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Dilemma of Section 506 IPC
Abstract: -
There is a dilemma before legal fraternity about the offence
mentioned under Section 506 IPC, because when you go through the first schedule
of the Code of Criminal Procedure, 1973 it shows till right now bailable and
non-cognizable offence and under section 320 Cr.P.C. It is mentioned as a
compoundable offence. It is very clear that if the offence of that particular
section is non-cognizable then a different kind of trial procedure will have to
be adapted if the offence is cognizable then a different kind of procedure will
have to be adopted by the same. Other hand if offence is compoundable then in a
very initial stage proceeding can be concluded therefore clear-cut situation or
notion of the section 506 should be there by which speedy disposal of the cases
could be made accordingly
Keywords- Bailable, Non-bailable, Cognizable, Non-Cognizable, Compoundable.
Extent of article: -
The first
extent of this article would be that whether the offence under Section 506 IPC
is bailable or non-bailable? The Second extent of this article would be whether
the offence of 506 IPC is Cognizable or non-cognizable and last extent of this
article would be whether the offence mentioned under section 506 IPC is
compoundable or non-compoundable. It should be inculcated in mind that the
nature of offence under section 506 IPC would be discussed in this article in
the light of the state of Uttar Pradesh. The relevant notification and Case
laws would be discussed as per requirement of the subject.
Whether offence under section 506 is bailable or
non-bailable or cognizable or non-cognizable: - As you know the bailable offences are those offences
which are mention bailable in the first schedule of the Code of Criminal
Procedure, 1973 and accused can claim bail as a matter of right.[1]
Whereas non-bailable offences are those offences which mention
non-bailable in the first schedule of the Code of Criminal Procedure, 1973 and
accused cannot claim as a matter of right.[2]
Cognizable
offence means an offence for which, and cognizable case means a case in which,
a police officer may, in accordance with the First schedule or under any other
law for the time being in force, arrest without warrant.[3]
Non-cognizable offence means an offence for which and non-cognizable
case means a case in which, a police officer has no authority to arrest without
warrant.[4]
The
original text of the first schedule of the Code of Criminal procedure provides
that offence is non-cognizable, bailable and triable by Magistrate of the first
class. It means that originally in central enactment offence under section 506
is bailable and non-cognizable. But in the state of Uttar Pradesh there is
notification dated 31.07.1989 published and the nature of offence under section
506 IPC has been declared cognizable and non-bailable.[5]
The aforesaid 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 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 super session 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.”
The aforesaid notification has been issued under Section 10 of the
Criminal Law Amendment Act, 1932 (Act No. 23 of 1932), which provides as
follows: “
10. Power of State Government to make certain offences
cognizable and non-bailable. —
(1) The State Government may, by notification4 in the
Official Gazette, declare that any offence punishable under section 186, 188,
189, 190, 228, 295A, 298, 505, 506 or 507 of the Indian Penal Code (45 of
1860), when committed. in any area specified in the notification shall,
notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5
of 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
(45 of 1860), shall be non-bailable.”
The validity of the aforesaid Notification dated 31-07-1989 was examined
by a Division Bench of this Court in Virendra Singh versus State of U.P.,
2002 Indian Law reports Allahabad Series 653 2002 (2) UC 453 and in that
case, this Court held as follows: -
“6. 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 Code of Criminal Procedure, 1973. Since the Code of Criminal Procedure
of 1898 has been repealed by Section 484 of the Code of Criminal Procedure.
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-94(2)-87, dated July 31, 1989, published 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.”
However, in the case of Mata Sewak Upadhyay versus State of U.P.,
1995 CJ (All) 1158, a Full Bench of this Court examined the validity of the
aforesaid Notification dated 31.07.1989 (02.08.1989) in this case Hon’ble
Allahabad High Court declared that the notification dated 31.07.1989 is valid
it means that offence mention under section 506 within the state of U.P. is
cognizable and non-bailable.
The aforesaid Full Bench decision in Mata Sewak
Upadhyay (Supra) has been approved by the Hon’ble Supreme Court in Aires
Rodrigues versus Vishwajeet P. Rane (2017) 11 SCC 62. Now there is no doubt
that an offence under Section 506 IPC, if committed in the State of U.P. is a
cognizable and non-bailable offence.
But
there is a dilemma before us: there is a contrary view of the Hon’ble High
Court Allahabad. In this regard there is doctrine of stare decisis in which if
there are any full bench judgment same will be followed over division bench but
here is Hon’ble Supreme Court judgment is there as mentioned above, hence there
is no dilemma now it is very clear that offence under section 506 within the
territory of the Uttar Pradesh is cognizable and non-bailable. Recently Hon’ble
High Court has made reliance on the full bench judgment and held that the
offence under section 506 is cognizable and non-bailable.[6]
Whether offence under section 506 is compoundable or non-compoundable: -
Section
320 Code of Criminal Procedure provides that the offence mentioned under
section 506 IPC is compoundable by the person intimidated. It means that
nowadays offence of 506 is compoundable without the permission of the Court
concerned. But it must be kept in the mind that the order in this respect
should be passed by the Court even if the offence is compoundable either with
the permission of the Court or without the permission of the Court. It is also
inculcating that order regarding compounding of the offence can be passed at
any stage after taking cognizance even before to the bail stage, in a simple
term if the accused is not even bailed out, order in this respect can be
passed.
It is also inculcated in mind
that before 31.12.2009 offence of the 506 in respect of 320 Cr.P.C. is divided
into two parts like 506(1) and 506 (2), section 506 (1) was compoundable but
rest part was not compoundable.[7]
There is one question arises before us that whether offence committed before 31.12.2009 can be compounded in the light of the amendment of 2008 then response would be negative because criminal law always applicable from prospective effect. But it must be kept in the mind that if the offence even non-compoundable but kind of civil nature or not very grievous in nature can be compounded by the Hon’ble High Court.[8]
Conclusion: -
Now it is well established that the offence under section 506 IPC
is cognizable and non-bailable but when you are dealing practically in respect
of bail generally granting of bail is considered by the Court unless and until
there are contrary situations that occur before the courts. Whereas aforesaid
offence is compoundable in nature by the person intimidated, it is in the first
table of the Section 320 therefore without the permission of the Court the
offence can be compounded.
[1]Section 2 (a) Code of Criminal
Procedure Code, 1973
[2]Section 2 (a) Code of Criminal
Procedure Code, 1973
[3]Section 2 (c) of the Code of
Criminal Procedure, 1973
[4]Section 2 (l) of the Code of
Criminal Procedure, 1973
[5]Any offence punishable under Section
506 IPC, when committed in any district of Uttar Pradesh shall be
notwithstanding anything contained in the Code of Criminal Procedure, 1973,
cognizable and non-bailable [Vide notification No. 777/VIII 9-4 (2)-87, dt.
31-07-1989, published in UP Gazette, Ext., Pt-A, Section (kha) dated 2-8-1989]
[6]Taiyab Khan and others vs State of
U.P. and another, Application No. 17555/2018 DOJ 25.08.2018, Ashish Saraswat
and others vs State of UP, Application No 5318/2020 DOJ 07.02.2020 & Rajesh
Kumar Shukla vs State of Uttar Pradesh, Application 482 No.2955/2007 DOJ
24.12.2021.
[7] Nijam Uddin and others vs State of UP and Another, Application u/s
482 No.12830/2010 DOJ 02.08.2010
[8] B.S. Joshi and otherrs vs State of Haryana and another, (2003) 4
SCC 675 & Nikhil Merchant vs CBI and another, (2008) 9 SCC 650.
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