M/S B.Fine Art Auctioneers P.Ltd. & Ors vs C.B.I. & Anr

further verification was conducted by the CBI. On

verification of facts, the CBI found prima facie the

commission of offence under Section 3 of the Act punishable

under Section 25(1) of the said Act. The CBI accordingly

registered the FIR on 29.1.2004 under Section 120B, IPC

read with Section 25(1) read with Section 3 of the Act. The

CBI has after investigation filed the charge sheet against

the appellants company and two foreign nationals who

purchased the said paintings in the auction.

4. Be it noted that after the filing of charge sheet, the

appellants filed Writ Petition (Civil) No. 16598 of 2004 in

Delhi High Court challenging the report of Director General,

ASI and for directing the Customs authorities not to

proceed in the matter on the basis of the order dated

22.9.2004 passed by the Adjudicating Authority directing

confiscation of the said two paintings under the Customs

Act. In the said Writ Petition, the petitioner clearly admitted 4 the factum of CBI registering

FIR and copy of the said FIR was also made available for the

perusal of the Court. It may be noted that by the time the

said Writ Petition came to be filed, CBI had filed its charge

sheet on 24.08.2004 yet the petitioner had not chosen to

challenge the FIR and the charge sheet filed by the CBI. The

said Writ Petition was disposed of by a consent order

directing the competent authority to pass a fresh order on

the basis of fresh report submitted by a fresh Committee. It

was agreed by the Archaeological Survey of India in that

Writ Petition to reconstitute a Committee for the

examination of the paintings and to pass a fresh order in

regard to the matter in controversy. It may also be noted

that CBI was not even impleaded as a party respondent in

the Writ Petition.

5. That in compliance of the order dated 24.03.2005, a

Committee consisting of six members was constituted to

examine the said paintings. The Committee gave a fractured

verdict due to which the competent authority could not give

a final opinion.

5

6. The appellants again

moved another Writ Petition (Civil) No. 5656 of 2006 before

Delhi High Court seeking appropriate directions against the

ASI so as not to give effect to undated minutes of meetings

dated 26.7.2005, 2,5 & 16.08.2005 on various grounds with

which we are not concerned for the present in these

appeals.

7. The High Court vide order dated 28.4.2006, disposed of

the Writ Petition directing the Director General, ASI to pass

an order in terms of the decision of the Division Bench dated

24.3.2005 and granted stay of the prosecution till expiry of

30 days after the fresh determination/decision of Director

General, ASI. Thereafter Writ Petition (Crl.) Nos. 2103-05 of

2005 have been filed resulting in the impugned order. It is

interesting to note that in the present Writ Petition, the relief

prayed for is to quash the FIR and not the order passed by

the trial Court refusing to discharge the appellants from the

criminal case filed by the CBI. The Writ Petition is mainly

based on the ground that the basis of the FIR i.e. the earlier

report of Archaeological Survey of India has been rendered 6 redundant in view of the

decision rendered by the Division Bench of the High Court

vide order dated 24.3.2005. The High Court dismissed the

Writ Petition. Hence this appeal.

8. Ms. Tasneem Ahamdi, learned counsel for the

appellants strenuously contended that the FIR registered by

the CBI based on the earlier report of Archaeological Survey

of India has been rendered redundant. The basis of the FIR

does not survive in view of the order of the High Court dated

24.3.2005 and therefore, there cannot be any prosecution

on the basis of the earlier report of the ASI.

9. Shri A. Mariarputham, learned senior counsel appearing

on behalf of the CBI submitted that the conduct of the

appellants disentitles them for grant of any relief in these

appeals. It was submitted that on the date when the FIR

was lodged, there was sufficient basis and information based

on which the FIR has been registered and ultimately,

resulting in filing of the charge sheet by the CBI which

cannot be quashed at this stage.

