Allahabad High Court
Mohammad Ishtiyaq And 2 Others vs State Of U.P. Thru. Secy. Home Lko. And 2 … on 7 August, 2026
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2026:AHC-LKO:54585-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL MISC. WRIT PETITION No. - 6191 of 2026
Mohammad Ishtiyaq And 2 Others
.....Petitioner(s)
Versus
State Of U.P. Thru. Secy. Home Lko. And 2 Others
.....Respondent(s)
Counsel for Petitioner(s)
:
Rehan Ahmad Siddiqui, Badar Iftikhar
Counsel for Respondent(s)
:
G.A.
A.F.R. Judgement reserved on 27.07.2026 Pronounced on 07.08.2026 Court No. - 9
HON'BLE RAJESH SINGH CHAUHAN, J.
HON’BLE RAM MANOHAR NARAYAN MISHRA, J.
( Per: Hon’ble Ram Manohar Narayan Mishra, J)
1. Heard Sri Badar Iftikhar and Sri Sajjad Hussain, learned counsel for the petitioners and Sri Bipul Kumar Singh, learned State Counsel for the State- opposite parties no.1 and 2.
2. On the request of learned counsel for the parties, the matter has been heard finally and the same is being decided at the admission stage.
3. In view of the proposed order, notice to opposite party no.3 is hereby dispensed with.
4. By means of an instant petition under Article 226 of the Constitution of India, the petitioners have prayed for following relief(s):-
“I. A writ, order or direction in the nature of Certiorari for quashing the impugned F.I.R registered at case crime No.231/2026 u/s 352, 351(3), 324(4) B.N.S.(504, 506,427 IPC) of P.S Raniganj Distt Pratapgarh, as contained in Annexure No.1 to this writ petition.
II. A writ, order or direction commanding the opposite parties not to proceed, prosecute or arrest the petitioners on the basis of impugned F.I.R.”
5. Learned counsel for the petitioners has submitted that according to version of complainant, Sabit Ali, the incident occurred on 3/6/2026 at 01:30 PM, the informant was cultivating his land by tractor which he had purchased through sale deed which was surrounded by the boundary wall. Meanwhile, his neighbors, the present petitioners came and intervened and abused him by calling name of his mother and sister and as asked him to stop cultivating the land. When the informant claimed his right to cultivate the land, they became violent and started threatening him and also broke the boundary wall deliberately. When informant screamed, the accused persons walked away by hurling threats to life. The FIR was lodged under sections 352, 351(2) and 324 (4) B.N.S. on 3/6/2026 at 22:32 hours against the petitioners.
6. Learned counsel for the petitioners next submitted that in fact the informant and his associates had forcibly tried to occupy the land measuring 0.031 hectare of Gata No. 143 which belongs to the petitioner and when it was objected to by the petitioners, the informant and his associates started abusing and threatening the petitioners, whereupon one Mohammad Salman, the son of petitioner no.1 moved an application to the police officials of Police Station Raniganj as well as Police Station Pratapgarh on 3/6/2026 but of no avail. The instant FIR is based on false and fabricated facts and the same has been lodged by opposite party no.3 to shield himself. No specific allegation has been made with regard to alleged offence against the petitioners. The alleged offence are punishable up to seven years years and arrest is not required in view of provision of section 41 CrPC (now 35 B.N.S.S). Even then the local police is adamant to arrest the petitioners due to ulterior motive and the petitioners apprehends imminent the danger of arrest. The offences are non-cognizable under the provision 155 (2) CrPC. The police is not competent to investigate the case without orders of magistrate having jurisdiction.
7. Learned counsel for the petitioners placed reliance on a Single Bench judgment of this Court in Raman Sahni Vs. State of U.P. passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 1710 of 2024. In the aforesaid case, anticipatory bail application was moved by the applicant in Case Crime No.124 of 2021 under Sections 2 and 3 of U.P. Gangster and Anti-Social Activities ( Prevention) Act 1986, Police Station Kotwali, District Sitapur. This court has observed as under:-
“3. At the very outset, the objection regarding the maintainability of the instant application are raised in two folds. One that the applicant has moved this application directly to this Court, which is not maintainable as per the law laid down in case of Ankit Bharti Vs. State of U.P. anothers 2020 SCC OnLine All 1949 and secondly, in light of the provision of sub-section 6(a)(b) of section 438 of Cr.P.C. as amended by U.P. State legislature namely, U.P. State Amendment 2019, (Uttar Pradesh Amendment) Act 2018 (U.P. Act No. 4 of 2019) (hereinafter referred to as ‘Act 2018, U.P. Act No. 4 of 2019’) the benefit of provision of anticipatory bail is available in the matter pertaining to Gangster Act.
4. For summarising the issue, two questions can be formulated;
1- Whether, the anticipatory bail application could directly be filed before this Court, under the facts and circumstances of the present case?
II- Whether, in light of the repealment of Criminal Procedure Code, 1973 (hereinafter referred to as ‘Cr.P.C. 1973′) and subsequently, the re-enactment of BNSS 2023(hereinafter referred to as ‘Sanhita 2023’), the Code of Criminal Procedure (Uttar Pradesh Amendment) Act 2018 (U.P. Act No. 4 of 2019) with presidential assent, would stand repealed?”
8. While answering the reference, it is held that the entertainment of an application directly by the High Court is for the consideration of the Hon’ble Judge before whom the petition is placed. Meaning thereby, that there is no absolute bar that a person who has apprehension of arrest, cannot approach the High Court directly rather this will depend on the facts and circumstances of the case, on the basis of which the Hon’ble Judge will apply its discretion and would take decision regarding the maintainability of such anticipatory bail application.
