# Rakesh Kumar Shukla v. State of U.P. & Anr

- **Citation:** (2022) 1 ILRA 314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-03
- **Case number:** Application U/S 482 Cr.P.C. No.2955 of 2007
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-shukla-v-state-of-u-p-anr-47683
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 307, 504 , 506 - Section 155(4)
Cr.P.C - 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
noncognizable.(Para - 16)

Informant/respondent no.2 filed an application
under Section 156 (3) Cr.P.C. against the
accused-applicant - applicant had fired at him
with the intention to kill him - charge sheet
forwarded to the court for trial of the applicant.
- applicant charged with offences under
Sections 504 and 506 IPC - one of which, i.e.
the offence under Section 506 is a cognizable
offence.(Para - 2,3,15)

HELD:-Since the accused had been charged
under Sections 504 and 506 IPC, he has to be
tried for both the offences in the manner
prescribed for trial of cognizable offences.(Para
- 17)

Application u/s 482 Cr.P.C. rejected. (E-7)
1 All. Rakesh Kumar Shukla Vs. State of U.P. & Anr.
315
List of Cases cited:-

## Text

314 INDIAN LAW REPORTS ALLAHABAD SERIES
raising similar issues, as raised in the
present petition was, allowed and the
demand of current rates made by the
respondents was held to be unsustainable.
However, the Hon'ble Apex Court in
Special Leave to Appeal (C) No.487 of
2018 (U.P. Avas Evam Vikas Parishad &
others Vs. Raghuvir Singh (D) through
L.R.s & others) preferred by the Parishad
against the decision dated 06.10.2017
passed in Writ Petition (C) No.64373 of
2008, vide its order dated 11.01.2018,
modified the order of the High Court to the
effect that the rate at which the plot may be
allotted, will be the current rate.

9. In such view of the matter, the
contention of the petitioners that the
demand of the Parishad for current rates is
unjustified
cannot be
sustained.
The
petitioners are liable to pay the current rates
as applicable towards the allotment of the
plots in their favour. As regards the
allotment of the "Small Commercial Plots"
of 25-50 sq. meter area to the petitioners, it
is expected from the Respondent Avas
Evam Vikas Parishad that the allotment
process may be finalized at the earliest
considering the delay that has already
occurred.

10. With the aforesaid observations,
the writ petition is dismissed.

Order on Correction Application.

The application is allowed.

The word 'Pritinder' in the signature
clause of the judgement dated 3.12.2021
stands substituted by the word 'Pritinker'.

This order shall be treated as part of
the
judgement
dated
3.12.2021
and
certified copy of this order shall be issued
along with copy of judgement dated
3.12.2021.
----------
(2022)01ILR A314
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.12.2021
BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 Cr.P.C. No.2955 of 2007

Rakesh Kumar Shukla ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ashok Kumar Dwivedi

Counsel for the Opposite Parties:
A.G.A.,Sri U.B. Singh, Sri V.B. Rao

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 307, 504 , 506 - Section 155(4)
Cr.P.C - 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
noncognizable.(Para - 16)

Informant/respondent no.2 filed an application
under Section 156 (3) Cr.P.C. against the
accused-applicant - applicant had fired at him
with the intention to kill him - charge sheet
forwarded to the court for trial of the applicant.
- applicant charged with offences under
Sections 504 and 506 IPC - one of which, i.e.
the offence under Section 506 is a cognizable
offence.(Para - 2,3,15)

HELD:-Since the accused had been charged
under Sections 504 and 506 IPC, he has to be
tried for both the offences in the manner
prescribed for trial of cognizable offences.(Para
- 17)

Application u/s 482 Cr.P.C. rejected. (E-7)
1 All. Rakesh Kumar Shukla Vs. State of U.P. & Anr.
315
List of Cases cited:-

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

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

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

1. Heard Sri. Ashok Kumar Dwivedi,
learned Counsel for the Applicant and
learned AGA for the State-respondents.

2. By means of the present application
under Section 482 of
the
Criminal
Procedure Code the applicant has prayed
for quashing of the charge sheet dated
18.01.2007 in Criminal Case No. 305 of
2007 (State vs. Rakesh Kumar Shukla)
under Sections 504 and 506 IPC, Police
Station Kotwali Nagar, District Banda,
pending in the Court of Chief Judicial
Magistrate,
Banda,
which
has
been
instituted by an application under Section
156 (3) Cr.P.C., filed on 25-11-2006 by the
opposite party number 2.

