# Rajiv Kaushik v. State of U.P. & Anr

- **Citation:** (2020) 6 ILRA 122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-01-25
- **Case number:** Application U/S 482 No. 5642 of 2020
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajiv-kaushik-v-state-of-u-p-anr-45763
- **Pages:** 6

## Headnote

Criminal Law - Criminal Procedure Code
(2 of 1974)- Section 2 (d) - Indian Penal
Code (45 of 1860) - Section 506 -
Punishment
for
criminal
intimidation
-
Notification dated 31.07.1989 passed by U.P.
State Govt. under S.10 of Criminal Law
Amendment Act, 1932 made offence under
S.506 of Penal Code as cognizable and non
bailable - provisions of Section 2 (d) of CrPC do
not apply - Magistrate rightly treated it as a
State /police case.

Application dismissed (E-5)

List of case cited :

1.Raj Kapoor @ Lallu Vs St. of U.P. & anr.
(2017) 1 JIC 322

2.MataSevakUpadhyaya & anr. Vs St. of U.P. &
ors. (1995) JIC 1168 Alld

4.Virendra Singh Vs St. of U.P. & ors (2002) 45
ACC 609

4.Parveen Kumar & ors. Vs St. of U.P. & anr.
ADJ (2011) 5 418

## Text

122 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted under Sections 323 and 504
I.P.C. and both the offences are bailable and
non-cognizable as per 1st Schedule of
Cr.P.C. and accordingly, the provisions of
Explanation to Section 2(d) of Cr.P.C., the
charge-sheet6 filed before the Magistrate is
to be treated as complainant and so the
order of Magistrate taking cognizance
dated 25.01.2019 is liable to be quashed.

4. Per contra, learned A.G.A. though
did not dispute the legal position provided
in Section 2(d) of Cr.P.C. but contended
that the application under Section 482
Cr.P.C. for quashing the proceedings of
criminal case is malafide and misconceived
and is liable to be dismissed.

5. Before proceeding further, the
relevant provisions of Section 2 (d) of
Cr.P.C. are being reproduced for ready
reference as under:-

"Section
2(d)
of
Code
of
Criminal
Procedure,
1973

2. Definitions.--In this Code, unless
the context otherwise requires,--

(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. Upon hearing learned counsel for
the parties and perusal of record, I find
that it may
not be disputed that offences under
Sections 323 & 504 I.P.C. are bailable
and non-cognizable and so the provisions
of explanation to Section 2(d) are
applicable to the case. The Magistrate has
taken cognizance without considering the
provisions of Section 2(d) Cr.P.C. and its
explanation clause. Undoubtedly in view
of the provisions of Section 2(d) Cr.P.C.,
the Magistrate was required to adopt the
procedure
of
a
complaint
case
as
provided.

7. In view of the discussions made
above, this Court came to the conclusion
that impugned order of cognizance and
summoning order dated 25.01.2019 upon
charge-sheet in a case arising out of NCR
in respect of bailable and non-cognizable
offences is wrong and incorrect and is
liable to be quashed.

8. The application is allowed
accordingly and the impugned order
dated 25.01.2019 is quashed with a
direction
to
learned
Magistrate
for
passing appropriate order in accordance
with law as well as provisions of
explanation to Section 2(d) Cr.P.C.

9. Let a copy of this order be sent to
court below for proceeding with the case
in accordance with law.
----------

(2020)06ILR A122
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2020

BEFORE
THE HON'BLE AJIT SINGH, J.

Application U/S 482 No. 5642 of 2020
6 All. Rajiv Kaushik Vs. State of U.P. & Anr.
123
Rajiv Kaushik ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Abhishek

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

Criminal Law - Criminal Procedure Code
(2 of 1974)- Section 2 (d) - Indian Penal
Code (45 of 1860) - Section 506 -
Punishment
for
criminal
intimidation
-
Notification dated 31.07.1989 passed by U.P.
State Govt. under S.10 of Criminal Law
Amendment Act, 1932 made offence under
S.506 of Penal Code as cognizable and non
bailable - provisions of Section 2 (d) of CrPC do
not apply - Magistrate rightly treated it as a
State /police case.