11. Now, most importantly, the second objection is that the riders of section 6(a)(b) of the Act 2018-(U.P. Act No. 4 of 2019) is still enforceable/applicable after the repealment of Cr.P.C. 1973 and re-enactment of ‘Sanhita 2023.’ The Code of Criminal Procedure was enacted by the parliament in 1973 and the Assembly of State of U.P. came with an amendment and by virtue of the same, the provision of anticipatory bail as provided under section 438 of Cr.P.C. 1973 was suspended, detecting the peculiar circumstances emerges at that point of time, in the State of Uttar Pradesh. After a period of about 40 years, considering the change in the circumstances, the provision of anticipatory bail as provided in the Cr.P.C. 1973, was re-introduced with certain objective/riders, namely, ‘the Act 2018 (U.P. Act No. 4 of 2019).’ The riders which basically envisaged in sub-section 6 of section 438(1) of the Cr.P.C. 1973, is reproduced hereinunder:-
“(6) Provisions of this section shall not be applicable,-
(a) to the offences arising out of,-
(ii) the Narcotic Drugs and Psychotropic Substances Act, 1985;
(iii) the Official Secret Act, 1923;
(iv) the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.
(b) in the offences, in which death sentence can be awarded.”
13. The Sanhita 2023 came into force with effect from 1.7.2024 and while deriving the power provided under section 1(3) of the Sanhita 2023, the Central Government issued notification on 1.7.2024. Now, what are saved and are repealed, are provided under section 531 of Sanhita 2023. Section 531 is reproduced as follows:-
“531. Repeal and savings.- (1) The Code of Criminal Procedure, 1973 (2 of 1974) is hereby repealed.
(2) Notwithstanding such repeal-
(a) if, immediately before the date on which this Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure. 1973 (2 of 1974), as in force immediately before such commencement (hereinafter referred to as the said Code), as if this Sanhita had not come into force:
(b) all notifications published, proclamations issued, powers conferred, forms provided by rules, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the said Code and which are in force immediately before the commencement of this Sanhita, shall be deemed, respectively, to have been published, issued, conferred, specified, defined, passed or made under the corresponding provisions of this Sanhita;
(c) any sanction accorded or consent given under the said Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Sanhita and proceedings may be commenced under this Sanhita in pursuance of such sanction or consent.
(3) Where the period specified for an application or other proceeding under the said Code had expired on or before the commencement of this Sanhita, nothing in this Sanhita shall be construed as enabling any such application to be made or proceeding to be commenced under this Sanhita by reason only of the fact that a longer period therefor is specified by this Sanhita or provisions are made in this Sanhita for the extension of time.”
25. It is not out of place to mention here that on 16.7.2024, the Government of India, Department of Law and Justice issued a notification in-pursuance of section 8 of General Clauses Act 1897 (hereinafter referred to as ‘Act 1897’), which says that any reference of IPC, Cr.P.C. and Evidence Act or any provision thereof, is made in any act made by Parliament or by the Legislature of State; Ordinance; Regulations made under Article 240 of Constitution of India; President’s order; Rules Regulations Order or notification made under any Act, Ordinances or Regulations, such reference shall respectively be read. The notification dated 16.7.2024 is reproduced hereinunder:-
“MINISTRY OF LAW AND JUSTICE
(Legislative Department)
NOTIFICATION
New Delhi, the 16th July, 2024,
S.O. 2790(E). In pursuance of section 8 of the General Clauses Act, 1897 (10 of 1897), the Central Government hereby notifies that where any reference of the Indian Penal Code (45 of 1860), or the Code of Criminal Procedure, 1973 (2 of 1974) or the Indian Evidence Act, 1872 (1 of 1872 or any provisions thereof is made in any-
(a) Act made by Parliament, or
(b) Act made by the Legislature of any State;
(c) Ordinance,
(d) Regulations made under article 240 of the Constitution;
(e) President’s order,
(f) rules, regulations, order or notification made under any Act, Ordinance or Regulation,
for the time being in force, such reference shall respectively be read as the reference of the Bharatiya Nyaya Sanhita, 2023 (45 of 2023) (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023) (BNSS) or the Bharatiya Sakshya Adhiniyam, 2023 (47 of 2023) (BSA), and the corresponding provisions of such law shall be construed accordingly.
37.This Court has also noticed the judgment and order rendered in the case of Deepu and Others vs. State of U.P. and Others 2024 SCC OnLine All 4289, wherein, the coordinate division bench of this Court has summarized the issue regarding the effect of repealment of the IPC and Cr.P.C. and re-enactment of BNS and BNSS. For the reference paragraph no. 16 of the above-said judgment is reproduced hereinunder:-
“On the basis of above analysis, this Court is also summarising the law regarding effect of repealing the IPC and Cr. P.C. by BNS and BNSS respectively and same is being mentioned as below:
(1) If an FIR Is registered on or after 1.7.2024 for the offence committed prior to 1.7.2024, then FIR would be registered under the provisions of IPC but the Investigation will continue as per BNSS.
(ii) In the pending investigation on 01.07.2024 (on the date of commencement of New Criminal Laws), investigation will continue as per the Cr. P.C. till the cognizance is taken on the police report and if any direction is made for further investigation by the competent Court then same will continue as per the Cr. P.C.;
(iii) The cognizance on the pending Investigation on or after 01.07.2024 would be taken as per the BNSS and all the subsequent proceeding Including enquiry, trial or appeal would be conducted as per the procedure of BNSS.
