A full bench of the Bombay high court will decide if the state government can change the status of certain offences to cognisable and non-bailable by merely issuing a notification.
A division bench of justice BH Marlapalle and justice UD Salvi on Friday referred the matter to the full bench — comprising three judges — after noting contradictory views adopted by two different benches of the high court in two different matters.
The court came across the rulings while hearing petitions filed by city residents Manish Advilkar, Anil Gehi and Dinesh Dubey seeking to quash FIRs registered against them under section 506-II of the Indian Penal Code for allegedly issuing threats to kill complainants in their respective cases.
Relying on one of the judgments, Advilkar’s counsel Ayaz Khan contended that the police could not have registered an FIR as the offence under 506-II was non-cognisable and bailable.
Khan argued that the police could not have proceeded to investigate the matter without obtaining permission from the magistrate concerned.
The police had registered the FIR on the strength of a notification issued on October 4, 1962, under section 10 of the Criminal Law Amendment Act, 1932.
It empowered the state governments to convert 10 specific offences, including 506-II into cognisable and non-bailable.
The counsel argued that the state government had lost its power under this provision as the Criminal Procedure Code (CrPC) of 1898 was replaced by the CrPC of 1973, which lists 506-II as a non-cognisable and bailable.
The state government opposed the petitions relying on another judgment of the HC, and contended that the provision in the 1932 legislation had not been repealed.
The court has referred the matter to a full bench for deciding whether the state government had the power to issue a notification under section 10 of the Criminal Law Amendment Act after April 1, 1974 — the day the CrPC of 1973 came into force.