Application dismissed (E-5)

List of case cited :

1.Raj Kapoor @ Lallu Vs St. of U.P. & anr.
(2017) 1 JIC 322

2.MataSevakUpadhyaya & anr. Vs St. of U.P. &
ors. (1995) JIC 1168 Alld

4.Virendra Singh Vs St. of U.P. & ors (2002) 45
ACC 609

4.Parveen Kumar & ors. Vs St. of U.P. & anr.
ADJ (2011) 5 418

(Delivered by Hon'ble Ajit Singh, J.)

1. Heard learned counsel for the
applicant and learned A.G.A.

2. The present application under
Section 482 Cr.P.C. has been filed for
quashing the order dated 21.10.2019 passed
by the learned Addl. Chief Judicial
Magistrate, Court No. 5, Meerut in Case
No. 25579 of 2018 (State Vs. Rajiv
Kaushik), arising out of Case Crime No.
0249 of 2018, under Sections 323, 506 of
IPC, PS Civil Lines, District Meerut along
with entire proceedings.

3. By the impugned order dated
21.10.2019 the application moved by the
accused applicant in relation to Section 2
(d) has been rejected by the learned Trial
Court.

4. The learned counsel for accused
applicant submits that the offences as
alleged are non conginzable and therefore
neither the charge sheet could have been
submitted by the Investigating Officer nor
the learned Magistrate could have taken
cognizance in view of Section 2(d) of
Cr.P.c. and it was further submitted that
only course open to the learned Magistrate
was to have treated it as a complaint case
and, accordingly, ought to have proceeded
with in accordance with law.

5. On the other hand, the learned
AGA appearing for the State submits that
the impugned order passed by the learned
Magistrate is perfectly valid and correct as
it was passed in consonance with the ratio
of the judgments passed by this Court in
Raj Kapoor @ Lallu Vs. State of U.P.
and another, 2017 (1) JIC 322, Allahabad
and others and has further contended that
the relief sought by means of this
application under Section 482 Cr.P.C. for
quashing of the impugned order is
malafide, misconceived and the application
is liable to be dismissed.

6. In this matter it is necessary to have
a glance on Section 2 (d) of Cr.P.C.,
therefore, the relevant provisions of the
same are being reproduced below:-

Section 2(d) of Code of Criminal
Procedure, 1973
124 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Definitions. - In this Code,
unless the context otherwise requires, -

(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-cognisable 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."

7. It is settled position of law that the
offences under Sections 323 and 504 of
IPC are bailable and non-cognizable.
Therefore, the Explanation to Section 2 (d)
is applicable. The offence under Section
323 of IPC is bailable and non cognizable
and Section 506 is cognizable and non
bailable and not compoundable. So the
provisions of Explanation to Section 2 (d)
are not applicable to the present case.
Offence under Section 506 IPC has been
made non bailable and congnizable vide
Notification 777/VIII 9-4 (2)87 dated
31.07.1989 published in Gazette, Extra, PtA Section (Kha) dated 2nd August, 1989
and the provisions of Section 2 (d) of
Cr.P.C. do not apply to the present case.

8. In the case of Mata Sevak
Upadhyaya and another Vs. State of U.P.
and others, 1995 JIC 1168 (Alld.) wherein the
validity of the above provisions was upheld
observing that the above notification still holds
good and has not been deleted or withdrawn in
pursuance of the Division Bench judgment in
the case of Virendra Singh Vs. State of U.P.
and others, 2002 (45) ACC 609.

9. Having heard the arguments
advanced by learned counsel for the parties
and also having gone through the record of
the case, the controversy involved in this
case has to be decided taking into
consideration
the
relevant
statutory
provisions of Section 10 of Criminal Law
Amendment Act, 1932, Section 506 of
I.P.C., as also relevant part of Ist Schedule
of Cr.P.C. relating to the offence under
Section 506 IPC with State Amendment, as
well as the provisions of Section 2 (d) of
Cr.P.C. are being reproduced for ready
reference as under:-

"Section 10 of Criminal Law
Amendment Act, 1932:-

Section
10
Power
of
State
Government to make certain offences,
cognizable and non-cognizable.

(1) The State Government may, by
notification in the official Gazette, declare
that any offence punishable under Sections
186, 188, 189, 190, 228, 295A, 298, 505,
506 or 507 of the Indian Penal Code, 1860,
when committed in any area specified in the
Notification shall notwithstanding anything
contained in the Code of 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 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, 1860, shall be non-bailable.