(iv) Section 531(2)(a) of BNSS saved only pending investigation, trial, appeal, application and enquiry, therefore, if any trial, appeal, revision or application is commenced after 01.07.2024, the same will be proceeded as per the procedure of BNSS.
(v) The pending trial on 01.07.2024, if concluded on or after 01.07.2024 then appeal or revision against the judgment passed in such a trial will be as per the BNSS. However, if any application is filed in appeal, which was pending on 01.07.2024 then the procedure of Cr. P.C. will apply.
(vi) If the criminal proceeding or chargesheet is challenged before the High Court on or after 01.07.2024, where the investigation was conducted as per Cr. P.C. then same will be filed u/s 528 of BNSS not u/s 482 Cr. P.C.”
46. It is culled out from the above-said discussions that when a conflict arises regarding the applicability of provisions of parliamentary law and State law over the same subject matter then, it is apt to say that the power of a legislative body to repeal a law is co-extensive with its power to enact the law and the effect of repealing of the statue, is to obliterate completely from the records of the parliament, as if, it was never in existence. If a lesilature is repealing any act, the same is well within the power to save any right, privilege or remedy provided under the repealed statute. In fact, this balances with the constitutional principle of ‘legislative supremacy’ and ‘coherence.’ Further, the constitutional mandates of cooperative federalism and rule of law is also one of the beacon of light to come to the conclusion regarding the existence and applicability of the law enacted by the parliament and the state legislature.
47. So far as the present matter is that the Cr.P.C. 1973 has been repealed and there is no existence of the Cr.P.C. 1973 and the State amendments made in the erstwhile Cr.P.C. 1973 does not find place in the saving clause of newly enacted Sanhita 2023. This Court is also noticed the stand of the State Government as is said in the counter affidavit that the State of U.P. has proceeded with State amendment regarding the anticipatory bail in Sanhita 2023 and the draft amendment is also prepared, which clearly shows that the State Government is also aware of that after the repealment of the earlier Cr.P.C. 1973, the amendment by way of Act No. 4 of 2019 is not enforceable.”
8. On the basis of dictum of this Court in Raman Sahani (supra), learned counsel for the petitioners submitted that in the said case this Court has held that on account of repeal of Cr.P.C. 1973 by Bharatiya Nagarik Suraksha Sanhita 2023, the UP State Amendment Act no. 4 of 2019 whereby certain amendments are made under section 438 Cr.P.C. to the extent that it was made applicable to the State of UP with certain restrictions is not enforceable, meaning thereby section 438 CrPC which was replaced by section 482 BNSS, the U.P. State Amendment Act made under Section 438 CrPC will not be applicable after commencement of BNSS 2023 and section 482 BNSS will be, at present, applicable to all over country including State of UP. and restrictions made applicable to the provision of Section 438 CrPC by U.P. State Amendment Act will no longer hold good.
9. He next submitted that on the same analogy, a Notification issued by the Uttar Pradesh State Government dated 31/7/1989 in exercise of power under Section 10 of the Criminal Law ( Amendment) Act 1932 which is a central legislation, amending the first schedule of CrPC and making section 506 IPC, a cognizable offense may be deemed to have lapsed after commencement of BNSS, 2023 wherein it is provided under section 53 (1) that Code of Criminal Procedure 1973 (2) of 1974 is hereby repealed.
10. With above submissions learned counsel for the petitioners submitted that on commencement of BNSS, 2023 , the offence under Section 351(2) BNSS which is analogous to Section 506 IPC will be treated as non-congnizable offence as provided in first schedule of BNSS which provides that the offence under Section 351 BNSS as bailable and non- congnizable and if this is the state of Law, a police officer is not competent to investigate the case and and to file chargesheet in respect of the said offence without orders of the Magistrate passed under Section 155 (2) Cr.P.C. ( 174 BNSS) and the FIR lodged in the present case is liable to be quashed on this legal ground alone.
11. Per contra Shri Bipul Kumar Singh, learned A.G.A. has vehemently opposed the contention made by learned counsel for the petitioners and submitted that the dictum of this honorable Court in Raman Sahni‘s case (supra) is not applicable to the facts of the present case, as the said judgment was given in respect of applicability of UP State Amendment Act 2018 (UP Act No.4 of 2019) under section 438 CrPC and its effect on commencement of Bharatiya Nyaya Suraksha Sanhita 2023. It was held therein that anticipatory bail application could directly be filed before the high court under the facts and circumstances of the case and Code of Criminal Procedure (U.P. Act No.4 of 2019) passed by State Legislature would stand impliedly repealed on commencement of BNSS 2023. However, it is always open to the State Legislature to bring the State Amendment in newly enacted Sanhita 2023. In the present case applicability and effect of Notification dated 31/7/1989 issued by U.P. State Government in exercise of power under section 10 of the Criminal Law Amendment Act 1932 after commencement of BNSS, 2023 is attracted.
12. To buttress his submissions, learned A.G.A. has placed reliance of Division Bench Judgement of this Court in the case of Vinay Kumar Pandey Vs. State of U.P. and 4 others passed in Criminal Misc. Writ Petition No.13827 of 2024. In the aforesaid judgment this court has observed as under:-
“4. Learned counsel for the petitioner submits that the impugned F.I.R. is bad in the eyes of law because Section 351(2) of the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as “B.N.S.”) (corresponding to Section 506 I.P.C.) is non-cognizable offence as per the first Schedule of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as “B.N.S.S.”) for which only an N.C.R., under Section 174 B.N.S.S., can be registered and investigation of non-cognizable offence cannot be conducted without the permission of Magistrate under Section 174(2) B.N.S.S.
6. Per contra, learned A.G.A. has submitted that though in the first Schedule of B.N.S.S. Section 351(2) B.N.S. is non-cognizable offence, but in the corresponding Section 506 I.P.C., the State Government in exercise of its power under Section 10 of the Criminal Law (Amendment) Act, 1932 has issued a notification dated 31.7.1989, making Section 506 I.P.C. a cognizable offence. Therefore, in view of Section 531(2)(b) of B.N.S.S., such amendment in Section 506 I.P.C. is saved and the same will continue to be cognizable offence in view of the State amendment. Therefore, Section 351(2) B.N.S. is cognizable offence in the State of U.P. in view of the State notification dated 31.7.1989. In support of his contention, learned A.G.A. has relied upon the judgement of the Apex Court in the case of Aires Rodrigues vs. Vishwajeet P. Rane and others; (2017) 11 SCC 62 as well as judgement of Single Bench of this High Court in the case of Rakesh and others vs. State of U.P.; Application u/s 482 No. 23628 of 2021, delivered on 29.11.2021.
7. After hearing learned counsel for the parties two questions have arisen for determination (i) whether Section 351(2) B.N.S. is a cognizable offence in U.P., in view of the notification dated 31.7.1989 and the impugned F.I.R. was correctly lodged under Section 173 B.N.S.S. instead of Section 174 B.N.S.S. and; (ii) whether the impugned F.I.R. suffers from mala fide as civil and criminal proceedings have been pending between the parties.
8. For deciding first question, it would be relevant to consider Section 531 B.N.S.S. which saves the notification issued under Cr.P.C. even after enforcement of B.N.S.S.; Section 8 of the General Clauses Act which prescribes the construction of references in any enactment regarding the repealed Act as well as Section 10 of the Criminal Law (Amendment) Act, 1932, which permits the State legislature to amend the Cr.P.C. Section 531 B.N.S.S., Section 8 of General Clauses Act and Section 10 of Criminal Law (Amendment) Act 1932 are being quoted as under:-
” Section 531 of B.N.S.S.:- Repeal and savings. –
(1) The Code of Criminal Procedure, 1973 (2 of 1974) is hereby repealed.
(2) Notwithstanding such repeal-
(a) if, immediately before the date on which this Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), as in force immediately before such commencement (hereinafter referred to as the said Code), as if this Sanhita had not come into force;
(b) all notifications published, proclamations issued, powers conferred, forms provided by rules, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the said Code and which are in force immediately before the commencement of this Sanhita, shall be deemed, respectively, to have been published, issued, conferred, specified, defined, passed or made under the corresponding provisions of this Sanhita;
(c) any sanction accorded or consent given under the said Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Sanhita and proceedings may be commenced under this Sanhita in pursuance of such sanction or consent.
(3) Where the period specified for an application or other proceeding under the said Code had expired on or before the commencement of this Sanhita, nothing in this Sanhita shall be construed as enabling any such application to be made or proceeding to be commenced under this Sanhita by reason only of the fact that a longer period therefor is specified by this Sanhita or provisions are made in this Sanhita for the extension of time.
Section 8 of General Clauses Act:- Construction of references to repealed enactments.–
(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then reference in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
Section 10 of the Criminal Law (Amendment) Act:- 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, 188, 189, 190, 228, 295-A, 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 (5 of 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.”
9. From the perusal of Section 531(2) of B.N.S.S., it is clear that the notification issued under the Code of Criminal Procedure, 1973, which was in force immediately before commencement of B.N.S.S., shall be deemed to be issued under the corresponding provision of B.N.S.S.
11. The State of U.P., in exercise of its power under Section 10 of the Criminal Law (Amendment) Act, 1932 which is a central legislation, had issued notification dated 31.7.1989, amending the First Schedule of Cr.P.C. and making Section 506 I.P.C., cognizable offence if same is committed in any of the districts of the State of U.P. It is relevant to mention here that Section 10 of the Criminal Law (Amendment) Act, 1932, which is still in force, has authorized the State Government to make certain offences, including offence under Section 506 I.P.C., cognizable and non bailable. Therefore, amendment made by the State notification dated 31.7.1989 in Section 506 I.P.C., making it cognizable and non-bailable shall be deemed to be notification issued in respect of Section 351(2) B.N.S. For reference the U.P. State notification dated 31.7.1989 is being quoted as under:-
“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 supersession of the notifications issued in this behalf, the Governor is pleased to declare that any offence punishable under Section 506 of the India 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.”
12. The Apex Court also considered this issue in the case of Aires Rodrigues (supra) and held that the amendment made in Code of Criminal Procedure, 1998 will be deemed to be amendment made in Code of Criminal Procedure, 1973 and such amendment will be saved under Section 484 Cr.P.C., 1973. Paragraph Nos. 8 & 9 of the Aires Rodrigues (supra) is quoted as under:-
“8. Section 10 of the Criminal Law Amendment Act, 1932, under which the said Notification has been issued, is as follows:
“10. Power of State Government to make certain offences cognizable and non-bailable.?(1) The [State Government] [ Substituted for “Provincial Government” by A.L.O., 1950] may, by notification in the [Official Gazette] [ Substituted for “Local Gazette” by A.O., 1937] , declare that any offence punishable under Sections 186, 188, 189, 190, 228, 295-A, 298, 505, 506 or 507 of the Penal Code, 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] [ Substituted for “Provincial Government” by A.L.O., 1950] 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 Penal Code, 1860 shall be non-bailable.”
There is no dispute that the 1932 Act is a Central legislation and even today it is operative and power conferred under Section 10 can be exercised.
9. In these circumstances, merely because the 1898 Code has been repealed and replaced by the 1973 CrPC, could not affect the situation. Section 484 CrPC, 1973 as well as Section 8(1) of the General Clauses Act, 1897 saved a notification which may have been issued under CrPC of 1898. Section 8 of the General Clauses Act is as follows:
8. Construction of references to repealed enactments.?(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then reference in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.?
In these circumstances, we are unable to sustain the view taken in the impugned orders.”
13. This issue again came into consideration in a full Bench judgement of Allahabad High Court in the case of Mata Sevak Upadhyay vs. State of U.P.; Criminal Misc. Writ Petition No. 7215 of 1994, decided on 8.9.1995. In that case the full Bench held that Section 10 of the Criminal Law (Amendment) Act is valid and the State Government notification dated 31.7.1989, making Section 506 I.P.C. cognizable and non-bailable in exercise of power under Section 10 of the Criminal Law (Amendment) Act, is also valid. In this case, the full Bench has relied upon the judgement of the Apex Court in the case of Arnold Rodricks and another vs. State of Maharashtra and others; AIR 1966 SC 1788 as well as a Division Bench judgement of the Gujarat High Court in the case of Vinod Rao vs. State of Gujarat; 1980 SCC OnLine Guj 86 and observed in paragraphs No. 108, 109, 110 of Mata Sevak Upadhyay (supra) are quoted as under:-
“108. From this authority, it follows that to maintain the rule of flexibility, which is utmost necessary to run the administration, delegation of some powers, which are not essentially legislative in nature, is necessary. Legislature cannot sit every time to make law to cover all situation arising time to time, and, therefore, after the essential legislative policy having been laid down, the Legislature can leave to the State Government to make necessary changed in the interest of smooth administration. The Legislature has made offence under Section 506, IPC, and has also laid down the essential procedure for trial thereof. So far as the cognizability or bailability of that offence is concerned, the State Government is empowered to change the schedule under Section 10 of the Act of 1932 to make the offence cognisable or non-bailable depending on the exigencies of the administration. In view of the rule laid down in Arnold Rodrick‘s (supra), the power conferred on the State Government to amend the schedule to the CrPC is permissible. What is amended is not the offence which is declared by the Legislature in the exercise of essential legislative power. Amendment by virtue of Section 13 is such which does not override the essential legislative power.
109. For the reasons Section 10 of the Act of 1932 as well as the notification of August 2, 1989, both the held valid.
110. In the premises, Sections 3, 4, 7, 8 and 14 of the Act of 1989 and Section 10 of the Act of 1932 and notification No. 777/VIII-9-4 (2) (87), dated July 31, 1989, published in the U. P. Gazette (Extraordinary) Part IV, Section Kha, dated 2nd August, 1989, are held valid.”
17. This issue was also considered by the Apex Court in the case of Harishankar Bagla and another vs. State of Madhya Pradesh; (1954) 1 SCC 978. In this case, the issue was if the Act of the Parliament itself permits to issue an order with an effect of amending the central Act, then this amendment will not be deemed to be made by the State Government but the same is the legislated declaration of the central Act. This amendment will have effect notwithstanding any inconsistency therewith contained in any other enactment other than this Act. Paragraph No.21 of Harishankar Bagla (supra) is quoted as under:-
“21. Conceding, however, for the sake of argument that to the extent of a repugnancy between an order made under Section 3 and the provisions of an existing law, to the extent of the repugnancy, the existing law stands repealed by implication, it seems to us that the repeal is not by any act of the delegate, but the repeal is by the legislative act of Parliament itself. By enacting Section 6 Parliament itself has declared that an order made under Section 3 shall have effect notwithstanding any inconsistency in this order with any enactment other than this Act. This is not a declaration made by the delegate but the legislature itself has declared its will that way in Section 6. The abrogation or the implied repeal is by force of the legislative declaration contained in Section 6 and is not by force of the order made by the delegate under Section 3. The power of the delegate is only to make an order under Section 3. Once the delegate has made that order its power is exhausted. Section 6 then steps in wherein Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this Act. Parliament being supreme, it certainly could make a law abrogating or repealing by implication provisions of any pre-existing law and no exception could be taken on the ground of excessive delegation to the act of Parliament itself. There is no delegation involved in the provisions of Section 6 at all and that section could not be held to be unconstitutional on that ground.”
18. Therefore, in view of the law laid down by the Apex Court in the case of Hari Shankar Bagla (supra), even the central Act can be amended by the State in exercise of power under Section 10 of the Criminal Law (Amendment) Act, which itself is a central legislation and in case of inconsistency, assent of the President is not required in such notification.
19. From the above analysis, it is clear that the notification dated 31.7.1989, issued in exercise of power under Section 10 of the Criminal Law (Amendment) Act under the first Schedule of Cr.P.C., 1973, will be deemed to be issued for amending schedule-I of the B.N.S.S. making Section 351(2) B.N.S. (corresponding Section 506 I.P.C.) as cognizable and non bailable and such notification is already saved by Section 531(2) B.N.S.S. which is pari material of Section 484 of Cr.P.C., 1973. Therefore, in the State of U.P., Section 351(2) B.N.S. will remain cognizable and non bailable in view of the notification dated 31.7.1989 which was in force at the time of repealing the Cr.P.C. by B.N.S.S.
13. The Notification dated 31.7.1989 issued by the U.P. State Government in exercise of power under Section 10 Criminal Law Amendment Act 1932 was assailed for the first time in bunch petitions in the year 1994 and the matter was referred to Full Bench of this Court, which was decided in the case of Mata Sevak Upadhyay and another Versus State of UP and others, 1996, All. JIC 107 vide judgement dated 8.9.1995. In the aforesaid judgement, the Full Bench had undertaken thread-bare analysis and discussion of said Notification number 777/VIII-9 4(2)-87, dated July 31, 1989 making Section 506 IPC cognizable and non-bailable offense in terms of provision of Criminal Procedure Code 1898. In Criminal Procedure Code 1973 as well as Section 10 Criminal Law Amendment Act 1932, the Full Bench ultimately held that Section 10 Criminal Law Amendment Act 1932 is valid and U.P. State Government Notification dated 31.7.1989 is also valid. This court has observed as under:
“95. Sri L. P. Misra for petitioners apart from challenging the viras of the Act on the ground of being violative of Article 14, argues that the impugned notification dated August 2, 1989, which has been issued in exercise of the powers conferred by Section 10 of the Criminal Law Amendment Act. 1932 oriefly, the Act of 1932) is invalid.
96. There are two notifications of December 29, 1932 and August 2, 1389 which came to be issued in exercise of the powers conferred by Section 10 of the Act No. 1932. Whereas, the first notification was made applicable only to a few districts, mentioned therein, the second notification of August 2, 1989 which was issued in supersession of the notifications earlier issued in this behalf, states that the Governor is pleased to declare that any offence punishable under Section 508 of the Indian Penel Code (I.P.C.) when committed in any district of Uttar Pradesh, shall not-withstanding anything contained in the Criminal Procedure Code, 1973, be cognizable and non-bailable. From the second notification it is, therefore, clear that that was issued in supersession of the notification of December 29, 1932 and the effect of this notification is that the offence punish. able under Section 506, P.C when committed at any place through out the Uttar Pradesh shall notwithstanding anything contained in the Criminal Procedure Code, be cognizable and non-bailable. In the first schedule to the Criminal Procedure Code, 1973, the offence under Section 506 IPC is described as non-cognizable and ballable, but by virtue of Section 10 of the Act of 1932, the same has been declared for the entire Uttar Pradesh as cognizable and non-bailable by the notification of August 2, 1989. Section 10 of the Act of 1932 confers powers of the State Government to declare by notification the official gazette that an offence punishable under Section 506, I.P.C. inter alla when committed in any area specified in the notification, shall notwithstanding any anything contained in the Code of Criminal Procedure, 1898, be cognizable and non-ballable and there. upon the Coce of Criminal Procedure, 1989 shall while such notification remain in force, be deemed to be amended accordingly. The submission is that by the Act of 1932, en amendment was made in the Code of Criminal Procedure, 1898, which stood repealed by virtue of Section 484 of Code of Criminal Procedure 1973, which was assented by the President of April, 1, 1974. The Act of 1932 having been passed simply to amend the Cr.P.C. of 1898, the argument of Sri Misra is that the former could not survive beyond the life of the Cr.P.C. of 1998, which came to an and after being repealed in April, 1974. In short, he submits that the life of the Amending Act cannot be more than the Principal Act and that the Amending Act is co-extensive and co-terminus with the Principal Act and that Cr.P.C. of 1898 which was amended by the Act of 1932, having been repealed in April, 1974, the Act of 1932 could not have survived thereafter Srl Tulsi argues that it is a misnomer to say that the Act of 1932 is simply an Amending Act. He submits that the Act of 1932 is named as “The Criminal Law Amendment Act, 1932“, because that has made some amendment in the general body of Criminal Law and, In fact, the Act of 1932 is not only an Amending Act but a unique blend of substantive law as well as of the provisions making an amendment in the Cr.P.C., 1898 and that it having contained substantive provisions as well, cannot be said to be co-terminus with the Cr.P.C. of 1898 in which certain amendments were made, says Sri Tulsi. From perusal of the Act of 1932, the submission of Sri Tulsi appears to be correct that the said enactment is not merely an Amending Act but that is a blend of substantive provisions as well as the provisions amending. Cr.P.C. of 1898. So the Act of 1932 Is still on the statute book, notwithstanding the repeal of Cr.P.C. 1898,
97. Therefore, the contention of Srl Misra that impugned notifica tion of August 2, 1989, having been issued under a dead enactment is invalid, has to be rejected.
115. From this authority, it follows that to maintain the rule of Flexibility, which is utmost necessary to run the administration, delegation of some powers, which are not essentially legislative in nature, is necessary. Legislature cannot sit every time to make law to cover all situation arising time to time, and, therefore, after the essential legislative policy having been laid down, the legislature can leave to the State Government, to make necessary changed in the Interest of smooth administration. The legislature has made offence under Section 506, I. P. C., and has also led down the essential procedure for the trial thereof. So far as the cognizebility of bailability of that offence is concerned, the State Government is empowered to change the Schedule under Section 10 of the Act c/1932 to make the offence cognizable or non-bailable depending on the exigencies of the administration. In view of the rule laid down in Arnold pricks (store), the power conferred on the State Government to amend the Schedule to the Cr. P. C. is permissible. What is manded is not the offence which is declared by the Legislature in the exercise of essential exclusive power Amendment by virtue of Section 10 is such which does not over-ride the essential legislative power.
116. For the reasons, Section 10 of the Act of 1932 as well as the notification of August 2, 1989, both are held valid.
14. On the basis of aforesaid observation and findings of Full Bench, it is obvious that validity of Notification dated 31/7/1989 issued under Section 10 of Criminal Law Amendment Act read with first schedule of 1973 was upheld, notwithstanding the fact that under Section 10, Criminal Law Amendment Act 1932 the first schedule of Criminal Procedure Code 1898 has been referred. The Full Bench took into consideration the fact that Criminal Procedure Code 1898 was repealed and superseded by Criminal Procedure Code 1973, but later is a statute in para materia to former Code of 1998. The said Notification of 1989 has been made applicable to whole State of U.P. whereas a former Notification issued on 29.12.1932 in respect of certain districts of State only. Notification of 1989 provided that notwithstanding anything contained in the Criminal Procedure Code 1973, the offense punishable under section 506 IPC shall be cognizable and non-bailable, notwithstanding the fact that in first schedule of Code of 1973 as well as the first schedule of Bharatiya Nagrik Suraksha Sanhita 2023, the said offense has been indicated as non-cognizable and bailable. It is noteworthy that Section 351 (3) BNS 2023 is analogous to Section 506 IPC and Section 351 (3) BNS is exact reproduction of Section 506 IPC. It is significant to add that subsequent to Full Bench judgment of this court in Mata Sevak Upadhyay (supra), the aforesaid notification of U.P. Government number 777 dated 21/7/2019 were again challenged before this Court and the matter was decided by Division Bench of this court in Virendra Singh and others Vs State of UP and others , 2002 (45) ACC 609 decided on 1/8/2002, wherein it was held as under:-
“6. Section 10 of the Criminal Law m 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 the U.P. Gazette, Extra Part-4, e 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.
7. There is another reason also why the aforesaid notification of 1989 is illegal. The Cr.P.C. of 1973 is a Parliamentary en-actment. 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.”
15. On account of aforesaid Division Bench judgment of this Court an analogous situation created, because once the legality of the said Notification dated 31/7/1989 was once upheld by Full Bench in the judgment of Mata Sewak Upadhyay (supra), there was no occasion for the Division Bench to declare the said notification illegal and declare Section 506 IPC as bailable and non-cognizable offence as provided in first schedule of Criminal Procedure Code 1973. In the judgment of Division Bench in Virendra Singh (supra) neither the Full Bench judgment of this court in Mata Sewak Upadhyay (supra) was cited nor is distinguished.
16. Thus, we are of the considered opinion that the dictum of Division Bench in Virendra Singh (supra) may not hold good as a binding precedent and Mata Sewak Upadhyay (supra) being judgment of larger bench will still holds good as a binding precedent for this court, in-as-much as Mata Sevak Upadhyay (supra) was upheld by the Apex Court.
17. Hon’ble the Supreme Court delved on this issue in Aires Rodrigues Vs. Vishwajeet P. Rane and others, (2017) 11 SCC 62 wherein the question raised before the Bombay High Court was “whether Notification issued under Section 10 of the Criminal Law Amendment Act, 1932 (a Central legislation), declaring Sections 186, 188, 189, 228, 295-A, 298, 505 or 507 of the Penal Code, 1860 (45 of 1860) when committed in the Union Territory of Goa (now State), Daman and Diu, to be cognizable and Sections 188 or 506 IPC to be non-bailable when committed, in the said territory”.
18. The contention in support of the challenge was that it must be noted here that the Notification dated 27-6-1973 and corrigendum dated 5-7-1973 were issued in exercise of power under Section 10 of the said Act of 1932. Clause (b) of sub-section (2) Section 484 of the said Code of 1973 saves only the notifications issued under the said Code of 1898. The notifications issued under the said Act of 1932 were not saved. In any event, the effect of Notification dated 27-6-1973 read with corrigendum dated 5-7-1973 was that the said Code of 1898 stood amended and the offences punishable under certain sections of the Penal Code were made cognizable and non-bailable. The said Code of 1898 was repealed by the said Code of 1973 and under the said Code of 1973, Section 506 was made a non-cognizable and bailable offence. It is pertinent to note that prior to 27-6-1973, the offence punishable under Section 188 of the Penal Code was non-cognizable under the said Code of 1898. However, the said Code of 1973 made the said offence cognizable. Similarly, prior to 27-6-1973, in the State of Goa, the offence punishable under Section 295-A of the Penal Code was non-cognizable, but under the said Code of 1973, it was made cognizable. As stated earlier, the Notification dated 27-6-1973, had the effect of amending the said Code of 1898 for making the offence punishable under Section 506 of the Penal Code cognizable and non-bailable. On 1-4-1974, the said Code of 1898 was repealed. Under the Code of 1973, the offence punishable under Section 506 of the Penal Code is non-cognizable. Therefore, from 01.04.1974 onwards, the offence punishable under Section 506 of the Penal Code is a non-cognizable offence.
