Full Judgment
M. Katju, J.
1. Heard learned counsel for the petitioners and learned Government Counsel.
2. This petition has been held 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 suppression 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 :-
The State Government may, by notification in the Official Gazette, declare that any offence punishable under Sections 186, 188, 189, 190, 228, 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.
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.
6. Section 10 of the Criminal Law Amendment Act, 1932 gives power to the State Government to declare certain offences including Section 506, I.P.C. to be cognizable and non-bailable and on issuance of the said notification the Code of Criminal Procedure, 1898 shall stand amended accordingly.
7. 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 in the U.P. Gazette, Extra Part 4, Section (kha), dated 2nd August, 1989 by which Section 506, I.P.C. was made cognizable and non bailable to be illegal. Section 506, I.P.C. has to be treated as bailable and non -cognizable offence.
8. 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.
9. 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, I.P.C. 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, I.P.C. cognizable and non bailable is illegal.
10. This petition is disposed of accordingly-
11. 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.