Court: Supreme Court of India
Citations: 1979 SCC 2 322, 1979 CRI LJ 1346 , 1979 SCR 2 923 ,1979 SCR 1 923 . 1979 CRLJ 85 1346, 1979 AIR SC 1791 .
Coram: N.L. Untwalia and O. Chinnappa Reddy, JJ.
Theme: Protection of Antiquities and Art Treasure is the Fundamental Duty of Every Citizen and the State
Subject: The Antiquities and Art Treasure Act, 1972
Ø BRIEF FACTS OF THE CASE
1. On the intervening night of March 31, 1967 and April 1, 1967, two sandstone pillars of great antiquity, beauty and value were stolen from Suraj Kund temple, in Village Amin (District Karnal, Haryana). They were of the Sunga period (2nd Century B.C) and their present estimated value in the International Art Treasures’ Market is said to be around five hundred thousand American dollars.
2. A first information report (FIR 72 of 1967) was registered by the Police of Butana, District Karnal. The pillars were recovered on May 2, 1967. On completion of investigation a charge-sheet was filed on October 3, 1967 in the Court of the Ilaqa Magistrate at Karnal, against one Bali Ram Sharma and two others. The case ended in their acquittal on July 16, 1968.
3. During the pendency of the case one Narinder Nath Malik (N.N Malik) filed an application before the Magistrate alleging that he was a research scholar and requesting that he might be given custody of the two pillars to enable him to make a detailed study.
4. At the instance of H.L Mehra, the then Chief Judicial Magistrate, Karnal and a friend of N.N Malik, the learned Ilaqa Magistrate gave custody of the two pillars to N.N Malik on his executing a personal bond in a sum of Rs 20,000.
5. The order was written by H.L Mehra himself and signed by the Ilaqa Magistrate. The pillars remained in the custody of N.N Malik from March 1, 1968 to May 27, 1968, when N.N Malik purported to return them to the Court of the Ilaqa Magistrate, Karnal.
6. After the acquittal of Bali Ram Sharma and others, the pillars were handed over to the Lambardar of Village Amin. Later, it came to light that the pillars returned by N.N Malik were not the original pillars but fakes. There upon, FIR RC.2/71-CIA/SPE/CBI was registered at Delhi against N.N Malik and H.L Mehra under Section 120-B read with Sections 406 and 420 IPC. After completing the investigation, the CBI filed a charge-sheet R.C 2 of 1971 in the Court of Special Magistrate, Ambala, against N.N Malik and H.L Mehra for alleged offences under Section 120-B read with Sections 406 and 420, Indian Penal Code.
7. The charge-sheet was filed on December 30, 1972. On May 17, 1976, the learned Special Magistrate, Ambala, passed an order directing the framing of charges against N.N Malik and H.L Mehra. But, no charges were actually framed as the accused were not present in the Court.
8. On April 17, 1977, the Public Prosecutor filed an application under Section 494 CrPC for permission to withdraw the case against Malik and Mehra. The learned Special Magistrate, Ambala, by his order dated May 16, 1977, permitted the withdrawal of the case and discharged the accused.
9. Between May 1976 and May 1977 several other things happened and the Narang brothers, the appellants in the two appeals, made their appearance on the scene. It may be mentioned here, that of the three Narang brothers, Om Prakash alias Omi Narang had been living in London since 1970, Manohar Lal alias Manu Narang had been similarly living in London since July 1974 and Ram Lal Narang alone had been living in India. Ram Lal Narang was detained first under the MISA from September 1974 till he was released under orders of the High Court, and later, under the COFEPOSA from July 1, 1975 till after the revocation of the internal Emergency in March 1977.
10. The two genuine pillars which had been removed from Suraj Kund temple were traced and found in London in the warehouse of Messrs Spink & Co. It was suspected that Manoharlal Narang and Ramlal Narang had engaged Balkishan Rawal and Nathubhai Rawal of Delhi to make three sets of fakes and had exported the genuine pillars to London.
11. A FIR (R.C.4/76-CIU(A)/SPE) was registered by the Superintendent of Police, CIU (Antiquities, SPE/CBI, New Delhi) against Manohar Lal Narang and others, for alleged offences under Section 120-B IPC read with Section 411 IPC and Section 25(1) of the Antiquities and Art Treasures Act, 1972.
12. On June 26, 1976, N.N Malik made an application before the Chief Metropolitan Magistrate, Delhi, in case R.C 4/76-CIU(A)/SPE, New Delhi, purporting to be under Section 306 of the Code of Criminal Procedure, 1973, praying that he might be granted pardon. The application mentioned Sections 411, 406 and 420 IPC read with Section 120-B and Section 25(1) of the Antiquities and Art Treasures Act, 1972, as the offences involved.