3. The accused-applicant and the
informant-opposite
party
no.2
are
neighbors. The applicant lives in House
No. B-81 whereas the informant lives in
House No. B-82, Awas Vikas Colony, P.S.
Kotwali,
District-Banda.
The
informant/respondent no.2 had filed an
application under Section 156 (3) Cr.P.C.
against the applicant alleging that the
applicant had fired at him with the intention
to kill him and when several persons from
the locality gathered there, he went away
threatening to kill the informant. In
furtherance of the aforesaid application, a
First Information Report was lodged. The
applicant
had
filed
Criminal
Misc.
Application No. 15344 of 2006 and on
27.11.2006, this Court passed the
following order:

"Heard Sri R.R.Singh, counsel for
the applicant and A.G.A.

Having heard the submissions
and perusing the materials on record, this
application is finally disposed of with the
direction that pursuant to the impugned
order dated 19.10.2006 passed by C.J.M.,
Banda on the application of opposite party
no.2 under Section 156 (3) Cr.P.C., if any
case has been registered against the
applicant at P.S. registered against the
applicant at P.S. Kotwali, district-Banda,
then investigation in the matter may go on,
but the applicant shall not be arrested till
submission of the report under Section
173(2), Cr.P.C. provided he cooperates
with the investigation."

4. An investigation was carried out
pursuant
to
the
aforesaid
FIR
and
statements of six witnesses were recorded.
After completion of investigation, the
police has submitted the charge sheet no.
11/2007 on 18.11.2007 stating that upon
investigation, from the statements of the
witnesses and inspection of the site of
occurrence, commission of the offence
under Section 307 IPC was not found and
merely offences under Sections 504 and
506 IPC was found to have been
committed. The charge sheet has been
forwarded to the court for trial of the
applicant.

5. Sri Ashok Kumar Dwivedi, learned
counsel for the applicant has argued that
although originally the first information
report was lodged under Sections 307, 504,
506 IPC but during investigation, the
allegation of commission of offence under
316 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 307 IPC was found to be false and
only a case under Sections 504 and 506
IPC was found to be made out against the
applicant,
both
of
which
are
noncognizable offences and, therefore, the case
against the applicant 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. Ashok Kumar Dwivedi has placed
reliance on a judgment of this Court in Dr.
Rakesh Kumar Sharma vs. State of U.P.
and another reported in 2007 (9) ADJ 478,
in which case originally the FIR was lodged
under
Section
307.
However,
after
investigation the Investigating Officer came
to the conclusion that no offence under
Section 307 IPC was made out and only a
case under Section 504 IPC was made out
against the accused and so a charge sheet
under Section 504 IPC was submitted against
the applicant. 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 non-cognizable 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 All. Rakesh Kumar Shukla Vs. State of U.P. & Anr.
317

(1) The State Government may,
by notification4 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, declare4
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
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
318 INDIAN LAW REPORTS ALLAHABAD SERIES
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,
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 :
1 All. Ravi & Ors. Vs. State of U.P. & Ors.
319

"10 Power of Local Government to
make certain offences cognizable and nonbailable.-(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 nonbailable."

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 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 applicant/accused has
been charged with commission of noncognizable offences only based on the decision
in Dr. Rakesh Kumar Sharma (Supra), is
misconceived as in that case, the accused had
been charged only with offence under Section
504 IPC, which is a non-cognizable offence
whereas in the instant case, the applicant has
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, he has 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.
----------
(2022)01ILR A319
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.12.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No. 5009 of 2021

Ravi & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties