1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2182 OF 2010 Parsad Sharad Shah & Others ..... Applicants. v/s The State of Maharashtra ...... Respondent. Mr. Ganesh Gole i/b Rajendra Rathod for the applicants. Mr. A.S. Shitole, APP with Mrs. Poonam Bhosale APP for the State. CORAM: V. M. KANADE, J. DATE : 6th May, 2010 P.C.:- 1. Heard the learned Counsel appearing on behalf of the applicants and the learned APP appearing on behalf of the State. 2. By this application which is filed under section 482 of the Criminal Procedure Code, applicants are seeking quashing of the proceedings bearing C.C. No.578/PW/2008 pending before the learned Additional Chief Metropolitan 2 Magistrate, 37th Court, Esplanade, Mumbai. The offence was registered vide C.R. No.54 of 2008 for the offence punishable under sections 504, 506 II read with section 34 of the Indian Penal Code. Thereafter, charge-sheet was also filed and the trial is commenced. 3. Applicants have filed this application under section 482 of the Cr.P.C for quashing the said complaint mainly on the ground that both the offences being non-cognizable, could not have been registered under section 154 of the Cr.P.C and, therefore, there there was no question of filing charge- sheet under section 173 of the Cr.P.C. The learned Counsel appearing on behalf of the applicants invited my attention to the First Schedule of Cr.P.C which shows that offence under section 504, 506 II are non-cognizable. He further submitted that section 155(2) also lays down that the Police Officer shall not investigate non-cognizable case without the order of Magistrate who has a power to try such cases or commit cases for trial. He also relied upon the judgment of the learned Single Judge of this Court (Coram: S.C. Dharmadhikari, J.) in Ajay Yogindra Mafatlal & Anr. Vs. State of Maharashtra1. 4. The learned APP appearing on behalf of the State, on the other hand, submitted that by virtue of Notification issued by the Government of Maharashtra under section 10 of the Criminal Law Amendment Act, 1932, the offence under section 506 of the Indian Penal Code, so far as Greater 1 2010 ALL MR (Cri) 1163 3 Bombay is concerned, is made cognizable and non-bailable. She submitted that the learned Single Judge of this Court in a judgment in The State of Maharashtra Vs. Rajkumar1 has reproduced the said Notification and has held that the said offence is cognizable and non-bailable. In the said case, the learned Magistrate had discharged the accused on the same ground and had relied on decision of this Court in Prabhakar Pandurang Sanzgiri Vs. The State of Maharashtra2. The learned Single Judge also noted the judgment of the learned Single Judge of this Court in Criminal Application No.633 of 1979 decided on 1st October, 1980 and also Division Bench Judgment of Gujarat High court in Vinod Rao Vs. State of Gujarat3 which held that section 10 of the Criminal Law Amendment Act does not offend Article 14 of the Constitution of India. In this view of the matter, submission made by the learned Counsel appearing on behalf of the applicants that offence under section 506 is a non- cognizable and bailable offence cannot be accepted. The learned Single Judge in Rajkumar (supra) in para 3 of the judgment has observed as under:- “3. It is undoubtedly true that the learned Single Judge in Prabhakar’s case (supra) has held that the offence under section 506 of the Indian Penal code being non- cognizable, the investigation into such offence by Police Officer without the order of the Metropolitan Magistrate is 1 1988 (1) Bom.C.R.15 2 1986(1) Bom.C.R.272 3 1981 Cr.L.J.232 4 contrary to the provisions of section 155(2) of the Cr.P.C and, therefore, the investigation, filing of charge-sheet and framing of charge are all vitiated and the proceedings are liable to be quashed. However, the aforesaid relevant Notification under the Criminal Law Amendment Act was not pointed out to the learned Judge and no arguments, were advanced in that behalf the judgment, therefore, proceeded without any reference to the said Notification and in total ignorance of the said Notification. Shri Vyas has produced before me a copy of the said Notification which is as under:- “Government of Maharashtra Notification, Home Department (Special) No.S.B. 1/CIA/1060/26963 dated the 4th October, 1962 as amended by Notification, Home Department (Special) No.S.8 I/CIA/1061/27115 dated the 10th August, 1962. No.S.B.I/CIA/1960/26963. In exercise of the powers conferred by section 10 of the Criminal Law Amendment Act, 1932 (XXIII 1932) and in suppression of Government Notification, Home Departments (Political) No. S.B. 7753, dated the 27th December, 1932, the Government of Maharashtra hereby declares that the offence of criminal intimidation punishable under section 506 of the Indian Penal Code (XLV of 1860) where the threat is to cause death or grevious hurt or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life or with imprisonment for a term which may extend to seven years or to impute unchastity to a women, when committed 5 in Greater Bombay shall, notwithstanding anything contained in the Code of Criminal Procedure 1898) (V of 1898) be cognisable and non-bailable. By order and in the name of Governor of Maharashtra J.R. Gabral Deputy Secretary to the Government of Maharashtra, Home Department.” In view of this Notification and in view of the decision of this Court (Shah, J.) in Criminal Revision Application No.633 of 1979 dated 1st October, 1980, I hold that the offence under section 506 of the Indian Penal Code is cognizable and non-bailable so far as Greater Bombay is concerned. The order of the learned Magistrate discharging the accused is, therefore, obviously, bad in law and deserves to be quashed and set aside.” 5. It appears that this fact was not brought to the notice of the learned Single Judge (S.C. Dharmadhikari, J.) and, therefore, the learned Judge was pleased to quash the complaint by making following observations in para 4 of the judgment in Ajay Yogindra Mafatlal (supra) which reads as under:- “4. In the light of this settled legal position and agreed fact that the offences alleged are punishable under Sections 504 and 506, Part (II) of I.P.C., the proceedings in C.R. No.319 of 2007 are quashed and set aside. The Application is allowed in these terms but with liberty to the Complainant to 6 take such steps as are permissible in law if they are aggrieved by the actions of the Applicants.” The said observations, obviously, are made since the Notification issued under section 10 of the Criminal Law Amendment Act, 1932 by the Government of Maharashtra making the the offence under section 506 of the Indian Penal Code cognizable and non-bailable if registered in Greater Bombay, was not brought to the notice of the said learned Judge. 6. In the result, submissions made by the learned Counsel for the applicants cannot be accepted. Application is dismissed. Applicants are at liberty to take appropriate steps for filing application for discharge before the Trial Court. (V.M. KANADE, J.) 7