# Vinay Kumar Pandey v. State of U.P. & Ors

- **Citation:** (2024) 10 ILRA 789
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-03
- **Case number:** Criminal Misc. Writ Petition No. 13827 of 2024
- **Bench:** Vivek Kumar Birla, Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-kumar-pandey-v-state-of-u-p-ors-54649
- **Pages:** 9

## Headnote

Law
-
Constitution
of
India,1950 - Article 226, 246(2) & 254(2)
- Bhartiya Nagarik Suraksha Sanhita, 2023
- Sections 173, 174 & 174(2) - Bhartiya
Nyaya Sanhita, 2023 - Section 351(2), -
Criminal Law (Amendment) Act, 1932 -
Section 10 - Indian Penal Code, 1860 -
Section - 506 - Writ Petition - Validity of FIR -
petitioner argued that Section 351(2) of the
B.N.S., corresponding to Section 506 IPC,
constitutes a non-cognizable offence under
the B.N.S.S., consequently, only a NonCognizable Report (N.C.R.) can be registered
under
Section
174
B.N.S.S.,
and
any
investigation requires prior approval from a
Magistrate under Section 174(2) B.N.S.S -
cognizability in U.P. - the court held that St.
Notification dated 31.07.1989 made Section
506 IPC cognizable - Section 531(2)(b)
B.N.S.S. preserves this, ensuring Section
351(2) B.N.S. remains cognizable - Legal
Interpretation - Articles 246(2) and 254(2) of
the Constitution permit St. amendments, and
the Criminal Law (Amendment) Act, 1932,
already authorizes such modifications. (Para -
14, 15, 16, 19)

(B)
Criminal
Law
-
Constitution
of
India,1950 - Article 226, 246(2) & 254(2)
- Bhartiya Nagarik Suraksha Sanhita, 2023
- Sections 73, 174 & 174(2) - Bhartiya
Nyaya Sanhita, 2023 - Section - 351(2), -
Criminal Law (Amendment) Act, 1932 -
Section 10, - Indian Penal Code, 1860 -
Section - 506 - Writ Petition - Validity of FIR
- allegation of Mala-fide FIR - the petitioner
argues that the FIR was lodged to cancel
anticipatory bail in Case Crime No. 102 of 2024
- court finds that, multiple civil and criminal
disputes exist between the petitioner and the
informant - the FIR lacks specific details (date,
place, time of incident), raising concerns of
malicious intent - hence, - notice issued to
respondent No.5. - A.G.A. granted three weeks
to file a counter affidavit - Petitioner granted
two weeks to file a rejoinder affidavit - Next
hearing scheduled for the week commencing
11.11.2024 - No coercive action against the
petitioner until the next hearing. (Para - 20, 21,
22, 23, 25)

Writ Petition Pending. (E-11)

List of Cases cited:

## Text

10 All. Vinay Kumar Pandey Vs. State of U.P. & Ors.
789
(2024) 10 ILRA 789
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.10.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Misc. Writ Petition No. 13827 of 2024

Vinay Kumar Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Dheeraj Kumar Pandey, Mukesh Kumar
Pandey

Counsel for the Respondents:
G.A., Anand Kumar Singh

(A)
Criminal
Law
-
Constitution
of
India,1950 - Article 226, 246(2) & 254(2)
- Bhartiya Nagarik Suraksha Sanhita, 2023
- Sections 173, 174 & 174(2) - Bhartiya
Nyaya Sanhita, 2023 - Section 351(2), -
Criminal Law (Amendment) Act, 1932 -
Section 10 - Indian Penal Code, 1860 -
Section - 506 - Writ Petition - Validity of FIR -
petitioner argued that Section 351(2) of the
B.N.S., corresponding to Section 506 IPC,
constitutes a non-cognizable offence under
the B.N.S.S., consequently, only a NonCognizable Report (N.C.R.) can be registered
under
Section
174
B.N.S.S.,
and
any
investigation requires prior approval from a
Magistrate under Section 174(2) B.N.S.S -
cognizability in U.P. - the court held that St.
Notification dated 31.07.1989 made Section
506 IPC cognizable - Section 531(2)(b)
B.N.S.S. preserves this, ensuring Section
351(2) B.N.S. remains cognizable - Legal
Interpretation - Articles 246(2) and 254(2) of
the Constitution permit St. amendments, and
the Criminal Law (Amendment) Act, 1932,
already authorizes such modifications. (Para -
14, 15, 16, 19)

