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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 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.

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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 Commissioner of Delhi issued a 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.
Sd/- J.N.G. Johnson.
Chief Commissioner, Delhi,''

3.

Cognizability of Section-506 was challenged before a division bench of Honble

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. The relevant
extract is as under:
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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 Honble High Court of Delhi in Narendra Kumar vs State

2004 (72) DRJ 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, 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
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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. 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
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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 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 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.
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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 Honble High Court

of Delhi in Rajeev Mehra vs State WP(C) 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 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 Hon'ble Supreme Court in Union of India vs Raghubir

Singh 1989 (2) SCC 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 Court in Sundeep Kumar Bafna vs State of Maharashtra

(2014) 16 SCC 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 on the point of precedent but would be 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).

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