- (1.) ON the allegations of committing theft and illegally exporting the monuments and statues from various temples and other protected placed of archaeological importance, Police Station Vidhyadhar Nagar jaipur City arrested petitioner in criminal case bearing FIR No. 146/2003 under Sections 379, 411, 413, 414, 401, 120-B of the Indian Penal Code (for short `IPC') and 3/25(1), 5, 14/25(2) of the Antiquities & Art Treasures Act 1972 (for short `AAT Act') and submitted charge sheet in the court of Additional Civil Judge (Jr.Dn.) cum Judicial Magistrate No. 21, Jaipur City. The petitioner by moving application under Section 190 of the Code of Criminal Procedure (for short `CrPC') read with Section 26 AAT Act raised objections as to the jurisdiction of the Magistrate to take cognizance of offence under AAT Act. It was interalia stated in the application that in view of Section 26 of AAT Act, only an officer authorised by the Central Govt. could institute the complaint and investigation for the offences under AAT Act could not be undertaken by the Police. Therefore, the order taking cognizance for the offence under AAT Act was without jurisdiction. The order dated September 3, 2003 whereby the said application was dismissed by the learned Magistrate, has been assailed in criminal Revision Petition No. 1166/2003.
(2.) SINCE the case under Section 413 IPC is exclusively triable by Court of Sessions, learned Magistrate committed the case to the court of Sessions Judge Jaipur City. The committal order dated September 3, 2003 of the learned Magistrate has been impugned in Misc. Petition No. 1213/2003. After the case was transferred for trial to the court of Additional Sessions Judge (Fast Track) No. 2, jaipur City, the SHO Police Station Jigna District Shiv Puri (M.P.) moved application seeking permission to take the petitioner in custody for the purpose of investigation of a criminal case instituted against the petitioner with Police Station Jigna. The order dated September 29, 2003 of the learned Additional Sessions Judge, Fast Track, No.1, Jaipur City, whereby the petitioner was given in the custody of SHO Police Station Jigna now P.S. Karera has been called in question in Misc. Petition No. 1142/2003. In Misc. Petition No. 75/2004 the order dated December 3, 2003 of learned Additional Sessions Judge (Fast Track) No.1, Jaipur City is under challenge whereby the application of the petitioner for supply of 358 coloured photographs of the statues/idols and 68 catalogues of idols/statues of American Auction House recovered at the instance of various accused was rejected. I have pondered over the rival submissions and carefully scanned the material placed before me. Since the questions involved in all these four petitions are interconnected, they are taken up together for disposal. REVISION PETITION NO. 1166/2003 It is contended on behalf of the petitioner that provisions contained in Section 26 AAT Act are mandatory and non compliance of these provisions would cause miscarriage of justice. Since the report lodged in the Police Station Vidhyadhar Nagar for the offences under AAT Act was itself illegal, no cognizance could be taken under Section 190(1)(b) CrPC. Provisions of Section 26 AAT Act only envisaged filing of complaint by a competent officer authorised by the Central Government and C.I. Police Station Vidhadhar Nagar who lodged the FIR was not competent to lodge the FIR and initiate investigation. Reliance is placed on Govind Mehta vs. State of Bihar (1), Ballabh Das Agarwala vs. J.C. Chakravorty (2), Union of India vs. Prakash Hinduja (3), M.D. Sakur vs. State (4), In re T.C. Nichodemus (5), Jaswant Singh vs. State of Punjab (6) and Badri Narayan vs. State of Rajasthan (7).
(3.) HAVING gone through the case diary I find that authorisation letter bearing No. 10-10/2003 dated September 2, 2003 as required by Section 26 AAT Act was issued by Director General, Indian Archaeology Survey Department, that perhaps escaped notice of the learned counsel for the petitioner. Even otherwise the contention so raised on behalf of petitioner appear to be without substance in view of the provisions contained in Sections 2(d), 2(n), 4(2) and 155(4) CrPC. Conjoint look at these provisions demonstrates that report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence, shall be deemed to be a `complaint' and all offence under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the provisions of CrPC but subject to any other enactment. Where a case is related to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. Since there is no provision in the AAT ACt in regard to investigation, enquiry or trial, the offences under the AAT Act have to be regulated by the procedure contained in Cr.P.C. Therefore for the purpose of non-cognizable offences under the AAT Act the charge sheet shall be deemed to be a complaint and police officer `a Complainant.' As the non- cognizable offences have been clubbed with cognizable offences, the case shall be deemed to be a cognizable case. Their Lordships of the Supreme Court in Praveen Chand Mody vs. State of A.P. (8), held that while investigating a cognizable offence and presenting a charge sheet for it, the police are not debarred from investigating any non-cognizable offence arising out of the same fact and including them in the charge sheet. In State of Orissa vs. Sharat Chandra Sahu (9), while interpreting the provision of Sub section (4) of Section 155 CrPC, the Apex Court indicated thus:- (Para12) "Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code of 1973. This was done to overcome the controversy about investigation of non-cognizable offences by the police without the leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language employed in sub-section (4) It is apparent that if the facts reported to the police disclose both cognizalbe and non-cognizable offences, the police would be acting without the scope of its authority in investigating both the offences as the legal fiction enacted in sub-section (4) provides that even non-cognizable case shall, in that situation, be treated as cognizable." Coming to the case law cited by learned counsel for the petitioner, find that in Govind Mehta vs. State of Bihar (supra) it was held that before taking cognizance, Magistrate must examine the facts of the complaint and determine whether his power is barred under any clause of Section 195 CrPC. In Ballabh Das Agarwala vs. J.C. Chakravorty (supra) it was indicated that initiating of legal proceedings, if not in accordance with law, the defect is not curable. Union of India vs. Prakash P. Hinduja (supra) was the case wherein it was observed that even if CBI committed an error or irregularity in submitting the chargesheet without the approval of CVC, the cognizance taken by the Special Judge on the basis of such charge sheet could not be set aside. In M.D. Sakur vs. State (supra) it was held that conviction without sanction of competent authority cannot be maintained. ;