(B)
Criminal
Law
-
Constitution
of
India,1950 - Article 226, 246(2) & 254(2)
- Bhartiya Nagarik Suraksha Sanhita, 2023
- Sections 73, 174 & 174(2) - Bhartiya
Nyaya Sanhita, 2023 - Section - 351(2), -
Criminal Law (Amendment) Act, 1932 -
Section 10, - Indian Penal Code, 1860 -
Section - 506 - Writ Petition - Validity of FIR
- allegation of Mala-fide FIR - the petitioner
argues that the FIR was lodged to cancel
anticipatory bail in Case Crime No. 102 of 2024
- court finds that, multiple civil and criminal
disputes exist between the petitioner and the
informant - the FIR lacks specific details (date,
place, time of incident), raising concerns of
malicious intent - hence, - notice issued to
respondent No.5. - A.G.A. granted three weeks
to file a counter affidavit - Petitioner granted
two weeks to file a rejoinder affidavit - Next
hearing scheduled for the week commencing
11.11.2024 - No coercive action against the
petitioner until the next hearing. (Para - 20, 21,
22, 23, 25)

Writ Petition Pending. (E-11)

List of Cases cited:

1. St. of Haryana & ors. Vs Bhajan Lal & ors.,
1992 Supp. (1) SCC 335,

2. Aires Rodrigues Vs Vishwajeet P. Rane & ors.;
(2017) 11 SCC 62,

3. Rakesh & ors. Vs St. of U.P.; Application u/s
482
No.
23628
of
2021,
delivered
on
29.11.2021,

4. Mata Sevak Upadhyay Vs St. of U.P.; Criminal
Misc. Writ Petition No. 7215 of 1994,

5. Arnold Rodricks & anr. Vs St. of Mah. & ors.;
AIR 1966 SC 1788

6. Vinod Rao Vs St. of Guj.; 1980 SCC OnLine
Guj 86.

7. Harishankar Bagla & anr. Vs St. of M.P.;
(1954) 1 SCC 978.

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
790 INDIAN LAW REPORTS ALLAHABAD SERIES
Hon'ble Arun Kumar Singh Deshwal, J.)

1. Heard Sri Mukesh Kumar Pandey,
learned counsel for the petitioner, Sri
Anand Kumar Singh, learned counsel for
the respondents and Sri Pankaj Saxena,
learned AGA for the State.

2. The present petition has been filed
with the following prayers:-

"a) to issue a writ, order or
direction in the nature of certiorari
quashing the order dated 08.07.2024
passed by Additional Police Commissioner
Commissionerate Ganga Par P.S. Tharwai
Prayagraj (Respondent no. 3).

b) to issue a writ, order or
direction in the nature of certiorari
quashing the impugned First Information
Report dated 12.07.2024 registered as
F.I.R. No. 196 of 2024, under Section
351(2) of the Bharatiya Nyaya Sanhita,
2023,
Police
Station-
Tharwai,
Commissionerate Prayagraj."

3. Learned counsel for the petitioner at
the very outset submits that he is not
pressing prayer no.'a' and he confines his
argument for the prayer no.'b' only.

4. Learned counsel for the petitioner
submits that the impugned F.I.R. is bad in
the eyes of law because Section 351(2) of
the
Bharatiya
Nyaya
Sanhita,
2023
(hereinafter
referred
to
as
"B.N.S.")
(corresponding to Section 506 I.P.C.) is
non-cognizable offence as per the first
Schedule
of
the
Bharatiya
Nagarik
Suraksha
Sanhita,
2023
(hereinafter
referred to as "B.N.S.S.") for which only an
N.C.R., under Section 174 B.N.S.S., can be
registered
and
investigation
of
noncognizable offence cannot be conducted
without the permission of Magistrate under
Section 174(2) B.N.S.S.

