M/S. B.FINE ART AUCTIONEERS PVT. LTD. & ORS.versusC.B.I. & ANR

                      [2011) 1 S.C.R. 563

    M/S. B.FINE ART AUCTIONEERS PVT. LTD. & ORS.                   A
                               V.
                         C.B.I. & ANR.
         (Criminal Appeal Nos. 1235-123.7 of 2007)
                      JANUARY 25, 2011
                                                                   B
              [B. SUDERSHAN REDDY, AND .
              SURINDER SINGH NIJJAR, JJ.]

     CONSTITUTION OF IND/A, 1950 ;·
       Articles 226 and 136- Jurisdiction under- Two paintings
                                                                   c
  seized by AS./. - F.l.R. registered by CBI for offences
  punishable u/s 120-B /PC and uls 25 read with s.3 of
  Antiquities and Art Treasures Act, and charge-sheet filed -
  Writ petition before High Court seeking to quash the FIR and
  the charfje-sheet-Held : After Iegistration of FIR, CBI made. D
  detailed investigation in· the matter and also filed charge-sheet
  -Trial court having taken .cognizance o; offences has framed ·
  charges against al! concerned - High court"rightly ·refused to
· exercise its discretion u.nder Article 226 .:.on fpcts and in the
  circumstances, it is not possible at this stage to quash the FIR E
  and the Court is not inclined to exercise discretion under
  Artie/(! 136 -Trial court would proceed to consider ·as to .
  whether the paintings in question are antiquities as· alleged
  by prosecution -Antiquities and Art Treasures Act, 1972-ss.
  3 and 25 -Penal Code, 1860 -s. 120-B                              F
    . Two paintings auctioned by the appellant company
 and purchased by tWo foreign nationals were seized by
 Archaelogical Survey of India, as it found the same to be
 antique in nature. A complaint was made to the CBI,
 which prima facie found the commission of offence u/s · G
 3 punishable u/s · 25(1) of the Antiquities and Art
 Treasures Act, 1972, ·and. registered an FIR on 29.1.2004
 for offences punishable u/s .120-B IPC and s.25(1) read
 with s.3 of the Act, and after investigation filed charge- H
                             563
    564      SUPREME COURT REPORTS            [2011] 1 S.C.R.


A sheet on 28.4.2004 against the appellants and the two
  foreign nationals. Thereafter the appellants filed Writ
  Petition No. 16598 of 2004 in the High Court challenging
  the report of the Director General, ASI and confiscation
  of the said two paintings under the Customs Act. In the
B writ petition neither the CBI was made a party nor was
  the FIR/charge sheet challenged. The writ petition was
  disposed of by a consent order dated 24.3.2005 directing
  the competent authority to pass a fresh order. Again Writ
  Petitions (Crl.) Nos. 2103-05 of 2005 were filed seeking to
c quash the FIR mainly on the ground that the basis of the
  FIR, i.e. the earlier report of the ASI had been rendered
  redundant in view of the decision of the Division of the
  High Court made on 24.3.2005. The High Court dismissed
  the writ petition. Aggrieved, the auctioneers filed the
0 appeals.
          Dismissing the appeals, the Court
          HELD: ·
       1.1 It is pertinent to note that in the instant writ
E 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
F of India has been rendered redundant in view of the
  decision rendered by the Division Bench of the High
  Court by order dated 24.3.2005. There is no explanation
  whatsoever forthcoming from the appellants as to why
  they did not implead the CBI in Writ Petition (C) No. 16598 ~
G of 2004 and challenge the FIR though they were aware
  of the same. [Paras 7, 8, 10] [568-G-H; 569-B, E]
        1.2 It cannot be said 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. The High Court
H
  B.FINE ART AUCTIONEERS PVT. LTD. & ORS. v.           565
                 C.B.I. & ANR.
mainly observed that in view of the consen~us arrived at A
between the parties thereto, it will not be necessary for
the parties to give effect to the earlier report and "if a new
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 8
order is to be made by the Director General, ASI which
has not so far been passed. At any rate, all these pleas
may be advanced, if at all, available to the appellants, in
the pending criminal case. The observation made by the
High Court that it will not be necessary for the parties to C
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.
[paras 10] [569-G-H; 570-A-C]
     1.3 The jurisdiction of the High Court under Article D
226 to issue appropriate 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. The High Court rightly E
refused to exercise its discretion under Article 226 in
favour of the appellants. On the facts and circumstances,
this Court is not inclined to exercise discretion under
Article 136 of the Constitution of India to grant any relief
to the appellants. [para 11] [571-D-E]                       F
      1.4 It is evident from the record that after registration
of tJle first information report, the CBI made detailed
investigation in the matter and filed charge sheet for the
offence punishable u/s 25 (1) read with s. 3 of the Act. The
trial court having taken cognizance of offences framed G
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. On the
facts and in the circumstances and keeping in view the H
     566      SUPREME COURT REPORTS                 [2011] 1 S.C.R.


