STATE OF KARNATAKA Vs. P GOPALAKRISHNA PANIKAR

JUDGEMENT

(1.) The State being aggrieved by the acquittal of the respondent by First Additional Chief Judicial Magistrate, Mysore in C.C. No. 2718/1983 in respect of the charge under Section 25(2) of the Antiquities and Art Treasures Act, 1972 (for short 'the Act') and Section 98 of the Karnataka Police Act has preferred this appeal.

(2.) The case of the prosecution is that on 9-5-1982 from 11 a.m. to 9 p.m. and on 10-5-1982 between 8 a.m. and 6 p.m. house No. 60,15th Cross, V.V. Mohalla, Mysore City belonging to the respondent was searched by charge sheet witness No. 1 K.S. Mandagar-P.W. 1 and that he found a number of antiques in the said house and he had committed a number of violations of the provisions of the Act, and therefore, those articles were seized and he lodged a complaint before the concerned police. During the course of the investigation of the case, it was found out that the respondent herein had kept for sale certain articles which were antiques without registering the same as such in the concerned office as provided by the Act and that though he had not been authorised to conduct business in stone idols which were antiques, he had conducted business in the said stone idols and that further in respect of Articles 39 to 145 he had not given satisfactory account for the possession of the same, and therefore, he had violated Sections 5 and 14(3) of the Act punishable under Section 25(2) of the said Act and that he had also committed the offence under Section 98 of the Karnataka Police Act.

(3.) It may be noticed that Section 26(2) of the Act puts a blanket bar against cognizance of the offences punishable under Section 2 or sub-section (3) of Section 25 of the Act by any Court except upon the complaint in writing made by an officer generally or specially authorised in that behalf,by the Central Government. As we are on the aspect of prosecution of the offender and also the Court taking cognizance of the same, we should take it that the word "complaint" in this Section has been used as defined in the Code of Criminal Procedure. Section 2(d) of the Code of Criminal Procedure defines the "complaint" as any allegation made orally or in writing to a Magistrate with a view to taking action under the Code that some person whether known or unknown, but does not include a police report. The way in which the word complaint is defined herein, would make it clear that any report made by the aggrieved person to the police requesting them to take action cannot be construed as complaint as defined in the Code. The learned Magistrate has taken cognizance of the offence only on the report made by the concerned police after investigation of the report made to them, Therefore, it is clear that the learned Magistrate has taken cognizance of the offence under Section 27(2) of the Act not on the complaint as enjoined in Section 26(2) of the Act but on the report of the police under Section 173, Cr. P.C. Therefore, it is clear that the very taking cognizance of the offence under the provisions of the Act is illegal. In that view of the matter, we do not propose to deal with the merits of the case so far as the violation of the provisions of the Act is concerned.