5. It is further submitted by learned
counsel for the petitioner that several civil
and criminal disputes are pending between
the petitioner and the first informant and
the impugned F.I.R. is mala fide which has
been lodged just to make out a ground to
cancel the anticipatory bail of the petitioner
in Case Crime No. 102 of 2024, under
Sections 147, 148, 149, 323, 325, 504, 506,
392 I.P.C. which was also lodged by the
present first informant. It is lastly by
learned counsel for the petitioner that the
impugned F.I.R. deserves to be quashed as
the same is barred by Section 174(2)
B.N.S.S. In support of his contention,
learned counsel for the petitioner has also
relied upon the judgement of the Apex
Court in the case of State of Haryana and
others vs. Bhajan Lal and others, 1992
Supp. (1) SCC 335 in which it is observed
that if from the perusal of the F.I.R. no
cognizable offence is made out then the
F.I.R. deserves to be quashed.

6. Per contra, learned A.G.A. has
submitted that though in the first Schedule
of B.N.S.S. Section 351(2) B.N.S. is noncognizable
offence,
but
in
the
corresponding Section 506 I.P.C., the State
Government in exercise of its power under
Section
10
of
the
Criminal
Law
(Amendment) Act, 1932 has issued a
notification
dated
31.7.1989,
making
Section 506 I.P.C. a cognizable offence.
Therefore, in view of Section 531(2)(b) of
B.N.S.S., such amendment in Section 506
I.P.C. is saved and the same will continue
to be cognizable offence in view of the
State
amendment.
Therefore,
Section
351(2) B.N.S. is cognizable offence in the
State of U.P. in view of the State
notification dated 31.7.1989. In support of
10 All. Vinay Kumar Pandey Vs. State of U.P. & Ors.
791
his contention, learned A.G.A. has relied
upon the judgement of the Apex Court in
the case of Aires Rodrigues vs. Vishwajeet
P. Rane and others; (2017) 11 SCC 62 as
well as judgement of Single Bench of this
High Court in the case of Rakesh and
others vs. State of U.P.; Application u/s
482 No. 23628 of 2021, delivered on
29.11.2021.

7. After hearing learned counsel for
the parties two questions have arisen for
determination (i) whether Section 351(2)
B.N.S. is a cognizable offence in U.P., in
view of the notification dated 31.7.1989
and the impugned F.I.R. was correctly
lodged under Section 173 B.N.S.S. instead
of Section 174 B.N.S.S. and; (ii) whether
the impugned F.I.R. suffers from mala fide
as civil and criminal proceedings have been
pending between the parties.

8. For deciding first question, it would
be relevant to consider Section 531
B.N.S.S. which saves the notification
issued
under
Cr.P.C.
even
after
enforcement of B.N.S.S.; Section 8 of the
General Clauses Act which prescribes the
construction of references in any enactment
regarding the repealed Act as well as
Section
10
of
the
Criminal
Law
(Amendment) Act, 1932, which permits the
State legislature to amend the Cr.P.C.
Section 531 B.N.S.S., Section 8 of General
Clauses Act and Section 10 of Criminal
Law (Amendment) Act 1932 are being
quoted as under:-

" Section 531 of B.N.S.S.:-
Repeal and savings.-

(1)
The
Code
of
Criminal
Procedure, 1973 (2 of 1974) is hereby
repealed.

(2) Notwithstanding such repeal?

