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Section-506 IPC - Question of cognizability by Rakesh Kumar Singh
When CrPC was enacted in 1898, Section-506 IPC was shown as non-cognizable and therefore there could not have been any doubt. The doubt started with the introduction of Criminal Law Amendment Act, 1932, Section-10 S ection-10 whereof reads thus:
“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 Sections 186, 189, 188, 190, 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 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 shall be non-bailable.” n on-bailable.”
Section-506 IPC - Question of cognizability: cognizability: prepared by Rakesh Kumar Singh
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2.
Clearly, a power was vested in the Govt. to declare the Section-506 as cognizable
and non-bailable. The then Chief Chief Commissioner of Delhi issued a notification notification No.-232Home dated 11.01.1933 by virtue of the said power and made Section-506 as cognizable and non-bailable and the same reads as under:
''Notification. 232-Home Delhi the 11th January 1933. In exercise of the powers conferred by Section 10 of the Criminal
Law
Amendment
Act
1932,
the
Chief
Commissioner of Delhi is pleased to declare. (1) That any offence punishable under Sections 186, 188, 189 and 506 of the Indian Penal Code, when committed in The Delhi Province, shall, notwithstanding anything contained in the Code of Criminal Procedure, 1898, be cognizable, and (2) That any offence punishable under Sections 188 or 506 of the Indian Penal Code shall be non-bailable. n on-bailable. Sd/- J.N.G. Johnson. Chief Commissioner, Delhi,''
3.
Cognizability of Section-506 was challenged before a division bench of Hon’ble
High Court of Delhi and the State relied upon the aforesaid notification. The division bench accepted the validity of the aforesaid notification even after the enactment of CrPC 1973. The case was titled as Sant Ram vs Delhi 17 (1980) DLT 490. 490. The relevant extract is as under: Section-506 IPC - Question of cognizability: cognizability: prepared by Rakesh Kumar Singh
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“Thus, the main grievance of the petitioner that he has been proceeded against on an F.I.R. which was wrongly registered and the proceeding against him are void and Ultra Vires of Articles 14 of the Constitution as being discriminatory has to fail because the offences of which the petitioner has been charged are cognizable as well as non-bailable in the Union Territory of Delhi as it now exists. The petitioner urged that the effect of the passing of the Criminal Procedure Code, 1973 was to terminate the effect of the said notification, but this is obviously not so. All notifications and laws previously in force are continued by Section 484(2) of the new Act, and in any case, the notification was issued under the Amendment Act, 1932 which is not at all affected by the repeal of the Criminal Procedure Code of 1898.”
4.
A single bench of Hon’ble High Court of Delhi in Narendra Kumar vs State
2004 (72) DRJ 620 however 620 however taken a different path. Some portions of the judgment are quoted here in under: “Having had a vast and wide experience in administering criminal justice, justice, this Court is in complete agreement with the counsel for the petitioner as it has come across hundreds of cases where the substantial offences are such which are ''noncognizable'' and ''bailable'' that the police incorporates an offence under Section 506 IPC on bald statement of the complainant that he had been threatened by the accused Section-506 IPC - Question of cognizability: cognizability: prepared by Rakesh Kumar Singh
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without specifying whether it falls within part I or part II as part I prescribes two years' sentence or fine while part II prescribes seven years or fine. Having once registered the FIR for the offence under Section 506 IPC Police empowers itself to arrest the offender and send him to jail as in that case he cannot be released unless he approaches the Court for seeking bail which at times is not allowed. *** Division Bench of this Court has in Sant Ram Vs. Delhi State and others held that the effect of the passing of the Criminal Procedure Code, 1973 was not to terminate the effect of the said notification as all notifications and laws previously in force are continued by Section 484(2) of the new Code of 1973 and, therefore, in any case the notification issued under the Criminal Law Amendment Act 1932 is not at all affected by the repeal of the Criminal Procedure Code of 1898 in 1973. Legal validity of a Notification under the provisions of ancillary law is one thing. Its justification and need is another thing particularly when the nature of notification as is in the instant case is such which is by way of temporary arrangement to meet out a particular situation. That is why this court does not propose to quash it but intends to recommend to the authorities for a review as to its necessity. necessity. This is a case where one has to see whether this notification has out-lived its life and is an archaic piece of legislation which has never received any thought or review or Section-506 IPC - Question of cognizability: cognizability: prepared by Rakesh Kumar Singh
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reasons for its continuation and in effect, has obliterated the provision legislated by the Parliament as recently as in 1973 from the statute book. *** In my view continuation of such a notification issued way back in the year 1933 without reviewing the situation from time to time is not only an affront to the liberty of the citizens at large but has the tendency to subvert s ubvert the law enacted by the Parliament and, therefore, for ends of justice and to maintain the sanctity of the law enacted by the Parliament as well as the liberty of citizens this court orders that the notification no. 232-Home dated 11th January, 1933 issued by Mr. JNG Johnson, the ten Chief Commissioner of Delhi declaring the offence punishable under Section 506 IPC as ''cognizable'' and ''non-bailable'' which has continued for 70 long years without any review of the factors and conditions that necessitated it, shall cease to be in operation from 15th January, 2004 till the Government takes a review review of the overall situation and decides as to the necessity of its continuation.” 5.
