REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 1235-1237 OF 2007

M/S B.FINE ART AUCTIONEERS PVT. LTD. & ORS. … APPELLANTS

VERSUS

C.B.I. & ANR. … RESPONDENTS

JUDGMENT

B. SUDERSHAN REDDY, J.

1. These appeals are directed against the order of Delhi  

High  Court  whereby  the  High  Court  dismissed  the  Writ  

Petition filed by the appellants and refused to quash the FIR  

bearing  No.  RC  SID  2004  E  001  registered  by  the  CBI  

against the appellants.

2. In  order  to  appreciate  as  to  whether  the  impugned  

order suffers from any infirmity, few relevant facts leading  

to filing of these appeals may have to be noticed.

RELEVANT FACTS

3. The appellant No. 1—M/s Bowrings Fine Art Auctioneers  

Pvt.  Ltd.  had  auctioned  a  number  of  paintings  on  20th  

November,  2002.  Two  paintings  titled  “Reconciled”  by  

Frederico Andreotti and “The kill” by George D. Rowlandson  

were purchased by M/s Tony Haynes of England. The said  

two paintings were to be exported. The Customs authorities  

had detained these paintings on the suspicion that the said  

paintings were antiques within the meaning of the provisions  

of the Antiquities and Art Treasures Act, 1972 (hereinafter  

referred to as ‘the Act’). The said paintings were examined  

by  Deputy  Superintendent,  Archaeology  Customs),  

Archeological Survey of India on 7.1.2003 and having opined  

that the paintings were antiques, referred the matter to the  

Director  General,  Archaeological  Survey  of  India  for  final  

opinion under Section 24 of the Act. The said paintings were  

seized by the Department. This was followed by a complaint  

dated  6.1.2004  by  Superintendent,  Archaeologist  (Ant.)  

DG/ASI (addressed to the Superintendent of Police, CBI) in  

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which  it  is  inter  alia  stated  

that after examination of the said two paintings, they were  

found to be antique in nature. After receiving the complaint,  

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  

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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.

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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  

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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.

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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  

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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  

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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  

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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)   

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