(a) if, immediately before the date
on which this Sanhita comes into force,
there is any appeal, application, trial,
inquiry or investigation pending, then, such
appeal, application, trial, inquiry or
investigation
shall
be
disposed
of,
continued, held or made, as the case may
be, in accordance with the provisions of the
Code of Criminal Procedure, 1973 (2 of
1974), as in force immediately before such
commencement (hereinafter referred to as
the said Code), as if this Sanhita had not
come into force;

(b) all notifications published,
proclamations issued, powers conferred,
forms provided by rules, local jurisdictions
defined, sentences passed and orders, rules
and appointments, not being appointments
as Special Magistrates, made under the
said Code and which are in force
immediately before the commencement of
this Sanhita, shall be deemed, respectively,
to have been published, issued, conferred,
specified, defined, passed or made under
the corresponding provisions of this
Sanhita;

(c) any sanction accorded or
consent given under the said Code in
pursuance of which no proceeding was
commenced under that Code, shall be
deemed to have been accorded or given
under the corresponding provisions of this
Sanhita
and
proceedings
may
be
commenced
under
this
Sanhita
in
pursuance of such sanction or consent.

(3) Where the period specified for
an application or other proceeding under
the said Code had expired on or before the
commencement of this Sanhita, nothing in
this Sanhita shall be construed as enabling
any such application to be made or
proceeding to be commenced under this
Sanhita by reason only of the fact that a
longer period therefor is specified by this
792 INDIAN LAW REPORTS ALLAHABAD SERIES
Sanhita or provisions are made in this
Sanhita for the extension of time.

Section 8 of General Clauses
Act:-
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 reenacts, 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.

Section 10 of the Criminal Law
(Amendment)
Act:-
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 sections
186, 188, 189, 190, 228, 295-A, 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 (5 of
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."

9. From the perusal of Section 531(2)
of B.N.S.S., it is clear that the notification
issued under the Code of Criminal
Procedure, 1973, which was in force
immediately before commencement of
B.N.S.S., shall be deemed to be issued
under the corresponding provision of
B.N.S.S.

10. Similarly, as per Section 8 of the
General Clauses Act, 1897 on repealing a
Central
Act
which
was
re-enacted,
reference of repealed Act under any
enactment shall be deemed to be reference
to re-enacted law. Therefore, reference of
I.P.C. and Cr.P.C. in Section 10 of the
Criminal Law (Amendment) Act will be
deemed to be reference of B.N.S. and
B.N.S.S. after the repealing of I.P.C. and
Cr.P.C. Therefore, if any amendment is
made by the State Government in exercise
of its power under Section 10 of Criminal
Law (Amendment) Act in I.P.C. and
Cr.P.C., then same amendment will be
deemed to be made in B.N.S. and B.N.S.S.
after repeal of I.P.C. and Cr.P.C.

11. The State of U.P., in exercise of its
power under Section 10 of the Criminal
Law (Amendment) Act, 1932 which is a
central legislation, had issued notification
dated
31.7.1989,
amending
the
First
Schedule of Cr.P.C. and making Section
506 I.P.C., cognizable offence if same is
committed in any of the districts of the
State of U.P. It is relevant to mention here
that Section 10 of the Criminal Law
(Amendment) Act, 1932, which is still in
force, has authorized the State Government
to make certain offences, including offence
10 All. Vinay Kumar Pandey Vs. State of U.P. & Ors.
793
under Section 506 I.P.C., cognizable and
non bailable. Therefore, amendment made
by the State notification dated 31.7.1989 in
Section 506 I.P.C., making it cognizable
and non-bailable shall be deemed to be
notification issued in respect of Section
351(2) B.N.S. For reference the U.P. State
notification dated 31.7.1989 is being
quoted as under:-

"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
India 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."

12. The Apex Court also considered
this issue in the case of Aires Rodrigues
(supra) and held that the amendment made
in Code of Criminal Procedure, 1998 will
be deemed to be amendment made in Code
of Criminal Procedure, 1973 and such
amendment will be saved under Section
484 Cr.P.C., 1973. Paragraph Nos. 8 & 9 of
the Aires Rodrigues (supra) is quoted as
under:-

"8. Section 10 of the Criminal
Law Amendment Act, 1932, under which
the said Notification has been issued, is as
follows:

"10. Power of State Government
to make certain offences cognizable and
non-bailable.-(1) The [State Government] [
Substituted for "Provincial Government" by
A.L.O., 1950] may, by notification in the
[Official Gazette] [ Substituted for "Local
Gazette" by A.O., 1937] , declare that any
offence punishable under Sections 186,
188, 189, 190, 228, 295-A, 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] [
Substituted for "Provincial Government" by
A.L.O., 1950] 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 nonbailable."