What is interesting to note is that the court expressed its agreement with Ld.
Counsel for petitioner on the basis of its “vast and wide experience in administering criminal justice”. Another point which is required to be noted is that the court was not inclined to quash the notification as validity thereof was already upheld by a division bench. But in the next breath, the Court directed that the notification shall cease to have effect. Then again it given a restrictive meaning to its own direction when it said that the direction shall only continue till the Govt takes a review. One more point may be noted. Section-506 IPC - Question of cognizability: cognizability: prepared by Rakesh Kumar Singh
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In this case, the FIR was quashed on account of a settlement and only after that the court taken note of the aforesaid notification and started discussing the same.
6.
In such circumstances, it is doubtful if the judgment can be taken as a binding
precedent. Even if it is to be taken so, the judgment itself says that its effect will be till the time the Govt takes a decision. Interestingly, the Govt. on 31.03.2004 again issued the same notification. Meaning thereby that the judgment exhausted itself.
7.
The notification dated 31.03.2004 was challenged before the Hon’ble High Court
of Delhi in Rajeev Mehra vs State WP(C) 2596/2007 2596/2007 and a division bench therein passed the order dated 18.01.2016 to the following effect:
“In view of the above, we hold that the notification issued under Section 10 of Criminal Law Amendment Act, 1932 cannot be sustained. Accordingly, notification is set aside and writ petition is allowed as prayed for.”
8.
The division bench (supra) primarily premised its decision in following manner:
“Therefore, we deem it appropriate that the impugned notification is required to be considered only on the ground that such a notification can be issued under the Criminal Law Amendment Act, 1932. This issue can no longer be res
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integra in view of the decision of this Court in Narender Kumar vs. State 2004 (1) JCC 303………”
9.
It would be interesting to consider if the order dated 18.01.2016 can be treated as a
binding precedent. We have already seen that the judgment in Narender Kumar case could not be treated as a declaration of law. Moreover, both the cases i.e. Narender Kumar and Rajeev Mehra Mehra are in direct conflict with the earlier division bench judgment in Sant Ram (supra).
10.
Now, the centre point would be the doctrine of precedent.
10.1. A constitution bench of bench of Hon'ble Supreme Court in Union of India vs Raghubir Singh 1989 (2) SCC 754 has 754 has held as under:
“…..the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. …”
10.2. Hon'ble Supreme Supreme Court in Sundeep Kumar Bafna vs State of Maharashtra (2014) 16 SCC 623 has 623 has held as under: “If the third sentence of para 48 is discordant to Niranjan Singh, the view of the coordinate Bench of earlier vintage must prevail, and this discipline demands and constrains us
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also to adhere to Niranjan Singh.... *** It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.”
10.3. Authorities can be multiplied multiplied on the point of precedent but would be an an unnecessary exercise. The view is too settled to require any further discussion. If there are two judgments of equal strength, the earlier view has to be followed.
11.
In the present situation, the earliest view was the pronouncement in Sant Ram
(supra) and therefore the same has to be followed. Consequently, the notification issued under Section-10 of Criminal Law Amendment Act, 1932 has to be accepted as valid.
12.
Any argument based on no backing of Delhi legislature would be preposterous as
the 1932 law is to be treated as a central law and it had delegated the power to an executive authority and not to the state legislature and therefore there cannot be any necessity of Delhi state enactment to give any support to the notification nor in the absence thereof the notification can be treated as invalid.
13.
The result would be that the offence punishable under Section-506 IPC is to be
treated as cognizable and non-bailable.
14.
However, in UP and Maharashtra, division benches there have quashed the
notification issued under Section-10 (supra). Section-506 IPC - Question of cognizability: cognizability: prepared by Rakesh Kumar Singh
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