13. The application was supported by the reply filed by the Superintendent of Police, CBI. On July 3, 1976, the Chief Metropolitan Magistrate, Delhi, granted pardon to N.N Malik. Before the grant of pardon the confessional statement of N.N Malik was got recorded by the Metropolitan Magistrate, Delhi.
14. Thereafter, on July 19, 1976, a charge-sheet (R.C 4/1976) was filed in the Court of the Chief Judicial Magistrate, Delhi, for offences under Section 120-B IPC read with Sections 420, 411 and 406 IPC and Section 25 of the Antiquities and Art Treasures Act, 1972.
15. The case was transferred to the Court of the Additional Chief Metropolitan Magistrate. On July 20, 1976, the Additional Metropolitan Magistrate issued process for the appearance of the three Narang brothers. The learned Magistrate also issued warrants for the extradition of Omi Narang and Manu Narang who were in London. Extradition proceedings were initiated in Britain at the instance of the Government of India.
16. The Metropolitan Magistrate, Bow Street, London ordered the detention of Omi Narang and Manu Narang pending the issue of warrants by the Secretary of State under Section 5 of the Fugitive Offenders Act.
17. A petition for the issue of the writ of habeas corpus ad subjiciendum was filed in the High Court of Justice, Queen’s Bench Division, London. The Divisional Court directed the release of Omi Narang and Manu Narang.
18. The Government of India filed an appeal to the House of Lords and on March 24, 1977, the appeal was allowed. Omi Narang and Manu Narang were finally extradited and brought to India on July 27, 1977.
19. Meanwhile internal Emergency was lifted in India in March 1977 and Ram Lal Narang was released. Almost immediately he filed a petition before the Additional Metropolitan Magistrate to drop the proceedings against him, to cancel the extradition warrants and to discharge the accused. The contention was that the entire investigation in FIR R.C.4/76 was illegal as a case on the same facts was already pending before the Ambala Court and that the Delhi Court acted without jurisdiction in taking cognizance of the case pursuant to a report of police based upon such illegal investigation. The learned Magistrate held that he was not competent to sit in judgment, as it were, over the order of his predecessor taking cognizance of the case. He, however, found that the conspiracy which was the subject-matter of the case before the court at Ambala and the conspiracy which was the subject-matter of the case before himself were one and the same, but, he held that the question as to which court should proceed with the case, was not for him to decide; it was a matter for the High Court to decide under Section 186 CrPC.
20. The learned Magistrate also noticed an application filed before him, after the conclusion of arguments, informing him that the case in the Court at Ambala against Malik and Mehra had since been withdrawn on May 16, 1977.
21. On June 21, 1977, two applications were field in the Delhi High Court under Section 482 CrPC, one by Ramlal Narang and the other on behalf of Omi Narang and Manu Narang who were still in England awaiting extradition. The applicants sought quashing of the orders of the learned Metropolitan Magistrate issuing process to them and warrants for the extradition of Omi Narang and Manu Narang. It was also sought to be declared that the entire investigation in R.C 4 of 1976 was illegal and the orders of the Chief Metropolitan Magistrate and the Additional Metropolitan Magistrate taking cognizance of R.C 4 of 1976 were illegal.
22. The grant of pardon to N.N Malik was questioned. It was also prayed that the proceedings before the Metropolitan Magistrate might be quashed. The petitions were admitted by the Delhi High Court on June 22, 1977, but ultimately dismissed on January 10, 1978, by a common judgment. Ramlal Narang having obtained special leave from this Court has filed Criminal Appeal 373 of 1978 and Omi and Manu Narang have preferred Criminal Appeal 374 of 1978.
Ø ISSUES RAISED
1. Whether the conspiracy which was investigated by the police and which investigation led to the filing of the charge-sheet in the Ambala case can be said to be the same as the conspiracy which was later investigated and which led to the filing of the charge-sheet in the Delhi Court?
2. What was the duty of the police on discovering that the conspiracy, which was the subject-matter of the earlier case, was part of a larger conspiracy?
3. Whether the police acted without jurisdiction in investigating or in continuing to investigate into the case and whether the Delhi Court acted illegally in taking cognizance of the case?
Ø ARGUMENTS BY THE APPELLANT’s ADVOCATES
· Shri Harjinder Singh, learned Counsel for the appellant in Criminal Appeal 373 of 1978 and Shri Ashok Sen, learned Counsel for the appellants in Criminal Appeal 374 of 1978 argued that the conspiracy and the overt acts which were the subject-matter of the two FIRs and the two charge-sheets were the same and, therefore, there was an implied bar to the power of the police to investigate into FIR R.C 4 of 1976 and the power of the Court at Delhi to take cognizance of the case upon the report of such information.