There is no dispute that the 1932
Act is a Central legislation and even today
it is operative and power conferred under
Section 10 can be exercised.

9.
In
these
circumstances,
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
794 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

13. This issue again came into
consideration in a full Bench judgement of
Allahabad High Court in the case of Mata
Sevak Upadhyay vs. State of U.P.;
Criminal Misc. Writ Petition No. 7215 of
1994, decided on 8.9.1995. In that case the
full Bench held that Section 10 of the
Criminal Law (Amendment) Act is valid
and the State Government notification
dated 31.7.1989, making Section 506 I.P.C.
cognizable and non-bailable in exercise of
power under Section 10 of the Criminal
Law (Amendment) Act, is also valid. In
this case, the full Bench has relied upon the
judgement of the Apex Court in the case of
Arnold Rodricks and another vs. State of
Maharashtra and others; AIR 1966 SC
1788 as well as a Division Bench
judgement of the Gujarat High Court in the
case of Vinod Rao vs. State of Gujarat;
1980 SCC OnLine Guj 86 and observed in
paragraphs No. 108, 109, 110 of Mata
Sevak Upadhyay (supra) are quoted as
under:-

"108. From this authority, it
follows that to maintain the rule of
flexibility, which is utmost necessary to run
the administration, delegation of some
powers,
which
are
not
essentially
legislative
in
nature,
is
necessary.
Legislature cannot sit every time to make
law to cover all situation arising time to
time, and, therefore, after the essential
legislative policy having been laid down,
the Legislature can leave to the State
Government to make necessary changed in
the interest of smooth administration. The
Legislature has made offence under Section
506, IPC, and has also laid down the
essential procedure for trial thereof. So far
as the cognizability or bailability of that
offence is concerned, the State Government
is empowered to change the schedule under
Section 10 of the Act of 1932 to make the
offence
cognisable
or
non-bailable
depending on the exigencies of the
administration. In view of the rule laid
down in Arnold Rodrick's (supra), the
power conferred on the State Government
to amend the schedule to the CrPC is
permissible. What is amended is not the
offence
which
is
declared
by
the
Legislature in the exercise of essential
legislative power. Amendment by virture of
Section 13 is such which does not override
the essential legislative power.

109. For the reasons Section 10
of the Act of 1932 as well as the
notification of August 2, 1989, both the
held valid.

110. In the premises, Sections 3,
4, 7, 8 and 14 of the Act of 1989 and
Section 10 of the Act of 1932 and
notification No. 777/VIII-9-4 (2) (87),
dated July 31, 1989, published in the U. P.
Gazette (Extraordinary) Part IV, Section
Kha, dated 2nd August, 1989, are held
valid."

14. Code of Criminal Procedure comes
in the List-III (concurrent list). Therefore,
the parliament as well as State Legislature
can amend the same in view of the Article
10 All. Vinay Kumar Pandey Vs. State of U.P. & Ors.
795
246(2) of the Constitution of India which is
quoted as under:-

"Article 246(2)- Notwithstanding
anything in clause (3), Parliament, and,
subject to clause (1), the Legislature of any
State also, have power to make laws with
respect to any of the matters enumerated in
List III in the Seventh Schedule (in this
Constitution referred to as the Concurrent
List?)."

15.
However,
in
case
there
is
repugnancy between the laws, made by the
Parliament and the State Legislature then
such law made by the State Legislature
shall be reserved for consideration of the
President and will prevail in the State only
after getting the assent of the President in
view of the Article 254(2) of the
Constitution of India which is quoted as
under:-

"Article 254(2)- Where a law
made by the Legislature of a State with
respect to one of the matters enumerated in
the Concurrent List contains any provision
repugnant to the provisions of an earlier
law made by Parliament or an existing law
with respect to that matter, then, the law so
made by the Legislature of such State shall,
if it has been reserved for the consideration
of the President and has received his
assent, prevail in that State:

Provided that nothing in this
clause shall prevent Parliament from
enacting at any time any law with respect
to the same matter including a law adding
to, amending, varying or repealing the law
so made by the Legislature of the State."