19. Hon’ble the Supreme Court observed in the said judgment as under:-
“8. Section 10 of the Criminal Law Amendment Act, 1932, under which the hid Notification has been issued, is as follows:
“10. Power of State Government to make certain offences cognizal-le and non-bailable.-(1) The [State Government] may, by notification in the [Official Gazette]4, declare that any offence punishable under Sections 186, 188, 189, 190, 228, 295-A, 298, 505, 506 or 507 of the Indian Penal Code (45 of 1860), when committed in any area specified in the notification shall, g 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.”
There is no dispute that the 1932 Act is a Central legislation and even today it is operative and power conferred under Section 10 can be exercised.
9. In these circumstances, merely because the 1898 Code has been repealed and replaced by the 1973 CrPC, could not affect the situation. Section 484 CrPC, 1973 as well as Section 8(1) of the General Clauses Act, 1897 saved a notification which may have been issued under CrPC of 1898. Section 8 of the General Clauses Act is as follows:
“8. Construction of references to repealed enactments.-(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification. any provision of a former enactment, then reference in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.”
In these circumstances, we are unable to sustain the view taken in the impugned orders.
10. It is pointed out by the learned counsel for the appellant that a contra view has been taken by the High Courts of Gujarat, Delhi, Allahabad and Madras in Vinod Raov. State of Gujarat, Sant Ram v. Delhi State, Mata Sewak Upadhyay v. State of U.P.7, P. Ramakrishnan v. States respectively. He also pointed out that a different view has been taken by the High Court of Allahabad in Pankaj Shukla v. Anirudh Singh without noticing the Full Bench decision. of the High Court of Allahabad in Mata Sewak Upadhyay.”
20. With the above observations Hon’ble Apex Court approved the view taken by Full Bench of this Court in Mata Sewak Upadhyay (supra) and disapproved the view taken in Pankaj Shukla Vs. Anirudh Singh, S.H.O. reported in (2011) 2 ADJ 472 .
21. For the foregoing discussion we are of the considered opinion that the legal position has been correctly stated by the Division Bench in recent Judgement of Vinay Kumar Pandey (supra) in respect of the offence under Section 351(2) BNS which corresponds to Section 506 IPC and it lays down the correct state of Law and we are in agreement with the dictum of this Court in Division Bench Judgment in Vinay Kumar Pandey (supra) wherein it was whereby clarified that Notification dated 31.07.1989 issued in exercise of power under Section 10 of the Criminal Law (Amendment) Act under the first schedule of Cr.P.C. 1973 shall be deemed to be issued for amending the Schedule appended to BNSS as cognizable and non bailable and such notification is held saved by section 531 (2) BNSS which is pari materia to section 484 of Cr.P.C. 1973.Therefore, in State of U.P. offence under Section 351(2) BNS shall remain cognizable and non bailable in view of Notification dated 31.07.1989 which was in force at the time of repeal of Cr.P.C. ,1973 by BNSS. Consequently, the plea of the petitioners that FIR lodged in respect of alleged offence is liable to be quashed for reason that it is non-cognizable offence as provided in Schedule I of BNSS is not tenable due to foregoing discussion.
22. However, in the present context, it is pertinent to refer to the landmark judgment of the Hon’ble Supreme Court in Arnesh Kumar vs. State of Bihar, reported in (2014) 8 SCC 273, wherein the Apex Court, while expressing concern over routine and mechanical arrests in offences punishable with imprisonment up to seven years, laid down binding directions to safeguard the rights of the accused and to ensure that the liberty of citizens is not curtailed without due cause. The Hon’ble Supreme Court observed as under:-
“Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:
All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 Cr.P.C.;
All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);
The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, he shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”
23. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
24. The Court clarified that the above safeguards are not confined to offences under Section 498-A of the Indian Penal Code or the Dowry Prohibition Act but are applicable to all offences punishable with imprisonment up to seven years, whether with or without fine.
25. The said principles and directions have been recently reaffirmed and reiterated by the Hon’ble Supreme Court in Md. Asfak Alam vs. State of Jharkhand & Another, Criminal Appeal No. 2207 of 2023, decided on 31.07.2023, wherein the Court reiterated the binding nature of the guidelines laid down in Arnesh Kumar (supra), emphasising their continued applicability in similarly situated cases.
26. This Court has carefully perused the contents of the impugned F.I.R. and is of the considered opinion that, at this stage, it does disclose commission of a cognizable offence. Hence, in light of the authoritative pronouncements of the Hon’ble Supreme Court in State of Haryana & Others vs. Bhajan Lal & Others, 1992 Supp. (1) SCC 335; Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918; and Leelavati Devi @ Leelawati & Another vs. State of U.P., Special Leave to Appeal (Crl.) No. 3262/2021 decided on 07.10.2021, the prayer of the petitioner seeking quashing of the F.I.R. at the threshold stage cannot be acceded to.
27. Nonetheless, considering the nature of the allegations, the punishment prescribed, and the law laid down in the decisions of Arnesh Kumar and Md. Asfak Alam (supra), this Court deems it appropriate to direct that the Investigating Officer shall proceed strictly in accordance with law. In particular, before taking any coercive action such as arrest, the Investigating Officer shall mandatorily issue a notice under Sections 35 and 35(3) of the B.N.S.S., 2023 (which correspond to the erstwhile Section 41-A Cr.P.C.) and afford an opportunity to the petitioner to participate in the investigation. The petitioner, on his part, shall extend full cooperation in the ongoing investigation and shall appear before the Investigating Officer as and when required.
28. The writ petition is dismissed with the aforesaid directions and observations at the admission stage.
(Ram Manohar Narayan Mishra,J.) (Rajesh Singh Chauhan,J.)
August 7, 2026
dk/
