Rajesh Dayal Khare, J. - (1.) HEARD learned counsel for the applicants and learned AGA for the State. The applicants by way of filing this application under section 482 Cr.P.C. has sought to quash the criminal proceedings of case no. 952 of 2009 under Sections 323, 504, 506 IPC, P.S. Pilkhua District Ghaziabad pending before Judicial Magistrate, Hapur District Ghaziabad.
(2.) THE only argument raised by counsel for the applicants is that, it is not disputed that offence under sections 323, 504 IPC is non -cognizable and the offence under section 506 IPC was cognizable and non -boilable vide Uttar Pradesh Government Notification no. 777/VIII -94(2) -87 dated July 31, 1989. This notification issued by the government was held to be illegal by the Division Bench of this Court in the case of Virendra Singh and others vs. State of U.P. and others,, XLV 2000 ACC 609 and so the position is that now the offence under section 506 IPC is also a non -cognizable offence. It has been further argued that the offence under sections 323, 504, 506 IPC, are non -cognizable so in view of the explanation to section 2(d) Cr.P.C. the court below cannot proceed as State case and it can only be proceeded as complaint case and the person who has filed the report shall be treated to be complainant and the learned Magistrate erroneously passed an order treating it as State case. In view of this the offence under section 323, 504, 506 IPC are non -cognizable so in view of the explanation of section 2(d) of Cr.P.C. report of police officer after investigation regarding commission of non -cognizable offence shall be deemed to be complaint and the police officer who submitted the report shall be deemed to be the complainant. So the report submitted by the police officer in a non -cognizable offence only shall be treated to be complaint and the procedure prescribed for hearing of complaint case shall be applicable to that case. In the present case according to the explanation of section 2(d) of Cr.P.C. charge sheet submitted by the police under section 323, 504, 506 IPC shall be treated as a complaint and it is to be decided as complaint. The learned Magistrate felt in legal error by taking cognizance as State case and the order passed by him is, therefore, liable to be set at rest.
(3.) PER contra learned AGA has contended that section 506 IPC has been made cognizable and the vires of the amendment in Cr.P.C. making it cognizable has been upheld by a full bench of this Court in the case of Mata Sewak Upadhyaya vs. State of U.P. and others, reported in, 1995 AWC 2031 :, 1996 All. JIC 107. He further submitted that in view of this the judgment of Mata Sewak Upadhayaya delivered by the full bench has to be followed. Taking note of the submissions of the counsel for the parties and having perused the material placed on record as well as the Division Bench judgment and Full Bench Judgment rendered by this Court, I find that the division bench of this Court in the aforesaid decision came to the conclusion that making section 506 IPC cognizable and non -boilable by the State Government through the above notification is illegal and section 506 IPC has to be treated as boilable and non -cognizable offence for the reasons mentioned in the aforesaid judgment of the Division Bench declaring the above mentioned notification illegal.;