16. Though the Cr.P.C. is enacted by
the Parliament, which made Section 506
I.P.C. as non-cognizable, but the State by
its notification dated 31.7.1989, made it a
cognizable
offence.
In
normal
circumstances, the matter would have been
sent for consideration of the President and
only after receiving the assent of the
President, the amendment made by the
State would prevail in the State. However,
the Criminal Law (Amendment) Act, 1932
is a central act and this Act itself authorizes
the State Government to make Section 506
I.P.C. as cognizable offence in the First
Schedule
of
the
Code
of
Criminal
Procedure.
Therefore,
there
is
no
requirement for seeking assent of the
President of India for prevailing the same
in the State.

17. This issue was also considered by
the Apex Court in the case of Harishankar
Bagla and another vs. State of Madhya
Pradesh; (1954) 1 SCC 978. In this case,
the issue was if the Act of the Parliament
itself permits to issue an order with an
effect of amending the central Act, then
this amendment will not be deemed to be
made by the State Government but the
same is the legislated declaration of the
central Act. This amendment will have
effect notwithstanding any inconsistency
therewith contained in any other enactment
other than this Act. Paragraph No.21 of
Harishankar Bagla (supra) is quoted as
under:-

"21. Conceding, however, for the
sake of argument that to the extent of a
repugnancy between an order made under
Section 3 and the provisions of an existing
law, to the extent of the repugnancy, the
existing
law
stands
repealed
by
implication, it seems to us that the repeal is
not by any act of the delegate, but the
repeal is by the legislative act of
Parliament itself. By enacting Section 6
Parliament itself has declared that an
order made under Section 3 shall have
796 INDIAN LAW REPORTS ALLAHABAD SERIES
effect notwithstanding any inconsistency in
this order with any enactment other than
this Act. This is not a declaration made by
the delegate but the legislature itself has
declared its will that way in Section 6. The
abrogation or the implied repeal is by force
of the legislative declaration contained in
Section 6 and is not by force of the order
made by the delegate under Section 3. The
power of the delegate is only to make an
order under Section 3. Once the delegate
has made that order its power is exhausted.
Section 6 then steps in wherein Parliament
has declared that as soon as such an order
comes into being that will have effect
notwithstanding
any
inconsistency
therewith contained in any enactment other
than this Act. Parliament being supreme, it
certainly could make a law abrogating or
repealing by implication provisions of any
pre-existing law and no exception could be
taken on the ground of excessive delegation
to the act of Parliament itself. There is no
delegation involved in the provisions of
Section 6 at all and that section could not
be held to be unconstitutional on that
ground."

18. Therefore, in view of the law laid
down by the Apex Court in the case of
Hari Shankar Bagla (supra), even the
central Act can be amended by the State in
exercise of power under Section 10 of the
Criminal Law (Amendment) Act, which
itself is a central legislation and in case of
inconsistency, assent of the President is not
required in such notification.

19. From the above analysis, it is
clear
that
the
notification
dated
31.7.1989, issued in exercise of power
under Section 10 of the Criminal Law
(Amendment)
Act
under
the
first
Schedule of Cr.P.C., 1973, will be
deemed to be issued for amending
schedule-I
of
the
B.N.S.S.
making
Section 351(2) B.N.S. (corresponding
Section 506 I.P.C.) as cognizable and non
bailable and such notification is already
saved by Section 531(2) B.N.S.S. which is
pari material of Section 484 of Cr.P.C.,
1973. Therefore, in the State of U.P.,
Section
351(2)
B.N.S.
will
remain
cognizable and non bailable in view of
the notification dated 31.7.1989 which
was in force at the time of repealing the
Cr.P.C. by B.N.S.S.

