Bajrang Lal Jain vs State of Chhattisgarh

T.P. Sharma, J.—This petition has been filed for quashing the order dated 28-1-2008 passed by the Additional Chief Judicial Magistrate, Surajpur in Criminal Case No. 126/2002 whereby learned Magistrate has framed the charge against the applicant u/s 414 of the Indian Penal Code and section 25 of the Antiquities and Art Treasure Act, 1972 (for short the "Act"), on the ground that in the absence of any complaint in writing made by an officer generally or specially authorised in this behalf by the Central Government cognizance of an offence punishable under sub-section (2) or sub-section (3) or Section 25 of the Act taken by the Court is illegal and therefore, the proceedings pending before the Court would amount to abuse of process of the Court. Heard counsel for the parties and perused the material available on record.

Counsel for the applicant submits that it is revealed from the case of the prosecution that the applicant was in possession of the idol of Lord Mahavir but there is nothing to show that the said idol was the stolen property. Trial Court has framed the charge u/s 414 of the Indian Penal Code and Section 25 of the Act. He further submitted that the Court is not competent to take cognizance of the offence u/s 25 (2) of the Act unless the complaint is made in writing by the officer authorised by special or general order in this behalf by the Central Government. According to, the counsel for the applicant, in the present case no officer authorised by the Central Government has filed any complaint against the applicant.

On the other hand, learned Additional Advocate General appearing for the respondent/State has supported the order impugned and submitted that according to the copy of the charge sheet it is apparent that the applicant has committed an offence punishable u/s 25 (2) of the Act and section 414 of the Indian Penal Code. He however submits that there may be an irregularity on the part of the trial Court in taking cognizance of the offence punishable u/s 25 (2) of the Act. It is further submitted on behalf of the respondent that according to the case of the prosecution the present applicant was found in possession of one antiquity of Lord Mahavir which was in existence for more than 100 years. The applicant is not holding the licence as per the provisions of Section 3 of the Act. The applicant is required to get the antiquity registered in accordance with the provisions of section 14 of the Act and in the absence of any such registration of the antiquity the applicant has committed an offence punishable under section, 25 (2) of the Act.

On perusal of the order impugned and copy of the charge sheet it is revealed that the applicant was found in possession of the antiquity which was in existence for more than hundred years without there being any registration of the same as required u/s 14 of the Act for the offence punishable u/s 25 (2) of the Act. Prosecution has not collected any evidence against the applicant relating to export or sale of the antiquity to show any violation of Section 3 of the Act.

Section 25 of the Act is a penal clause which reads as under:

Penalty.--(1) If any person, himself or by any other person on his behalf, exports or attempts to export any antiquity or art treasure in contravention of section 3, he shall, without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Customs Act, 1962 (52 of 1962) as applied by section 4, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine.

(2) If any person contravenes the provisions of section 5 or section 12 or subsection (2) or sub-section (3) of section 13 or section 14 or section 17, he shall be punishable with imprisonment for a term which may extend to six months or with fine or with both and the antiquity in respect of which the offence has been committed shall be liable to confiscation.

(3) If any person prevents any licensing officer from inspecting any record, photograph or register maintained u/s 10 or prevents any officer, authorised by the Central Government under sub-section (1) of section 23 from entering into or searching any place under that sub-section, he shall be punishable with imprisonment for a term which may extend to six months, or with fine or with both.

Legislature has prescribed the procedure for taking cognizance u/s 26 of the Act which reads as under:

Cognizance of offence.--(1) No person for an offence under sub-section (1) of section 25 shall be instituted except by or with the sanction of such officer of Government as may be prescribed in this behalf.

(2) No court shall take cognizance of an offence punishable under sub-section 2 or sub-section (3) of section 25 except upon complaint in writing made by an officer generally or specially authorised in this behalf by the Central Government.

(3) No court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any offence punishable under this Act.

Material collected by the prosecution shows that the applicant was found in possession of the antiquity without registration of the same and thereby violated the provisions of section 14/17 of the Act which is punishable under sub-section 2 of Section 25 of the Act. In accordance with sub-section 2 of section 26 of the Act the court can only take cognizance of the offence upon the complaint in writing made by an officer authorised by the special or general order in this behalf by the Central Government. No officer authorised by the Central Government has filed any complaint against the applicant, therefore, the court is not competent to take cognizance of the offence punishable u/s 25(2) of the Act. Cognizance taken by the Court for an offence u/s 25(2) of the Act is clearly in violation of sub-section (2) of Section 26 of the Act. Thus, the order impugned so far as it relates to taking cognizance of the offence u/s 25(2) of the Act is liable to be quashed. Consequently, the petition is partly allowed. The order impugned pertaining to taking cognizance of the offence u/s 25(2) of the Act is hereby quashed. It is however made clear that the proceedings for the offence u/s 414 IPC shall not be affected by this order.