 A   progress made in the case, it is not possible at this stage
     to quash the very first information report. [paras 12-131
     [570-F-Hl
        1.4 It is made clear that it is for the trial court to
   consider as to whether the paintings in question are
 B antiquities as alleged by the prosecution, uninfluenced
   by the observations made in the impugned order of the ·
   High Court and as well as the observations made, if any,
   in the instant order. [para 15] [571-D-E]
 c       CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
     No. 1235-1237 of 2007.
          From the Judgment and Order dated 09.07.2007 of the
     High Court of Delhi at New Delhi· in Writ Petition (Crl.) No.
     2103-05 of 2005.                        ·
.D
         Tasneem Ahamdi, Sudhir Kumar Gupta, Manish Gupta
     and Anuj Kumar Ranjan for the Appellants.
         A. Mariarputham, T.A. Khan, P.K. Dey, Arvind Kumar
     Sharma and B.V. Balaram Das for the Respondents.
           The Judgment of the Court was delivered by
        B. SUDERSHAN REDDY, J. 1. These appeals are
   directed .against the order of Delhi High 9ourt whereby the High
   Court dismissed the Writ Petition filed by the appellants and
 F 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 relev~nt facts leading to filing of
 G 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
 H 20th November, 2002. Two paintings titled "Reconciled" by
                        -.
             B.FINE ART AUCTIONEERS PVT. LTD. & ORS. v.                  567
                C.B.I. & ANR. [B. SUDERSHAN REDDY, J.]

           Frederico Andreotti and "The kill" by George D. Rowlandson            A
           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           B
           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        c
           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 which it is inter alia stated
           that after examination of the said two paintings, they were found     D
           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
                                                                                 E
           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       F
           appellants filed Writ Petition (Civil) No. 16598 of 2004 in Delhi
           High Court challenging th~ 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
>"   --1   the Adjudicating Authority directing confiscation of the said two     G
           paintings under the Customs Act. In the said Writ Petition, the
           petitioner clearly admitted 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          H
    568      SUPREME COURT REPORTS                  [2011] 1 S.C.R.


A 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
B 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.
c         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.
D
         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
E   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
F 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
G 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 redundant in view of the
H
         B.FINE ART AUCTIONEERS PVT. LTD. & ORS. v.                569
            C.B.I. & ANR. [B. SUDERSHAN REDDY, J.]
       decision rendered by the Division Bench of the High Court vide     A
       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
                                                                          B
       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.
                                                                          c
            9. Shri A. Mariarµutham, 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        D
       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.

            10. A short question that arises for our consideration is E
       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 forthl;oming 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 F
       of Writ Petition (C) No. 16598 of 2004. It is not the case of the
       appellants that the FIR hao; ':oeen 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. G
       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 H
    570     SUPREME COURT REPORTS                   [2011] 1 S.C.R.
                                                                                 •
A · necessary for the parties to give effect to the earlier report and
    "if a new 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
                                                                                 •
                                                                                 '•

B 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
c   to the earlier report binds only the parties to the proceedings
    and admittedly,; the CBI has not been impleaded as party
    respond~nt in that Writ Petition.

        11. On the facts and circumstances, we are not inclined
  to exercise our discretion under Article 136 of the Constitution
D 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 writs is extra-
E ordinary, equitable and discretionary. Prerogative writs                       •
  mentioned therein m(ly 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.

F      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
G against all the concerned. The appellants have even filed              )-- •
  discharge application before the trial court on 21.8.2006. rt is
  not clear from the averments made in the Writ Petition as to
  the result of the said application.

       13. On the fact$ and in the circumstances, it is not possible
H at this stage to quash the very first information report, since
  B.FINE ART AUCTIONEERS PVT. LTD. & ORS. v.                 571
     C.B.I. & ANR. [B. SUDERSHAN REDDY, J.]

much water has flown after registration of the FIR by the CBI.       A

     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                B
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        C
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         D
of the nearing 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 p:iintings in question are
antiquities as alleged by the prosecution. The said question
may have to be decided by the trial court upon appreciation of E
the evidence that may be brought on record. The trial court s~all
consider the same uninfluenced by the observations madain.
t.he impugned order of the High Court and as well as the
observations made, if any, in this order.
                                                                     F
    16. For the aforesaid reasons, we do not find any merit in
these appeals. They are accordingly dismissed.

R.P.                                       Appears dismissed.