) Cr.P.C.

7. However, in the present case, apart
from an offence under Section 504, an
offence under Section 506 IPC has also
been found to have been committed.
Although in the first schedule appended to
the code of criminal procedure, 1973
Section 506 is mentioned to be a noncognizable offence, the Uttar Pradesh
Government has issued a Notification No.
777/VIII-9 4(2)-87, dated July 31,1989,
published in U.P. Gazette, Extra Part-4,
Section (Kha), dated 2nd August, 1989 by
which the Section 506 IPC was made
cognizable and non bailable.

8. The aforesaid 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 states
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 super session of the
notifications issued in this behalf, the
Governor is pleased to declare that any
offence punishable under Section 506 of the
Indian Penal Code when committed in any
district
of
Uttar
Pradesh,
shall
notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (Act
No.2 of 1974) be cognizable and nonbailable."

9. 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 Indian Penal Code (45 of
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 Indian Penal
Code (45 of 1860), shall be non-bailable."

10. The validity of the aforesaid
Notification
dated
31-07-1989
was
examined by a Division Bench of this
Court in Virendra Singh versus State of
U.P., 2002 Indian Law reports Allahabad
Series 653 2002 (2) UC 453 and in that
case, this Court held as follows: -

"6. 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 Code of
Criminal Procedure, 1973. Since the Code
of Criminal Procedure of 1898 has been
42 INDIAN LAW REPORTS ALLAHABAD SERIES
repealed by Section 484 of the Code of
Criminal Procedure. 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-94(2)-87,
dated July 31, 1989, published the U.P.
Gazette, Extra Part-4, Section (kha), dated
2nd August, 1989 by which Section 506
I.P.C. was made cognizable and nonbailable to be illegal. Section 506 I.P.C.
has to be treated as bailable and noncognizable offence."

11. However, in the case of Meta
Sewak Upadhyay versus State of U.P.,
1995 CJ (All) 1158, a Full Bench of this
Court examined the validity of the
aforesaid Notification. It may be relevant to
note that although the Full Bench has at
some places mentioned the date of the
Notification as August 2, 1989, which is
actually the date of publication of the
Notification in the Official Gazette and at
some places the date of the Notification is
mentioned as July 31, 1989 but the contents
of the Notification are the same as those
which have been reproduced above. The
Full Bench held as follows: -

"61.There are two notifications of
December 29, 1932 and August 2, 1989
which came to be issued in exercise of the
powers conferred by Section 10 of the Act
of 1932. Whereas, the first notification was
made applicable only to a few districts,
mentioned therein, the second notification
of August 2, 1989 which was issued in
super session of the notifications earlier
issued in this behalf, states that the
Governor is pleased to declare that any
offence punishable under Section 506 of the
Indian Penal Code (IPC) when committed
in any district of Uttar Pradesh, shall
notwithstanding anything contained in the
Criminal
Procedure
Code,
1973,
be
cognizable and non-bailable. From the
second notification it is, therefore, clear
that that was issued in super session of the
notification of December 29, 1932 and the
effect of this notification is that the offence
punishable under Section 506, IPC when
committed at any place through, out the
Uttar
Pradesh,
shall
notwithstanding
anything
contained
in
the
Criminal
Procedure Code, be cognizable and nonbailable. In the first Schedule to the
Criminal Procedure Code, 1973, the
offence under Section 506 IPC is described
as non-cognizable and bailable, but by
virtue of Sec. 10 of the Act of 1932, the
same has been declared for the entire Uttar
Pradesh as cognizable and non-bailable by
the notification of August 2, 1989. Sec. 10
of the Act of 1932 confers powers of the
State Government to declare by notification
in the official Gazette that an offence
punishable under Section 506 IPC inter
alia when committed in any area specified
in the notification, shall notwithstanding
anything contained in the Code of Criminal
Procedure, 1898, be cognizable and nonbailable and thereupon the Code of
Criminal Procedure, 1898 shall while such
notification remain in force, be deemed to
be amended accordingly. The submission is
that by the Act of 1932, an amendment was
made in the Code of Criminal Procedure,
1898, which stood repealed by virtue of
Section
484
of
Code
of
Criminal
Procedure, 1973, which was assented by
the President of April 1, 1974. The Act of
1932 having been passed simply to amend
the Cr. P.C. of 1889, the argument of Sri
Misra is that the former could not survive
beyond the life of the Cr. P.C. of 1898,
8 All. Mahesh & Ors. Vs. State of U.P. & Anr.
43
which came to an end after being repealed
in April, 1974. In short, he submits that the
life of the Amending Act cannot be more
that the principal act and that the
amending act is co-extensive and coterminus with the Principal Act and that Cr.
P.C. of 1898 which was amended by the Act
of 1932, having been repealed in April,
1974, the Act of 1932 could not have
survived thereafter. Sri Tulsi argues that it
is a misnomer to say that the Act of 1932 is
simply an Amending Act. He submits that
the Act of 1932 is named as "The Criminal
Law Amendment Act, 1932." because that
has made some amendment in the general
body of criminal law and, in fact, the Act of
1932 is not only an Amending Act but a
unique blend of substantive law as well as
of the provisions making an amendment in
the Cr. P.C., 1898 and that it having
contained substantive provisions as well,
cannot be said to be co-terminus with the
Cr. P.C. of 1898 in which certain
amendments were made, says Sri Tulsi.
From perusal of the Act of 1932, the
submission of Sri Tulsi appears to be
correct that the said enactment is not
merely an Amending Act but that is a blend
of substantive provisions as well as the
provisions amending Cr. P.C. of 1898. So
the Act of 1932 is still on the statute book,
notwithstanding the repeal of Cr. P.C. 1898.