Section 506 of Indian Penal
Code:-

"506. Punishment for criminal
intimidation.--Whoever
commits,
the
offence of criminal intimidation shall be
punished with imprisonment of either
6 All. Rajiv Kaushik Vs. State of U.P. & Anr.
125
description for a term which may extend to
two years, or with fine, or with both;

If threat be to cause death or
grievous hurt, etc.--And if the threat be to
cause death or grievous hurt, or to cause
the destruction of any property by fire, or to
cause an offence punishable with death or
[imprisonment
for
life]
or
with
imprisonment for a term which may extend
to seven years, or to impute, unchastity to a
woman,
shall
be
punished
with
imprisonment of either description for a
term which may extend to seven years, or
with fine, or with both.

CLASSIFICATION
OF
OFFENCE

Para
I:
Punishment--
Imprisonment for 2 years, or fine, or both--
Non-cognizable -Bailable--Triable by any
Magistrate--Compoundable by the person
intimidated.

Para
II:
Punishable--
Imprisonment for 7 years, or fine, or both--
Non-cognizable--Bailable--Triable
by
Magistrate
of
the
first
class--Noncompoundable.

STATE
AMENDMENT

Uttar Pradesh.-- Imprisonment of
7 years, or fine or both--Cognizable--Nonbailable--Triable by Magistrate of the first
class--Non-compoundable.
Vide
Notification No.777/VIII 9-4(2)--87, dated
31st July, 1989 published in U.P. Gazette,
Extra., Pt. A, Sec. (kha), dated 2nd August,
1989.

Ist
Schedule
of
Code
of
Criminal Procedure, 1973

506 Criminal
Intimidati
on
Imprisonme
nt
for
2
years or
Noncogniz
able
Bailable Any
Mag
istra
Fine,
or
both.

te

If
threat
be
to
cause
death
or
grievous
hurt etc.
Imprisonme
nt
for
7
years or
Fine,
or
both.
Noncogniz
able
Bailable Mag
istra
te of
first
class

STATE
AMENDMENT

Andhra Pradesh:

Offences under section 506 are
cognizable and non-bailable.

[Vide A.P.G.O. Ms. No.732, dated
5th December, 1991.]

Uttar Pradesh:

The offence under section 506 are
cognizable
and
non-
bailable.
[Vide
Notification No.777/VIII 9-4(2)-87, dated
31st July, 1989, published in U.P. Gazette,
Extra., Part A, Section (Kha), dated 2nd
August, 1989.]

Section 2(d) of Code of Criminal
Procedure, 1973

2. Definitions.--In this Code,
unless the context otherwise requires,--

(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."

10. Regard being had to the aforesaid
statutory provisions, this Court finds that
though in the Ist Schedule of Cr.P.C. , the
offence under Section 506 I.P.C. is
126 INDIAN LAW REPORTS ALLAHABAD SERIES
described as non-cognizable and bailable
but by virtue of Section 10 of Criminal
Law Amendment Act, 1932 the same was
made cognizable and non-bailable in U.P.
by the U.P. Government Notification
no.777/VIII-9-4(2)87 dated
31.07.1989.
Section
10
of
the
Criminal
Law
Amendment Act, 1932 gives power to the
State
Government
to
declare
certain
offences including offences under Section
506 IPC to be cognizable and non-bailable
and it provided that on issuance of such
notification
the
Code
of
Criminal
Procedure, 1898 shall stand amended
accordingly.

11. The Full Bench of this Court has
considered the legality and validity of
this notification in the case of Mata
Sewak Upadhyay and another versus
State of U.P. and others (supra) and it
has been laid down by the Full Bench that
Criminal Law Amendment Act, 1932 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. It was further held by the
Full Bench that applying the rule of
construction as laid down in Section 8 of
the General Clauses Act, it becomes clear
that the notification issued u/s 10 with
reference to Cr.P.C. 1998 should be read
as having been issued with reference to
the Cr.P.C. 1973 and that the law has to
be construed in such a fashion as to make
it workable and enforceable, than to make
it redundant. It was also held by the Full
Bench of this Court that Section 10 of the
Criminal Law Amendment Act, 1932 and
Government Notification no.777/VIII-94
(2)-87 dated 2.8.1998 making Section
506 I.P.C. cognizable and non-bailable
offence are valid.