7

10. A short question that

arises for our consideration is as to whether the appellants

are entitled for the relief to quash the very first FIR

registered by the CBI. There is no explanation whatsoever

forthcoming from the appellants as to why they did not

implead the CBI in Writ Petition (C) No. 16598 of 2004 and

challenge the FIR though they were aware of the same as is

evident from their own affidavit filed in the High Court in

support of Writ Petition (C) No. 16598 of 2004. It is not the

case of the appellants that the FIR has been registered by

the CBI without any proper intimation from the

Archaeological Survey of India. The contention that the basis

of the FIR does not survive in view of the judgment of Delhi

High Court in Writ Petition (C)No. 16598 of 2004 appears to

be untenable and unsustainable. A bare reading of the

judgment of the High Court does not support the submission

made by the learned counsel for the appellants. The High

Court mainly observed that in view of the consensus arrived

at between the parties thereto, it will not be necessary for

the parties to give effect to the earlier report and "if a new 8 report is passed, the earlier

report will not be given effect to". The earlier report has not

been set aside by the High Court and obviously to continue

its operation, a new order is to be made by the Director

General, ASI which according to the learned counsel for the

appellants is not so far passed. At any rate, all these pleas

may be advanced, if at all, available to the appellants, in the

pending criminal case. It is not necessary to restate that the

observation made by the High Court that it will not be

necessary for the parties to give effect to the earlier report

binds only the parties to the proceedings and admittedly,

the CBI has not been impleaded as party respondent in that

Writ Petition.

11. On the facts and circumstances, we are not inclined to

exercise our discretion under Article 136 of the Constitution

of India to grant any relief to the appellants. We are of the

opinion that the High Court rightly refused to exercise its

discretion under Article 226 of the Constitution of India in

favour of the appellants. The jurisdiction of the High Court

under Article 226 of the Constitution to issue appropriate 9 writs is extra-ordinary,

equitable and discretionary. Prerogative writs mentioned

therein may be issued only for doing substantial justice. No

person is entitled to claim relief under Article 226 of the

Constitution as a matter of course.

12. It is evident from the record that after registration of

the first information report the CBI made detailed

investigation in the matter and filed charge sheet for the

offence punishable under Section 25 (1) read with Section 3

of the Act. The trial court having taken cognizance of

offences framed charges against all the concerned. The

appellants have even filed discharge application before the

trial court on 21.8.2006. It is not clear from the averments

made in the Writ Petition as to the result of the said

application.

13. On the facts and in the circumstances, it is not possible

at this stage to quash the very first information report, since

much water has flown after registration of the FIR by the

CBI.

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14. Before parting with the

judgment it is necessary to state that the learned senior

counsel - Shri A. Mariarputham based on the Minutes of the

Expert Committee dated 12.04.2010 and the order of

Director General, ASI suggested that the prosecution of the

appellants may be confined only with regard to the painting

"Reconciled" which alone held to be antiquity. It was a fair

suggestion but the learned counsel for the appellants

expressed her reservation as regards the very validity of

said minutes and order of Director General and wanted the

question to be left open. We accordingly express no opinion

as regards the validity of the minutes and order dated

12.4.2010 of Director General, Archaeology. In the

circumstances, we wish to express no opinion on the same

except to observe that the defence of the appellants based

on the present report during the course of the hearing of

these appeals is left open.

15. We, however, make it clear that it is for the trial court

to consider as to whether the paintings in question are

antiquities as alleged by the prosecution. The said question 11 may have to be decided by

the trial court upon appreciation of the evidence that may be

brought on record. The trial court shall consider the same

uninfluenced by the observations made in the impugned

order of the High Court and as well as the observations

made, if any, in this order.

16. For the aforesaid reasons, we do not find any merit in

these appeals. They are accordingly dismissed.

...................................................... .....J. (B. SUDERSHAN REDDY)

NEW DELHI, ...........................................................J. JANUARY 25, 2011. (SURINDER SINGH NIJJAR) 12