# Virendra Singh v. State of U.P. and others

- **Citation:** (2002) 3 ILRA 653
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-08-01
- **Case number:** Crl. Misc. Writ Petition No.4188 of 2002
- **Bench:** M. Katju, K.N. Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-singh-v-state-of-u-p-and-others-39920
- **Pages:** 3

## Headnote

Criminal Law Amendment Act-section 10
and Indian Penal Code- section 506-
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
amended even by a U.P. Act unless the
assent of the Present 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.
(Held in para 10)

We
are
of
the
opinion
that
the
notification
dated
31.7.1989
issued
under section 10 of the Criminal Law
Amendment Act, 1932 making Section
506 I.P.C. cognizable and non bailable is
illegal.

## Text

http://www.allahabadhighcourt.nic.in
3 All] Virendra Singh V. State of U.P. and others
653
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 1.8.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE K.N. SINHA, J.

Crl. Misc. Writ Petition No.4188 of 2002

Virendra Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Sukhendu Pal Singh
Sri Tejpal

Counsel for the Respondents:
A.G.A.

Criminal Law Amendment Act-section 10
and Indian Penal Code- section 506-
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
amended even by a U.P. Act unless the
assent of the Present 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.
(Held in para 10)

We
are
of
the
opinion
that
the
notification
dated
31.7.1989
issued
under section 10 of the Criminal Law
Amendment Act, 1932 making Section
506 I.P.C. cognizable and non bailable is
illegal.

(Delivered by Hon'ble M. Katju, J.)

1. Heard learned counsel for the
petitioners
and
learned
Government
Counsel.

2. This petition has been filed
against the First Information Report dated
12.7.2002
(Annexure-1
to
the
writ
petition) under Section 506 I.P.C. In this
F.I.R. the allegation is that the petitioners
are threatening to kill the first informant.

3. It is not necessary for us to quash
the F.I.R. in view of the observations and
directions made below.

4. Section 506 I.P.C., as mentioned
in the first schedule to the Code of
Criminal Procedure, 1973, is declared to
be a non-cognizable and bailable offence.
However, it appears that by U.P. Govt.
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 it was declared to be a
cognizable and non-bailable offence. This
notification 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
non-bailable."

5. The above notification purports to
have been issued under Section 10 of the
Criminal Law Amendment Act 1932.
Section 10 (1) of the said Act states as
follows:-
http://www.allahabadhighcourt.nic.in
654 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
"The State Government may, by
notification in the Official Gagette,
declare that any offence punishable
under Ss. 186, 188, 190, 228, 295-A, 298,
505, 506 or 507 of the Indian Penal
Code, when committed in any area
specified
in
the
notification
shall,
notwithstanding anything contained in
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.

6. Section 10 (2) of the Act states:

"(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 shall be non-bailable."

7. Section 10 of the Criminal Law
Amendment Act, 1932 gives power to the
State Government to declare certain
offences including section 506 IPC to be
cognizable and non-bailable and on
issuance of the said notification the Code
of Criminal Procedure, 1898 shall stand
amended accordingly.

8. 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 the U.P. Gazette, Extra Part 4
Section (Kha) dated 2nd August, 1989 by
which section 506 IPC was made
cognizable and non-bailable to be illegal.
Section 506 IPC has to be treated as
bailable and non-cognizable offence.

9. 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.

10. It is surprising that while
sections 323, 324 and 325 I.P.C. are
bailable offences the State Government
has chosen to declare by this illegal
notification of 1989 that Section 506 IPC
is a non bailable and cognizable offence.
This
means
that
if
person
breaks
someone's hand or attacks him with a
knife on his leg or hand he will be granted
bail by the police on his mere request, but
if he gives a threat he will be arrested and
will have to apply for bail to the Court.
This is an anomalous situation. At any
event, we are of the opinion that the
notification dated 31.7.1989 issued under
section
10
of
the
Criminal
Law
amendment Act, 1932 making section 506
IPC cognizable and non bailable is illegal.

11. This petition is disposed off
accordingly.
http://www.allahabadhighcourt.nic.in
3 All] Moinuddin V. Board of Revenue, U.P. and others
655
12. Let a copy of this order be sent
by the Registrar General of this Court to
the Principal Home Secretary, Principal
Law Secretary and the D.G.P., U.P. The
D.G.P. will communicate it to all S.S.Ps.
and S.Ps. in the State, who in turn will
communicate it to all Station Officers of
police stations in the State. A copy shall
also be sent to all the District Judges of
this State.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.7.2002

BEFORE
THE HON'BLE R.H. ZAIDI, J.

Writ Petition No. 10837 of 1984

Moinuddin

...Petitioner
Versus
Board of Revenue, U.P. at Allahabad and
others

 ...Respondents

Counsel for the Petitioner:
Sri Rajendra Pd. Srivastava
Ch. N.A. Khan

Counsel for the Respondents:
Sri Triveni Shankar
S.C.

U.P. Z.A. & L.R. Act- Section 198 (4)-
cancellation- of allotment- the property
in dispute admittedly being the evacuee
property, the same could not be subject
matter of allotment under the Act nor
the respondents no. 1 and 2 could pass
any order against the order passed by
the authorities under the aforesaid Acts.

(Delivered by Hon'ble R.H. Zaidi, J.)

1. By means of this petition filed
under Article 226 of the Constitution of
India,, petitioner prays for issuance of a
writ, order or direction in the nature of
certiorari
quashing
the
order
dated
26.2.1976 passed by the Additional
Commissioner, respondent no. 2, and the
order dated 6.6.1984 passed by the Board
of Revenue, U.P., at Allahabad in the
proceedings under section 198 (4) of the
U.P. Zamindari Abolition and Land
Reforms Act, for short the Act against the
petitioner.

2. The relevant facts of the case
giving rise to the present petition, in brief,
are that plot nos. 38/2, 2,55,56 and
201/168 of village Birbhan alias Malikan
Gaon,
Pargana
Bahariabad,
district
Ghazipur for short ' the land in dispute'
are the subject matter of dispute in the
present case. The land in dispute was
originally owned by Mohammad Tariq,
Smt. Abdi Bibi and Kamal Ahmad who
migrated to Pakistan in the year 1947 or
thereafter. On their migration from India
to Pakistan the land in dispute was
declared as evacuee property under the
Administration of Evacuee Property Act.
The land in dispute was thereafter
acquired by the Government of India vide
Government
of
India,
Ministry
of
Rehabilitation Notification no. 1/3/1157B-111, November 26, 1957 under section
12
of
the
Displaced
Persons
(compensation and Rehabilitation) Act,
1954, for short the 1954 Act, as it is
evident from Annexure 1 to the writ
petition and Annexure RA 1 to the
rejoinder affidavit after following the
procedure prescribed under the law. The
land in dispute was ultimately sold in
favour of the petitioner and sale certificate
was issued in his favour by the Managing
Officer/Assistant Custodian, Lucknow, on
5.8.1970. After purchase of the land in
dispute the petitioner came to know that
the said land, without following the
procedure prescribed under the law and in