· It was submitted that the mere circumstance that some more persons were mentioned as involved or the mere circumstance that the property was said to have been recovered later would not affect the legal position. It was submitted that the gist of the conspiracy in both the cases was to obtain possession of the pillars. The offence of conspiracy relating to the obtaining of the pillars having been investigated and a charge-sheet having been filed in the Ambala Court, the police had no authority in law to start a fresh investigation under the CrPC by registering another FIR and to submit a charge-sheet in the Delhi Court for the very same offence. That was an unwarranted interference by the police with the proceedings pending in the Court.
· The whole of the investigation subsequent to the filing of the charge-sheet in the Ambala Court was without jurisdiction and no material or fact gathered during the course of such illegal investigation could be used to find further proceedings.
· The Delhi Court was, therefore, in error in taking cognizance of offences which had already been investigated and which were the subject-matter of proceedings in another Court.
· It was also argued that the subsequent withdrawal of the case from the Ambala Court did not and could not confer jurisdiction on the Delhi Court. The withdrawal itself was an abuse of the process of the Court.
· The basic submission on behalf of the appellants was that the two conspiracies alleged in the two cases were but one.
Ø ARGUMENTS BY THE RESPONDENT’s ADVOCATE
· Shri Lalit, learned Counsel for the respondents urged that the conspiracy which was the subject-matter of the charge-sheet filed in the Delhi Court was not the same as the conspiracy which was the subject-matter of the charge-sheet filed in the Ambala Court. The circumstance that some of the conspirators were common and part of the case was the same did not make the two conspiracies identical with each other.
· There was, therefore, no question of any bar against the Delhi Court from taking cognizance of the case based upon the wider conspiracy merely because the Ambala Court had taken cognizance of the case based upon the narrower conspiracy.
· Shri Lalit also urged that the statutory right of the police to investigate into cognizable offences was not fettered and did not end with the submission of a charge-sheet to the Court. He submitted that the police had the right and indeed, the duty, to investigate into fresh facts coming to light and to appraise the Court of the same.
In the present case, occasions may arise when a second investigation started independently of
the first may disclose a wide range of offences including those covered by the first investigation. Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case, it is up to the prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior court to have the two cases tried together. The Magistrates themselves may take action suo motu. In the present case, there is no problem since the earlier case has since been withdrawn by the prosecuting agency. It was submitted to the Supreme Court that the submission of a charge-sheet to the Delhi court and the withdrawal of the case in the Ambala court amounted to an abuse of the process of the court. The judges did not think that the prosecution acted with any oblique motive. In the charge-sheet filed in the Delhi court, it was expressly mentioned that Mehra was already facing trial in the Ambala Court and he was, therefore, not being sent for trial. In the application made to the Ambala Court under Section 494 CrPC, it was expressly mentioned that a case had been filed in the Delhi Court against Mehra and others and, therefore, it was not necessary to prosecute Mehra in the Ambala court. The Court granted its permission for the withdrawal of the case. Though the investigating agency would have done better if it had informed the Ambala Magistrate and sought his formal permission for the second investigation, the judges were satisfied that the investigating agency did not act out of any malice. They were also satisfied that there has been no illegality. Both the appeals were, therefore, DISMISSED.
Ø PRESENT STATUS OF THE JUDGEMENT
Still the judgment is applicable.
According to Webster Dictionary, Heritage is an identity of a state. According to Cambridge English dictionary, Heritage features a belonging to the Culture of particular society, such as traditions, language or buildings that were created in the past and still have historical importance. According to UDHR, 1948, everyone’s Cultural right and Right to quality environment are recognized by Human rights law.
Preservation of Heritage is an inevitable responsibility of state as well as of the Citizens. To value and preserve the rich heritage of our composite culture is the Fundamental duty imposed on citizens under Art. 51 A (f) of Indian Constitution. Article 49 of Directive Principles of State Policy deals with protection of Monuments, Places and Objects of National importance. It is an obligation of state to protect them by declaring or under law made by Parliament.
The important enactment promulgated by the Central Government to protect and preserve Antiquities and Art Treasure is The Antiquities and Art Treasures Act, 1972. The recovered antiquities are protected by placing them in the state established Museums. The judiciary has also ordered to permit the use of antiquities for research purposes. Sometimes, there is misuse of the permission granted to the researchers. Therefore, it is our responsibility to protect and preserve the antiquities and art treasures which represent the rich heritage of our motherland.
 Article 27 of Universal Declaration on Human Rights, 1948.
Contributed by: Smita S Angadi (Ph.D. Student, Karnataka State Law University’s Research Centre Hubballi)
The views of the author are personal only. (if any)