12. Again an occasion arose for
consideration of the above matter before
this Court and this Court in the case of
Parveen Kumar and others Vs. State of
U.P. and another, ADJ 2011 (5) 418,
wherein it was observed that since the Full
Bench decision of this Court in Mata
Sevak Upadhyaya and another Vs. State
of U.P. and others (supra) has not been
overruled or the learned counsel for the
applicant has not stated that above decision
has been set aside by the Apex Court, so
the decision of Division Bench in Virendra
Singh Vs. State of U.P. and others (supra)
case cannot given effect.

13. From a perusal of judgment of
Virendra Singh Vs. State of U.P. and
others (supra) case, it is clear that the Full
Bench decision of this Court in the case of
Mata Sevak Upadhyaya and another Vs.
State of U.P. and others (supra) was not
brought before the Division Bench and, it
was neither considered nor discussed nor
distinguished by the Division Bench.

14. In the result, I am of the
considered view that offence under Section
506 I.P.C. may not be treated as noncognizable as per submissions made by the
learned counsel for the applicant and since
the offence under Section 506 I.P.C. has
been made, cognizable, non-bailable and
non-compoundable vide above mentioned
notification in the State of U.P., the
provisions of Section 2 (d) of Cr.P.C. do not
apply to the present case and so the
impugned
order
dated
29.6.2015
of
cognizance passed by Judicial Magistrate
may not be considered to be wrong and
illegal and is not liable to be quashed.

15. In view of the discussions made
above, I find that the applicant has failed to
show that in view of decision in Virendra
6 All. Hemlata & Ors. Vs. State of U.P. & Anr.
127
Singh' s case (supra) or provisions of
Section 2 (d) of Cr.P.C., the impugned
order of cognizance dated 21.10.2019
passed upon submission of charge-sheet
under Sections 323 and 506 of IPC is
perfectly valid and no abuse of process of
law is evident or apparent from the
impugned order. It does not require the
exercise of inherent power by this Court for
securing
the
ends
of
justice.
The
application is devoid of merits and is liable
to be dismissed.

16. The application under Section 482
Cr.P.C. is dismissed accordingly.

17. However, if the applicant appears
before the Court below and moves
application for bail, the same shall be
disposed of expeditiously, in accordance
with law.
----------
(2020)06ILR A127
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.02.2020

BEFORE
THE HON'BLE SANJAY KUMAR SINGH, J.

Application U/S 482 No. 6974 of 2020

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

Counsel for the Applicant:
Sri Swati Agarwal Srivastava

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

Criminal Law - Criminal procedure Code (2
of 1974) - Section 482 - Indian Penal
Code (45 of 1860)- Section 323- Section
328 - Section 376 - Section 120B -
Quashing of proceedings - Compromise in
Sexual Offence - Impermissible - Sexual
offences constitute an altogether different class
of crime which is the result of a perverse mind -
these crimes cannot be treated at par with
matrimonial offence - Allowing quashing of
charge-sheet, pursuant to a compromise, will, in
such cases, only embolden the perpetrators of
such
crimes
&
would
only
encourage
commission of such offences, as the accused,
using his money power or otherwise, may be
able to induce the prosecutrix/victim to enter in
to settlement with him and then seek quashing
of criminal proceedings, on the strength of that
settlement. (Para 14)

Application dismissed (E-5)

List of case cited :

1.St. of M.P. Vs Yogendra Singh Jadon & anr
passed in Cri. Appeal No. 175 of 2020 dt
31.01.2020

2. Rajeev Kourav Vs Baisahab & ors. Cri. Appeal
No. 232 of 2020 dt 11.02.2020

3.St. of M.P. Vs Laxmi Narayan & ors. AIR
(2019) SC 1296

4.ParbatbhaiAahir Vs St. of Gujarat (2017) 9
SCC 641

5.Ramphal Vs St. of Har. AIR Online (2019) SC
1716

6.Arun Singh & ors. Vs St. of U.P. through its
Secretary & anr. Cri. Appeal No. 250 of 2020 dt
10.02.2020

7.Bodhi Sattwa Gautam Vs Subhra Chakraborty
AIR (1996) SC 922

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1. Heard Mrs. Swati Agrawal
Srivastava,
learned
counsel
for
the
applicants, Sri Rabindra Kumar Singh,
learned Additional Government Advocate
assisted by Sri Prashant Kumar Singh,
learned Brief Holder for the State/opposite