20. So far as the second question that the
impugned F.I.R. suffers from mala fide is
concerned, from the perusal of the record, it
appears that two civil suits, regarding the
property in dispute as well as criminal cases
are pending between the parties and in the
F.I.R. lodged by respondent No.5, in Case
Crime No. 102 of 2024, under Sections 147,
148, 149, 323, 325, 504, 506, 392 I.P.C., P.S.
Tharwai, District Prayagraj, the petitioner
had got interim bail. Thereafter, the
impugned
F.I.R.
was
lodged
without
mentioning the date, place or time of the
incident of threatening to respondent No.5.
Thereafter, respondent No.5 also filed an
application before the Deputy Commissioner
of Police, Gangapar for cancelling the
anticipatory bail application of the petitioner
in Case Crime No. 102 of 2024.

21. Apart from the above, perusal of
the impugned F.I.R. as well as application
dated 3.7.2024 of respondent No.5, also
show that the main emphasis of respondent
No.5 to cancel the anticipatory bail of the
petitioner in Case Crime No. 102 of 2024,
registered
at
P.S.
Tharwai,
District
Prayagraj, therefore, contention of the
petitioner that the impugned F.I.R. suffers
from mala fide, appears to have substance.
Therefore, on this point the matter requires
consideration.
10 All. Abdul Mannan & Ors. Vs. State of U.P. & Ors.
797

22. Issue notice to respondent No.5.

23. Learned A.G.A. is granted three
weeks' time to file counter affidavit. The
petitioner shall have two weeks thereafter
to file rejoinder affidavit.

24. List in the week commencing
11.11.2024.

25. Till the next date of listing, no
coercive action shall be taken against the
petitioner in F.I.R. No. 196 of 2024, under
Section 351(2) of the Bharatiya Nyaya
Sanhita, 2023, Police Station- Tharwai,
Commissionerate Prayagraj, provided the
petitioner cooperates in the investigation.
----------
(2024) 10 ILRA 797
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Criminal Misc. Writ Petition No. 16673 of 2024

Abdul Mannan & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
A.C. Srivastava, Ram Lakhan Deobanshi

Counsel for the Respondents:
C.S.C., Shahabuddin

Criminal Law - Indian Penal Code, 1860 -
Sections 419, 420, 323, 504, 506, 467,
468, 471 &120B - Waqf Act, 1995 -
Sections 51, 52 & 83(2) - Quashing of FIR
- Petitioners and opposite party no.4
belongs to same family - Ancestors of
them created Waqf in 1959, in respect of
property
owned
by
him
and
was
registered by U.P. Sunni Central Waqf
Board - The Board vide order dated
19.03.2019 appointed petitioner No. 1 as
Mutawalli, to manage affairs of said Waqf
- F.I.R was lodged by opposite party no.4
against petitioners - Allegations against
them that they are damaging Waqf
property for their personal gain, petitioner
No.1 manipulated a 'Hiba-nama' dated
27.10.1969 in respect of part of said
property and mutated in his name, in
Revenue Records - They illegally alienated
Waqf property even without approval of
Board
-
Petitioners
submitted
that
properties mentioned in Waqf-deed dated
14.03.1959 are different than properties
mentioned in Hiba-nama. (Para 3, 4, 5, 6)

Held, informant tried to transform civil
dispute into a criminal one - Dispute was
adjudicable only by competent forum
constituted u/s 83(1) of Waqf Act, thus
impugned F.I.R without sanction of Board,
was unsustainable in law and contravened
the provisions of section 52A (3) of Waqf
Act, quashed. (Para 14, 16)
Writ Petition allowed. (E-13)

List of Cases cited:

1. Indian Oil Corporation Vs NEPC India Ltd.
reported in 2006 (6) SCC 736

2. Professor R.K. Vijayasarathy & anr.Vs Sudha
Seetharam & anr.reported in 2019 (16) SCC 739
(Delivered by Hon'ble Mohd. Syed Qamar
Hasan Rizvi, J.)

1. Heard Shri A.C. Srivastava, learned
counsel for the petitioners, Shri Anil
Kumar Srivastava, learned counsel for
opposite party no.4 and learned Additional
Government Advocate for the State.

2. Since pure legal issue is involved in
this case therefore, without calling counter
affidavit, with the consent of the learned
counsel for the parties, the present Writ