62. Therefore, the contention of
Sri Misra that impugned notification of
August 2, 1989, having been issued under a
dead enactment is invalid, has to be
rejected.

Then Sri Trivedi whose assistance
was sought by Sri R. R. Dwivedi submits
that 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. He submits that the State
Government is given free hand with
unguided, unchannelised and arbitrary
power to issue notification for any area
and, therefore, Section 10 suffers from the
vice of excessive delegation. Section 10 of
the Act of 1932 is reproduced as under :

"10 Power of Local Government
to make certain offences cognizable and
non-bailable.-(I) The Local Government
may, by notification in the local official
Gazette, declare that any offence punishable under Section 186, 188, 189, 190, 228,
295A, 298, 505, 506 or 507 of the Indian
Penal Code, when committed in any area
specified
in
the
notification
shall,
notwithstanding anything contained in the
Code
Criminal
Procedure,
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 Local 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 Indian Penal
Code shall be non-bailable."

12. The Full Bench proceeded to hold
that "Section 10 of the Act of 1932 and
Notification No. 777/VIII-9-4 (2) (87)
dated July 31, 1989 are valid.

13. The aforesaid Full Bench decision
in Meta Sewak Upadhyay (Supra) has
been approved by the Hon'ble Supreme
Court
in
Aires
Rodrigues
versus
Vishwajeet P. Rane (2017) 11 SCC 62.

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

15. Therefore, the contention of the
learned counsel for the applicants/accused
has been charged with commission of noncognizable offences only based on the
decisions in cases of Santosh Kumar and
2 Others vs. State of U.P. And Another,
Anurag Yadav And 2 Ors. vs. State of
U.P. And Anr and Rama Shankar
Upadhayay And 3 Others vs. State of
U.P.
And
Another
(Supra),
is
misconceived as in the aforesaid cases, the
accused had been charged with offence
under Sections 323, 504 and 427 IPC,
which are non-cognizable offences whereas
in the instant case, the applicants have been
charged with the offences under Sections
504 and 506 IPC, one of which, i.e. the
offence under Section 506 is a cognizable
offence.

16. It is expressly provided in SubSection 4 of Section 155 Code of Criminal
Procedure that

"Where a case relates to two or
more offences of which at least one is
cognizable, the case shall be deemed to be
a cognizable case, notwithstanding that the
other offences are non-cognizable."

17. In view of the aforesaid
provisions of law, since the accused had
been charged under Sections 504 and 506
IPC, they have to be tried for both the
offences in the manner prescribed for trial
of cognizable offences.

18. Therefore, the application lacks
merit and it is accordingly rejected.
----------
(2023) 8 ILRA 44
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.07.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Application U/S 482 No. 41434 of 2022

Mohd. Yunus Malik ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Anwar Hussain

Counsel for the Opposite Parties:
G.A., Sri Pawan Kumar Shukla, Sri Manish
Trivedi

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - The Negotiable Instruments Act,
1881 - Section 138 - Dishonour of
cheque for insufficiency, etc., of funds in
the account, Section 142 - Cognizance of
offences , Section 146 - Bank's slip
prima facie evidence of certain facts - In
case cheque return memo is not having
signature and stamp of the bank, but it
is validly issued by the bank, that would
not render the proceeding of Section
138
of
Act,
1881
as
invalid
or
illegal.(Para-13,14)

Complaint case was filed by opposite party no.2
under Section 142 - ground - bouncing of
cheque - no official mark, signature and seal of
the Bank - in absence of seal or signature, letter
cannot be treated valid document - cognizance
order passed - bad and liable to quashed -
hence application. (Para-3)

HELD:-Letter is not forged document and
cheque was produced before the Bank and
dishonoured due to insufficient fund, therefore,
requirement of Section 146 of Act is fulfilled .
Unsigned letter so issued by the Bank cannot be
ground for rejecting the proceedings under
Section 138 of Act, 1881. (Para -11)