VAMAN NARAYAN GHIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ON the allegations of committing theft and illegally exporting the monuments and statues from various temples and other protected placed of archaeological importance, Police Station Vidhyadhar Nagar jaipur City arrested petitioner in criminal case bearing FIR No. 146/2003 under Sections 379, 411, 413, 414, 401, 120-B of the Indian Penal Code (for short `IPC') and 3/25(1), 5, 14/25(2) of the Antiquities & Art Treasures Act 1972 (for short `AAT Act') and submitted charge sheet in the court of Additional Civil Judge (Jr.Dn.) cum Judicial Magistrate No. 21, Jaipur City. The petitioner by moving application under Section 190 of the Code of Criminal Procedure (for short `CrPC') read with Section 26 AAT Act raised objections as to the jurisdiction of the Magistrate to take cognizance of offence under AAT Act. It was interalia stated in the application that in view of Section 26 of AAT Act, only an officer authorised by the Central Govt. could institute the complaint and investigation for the offences under AAT Act could not be undertaken by the Police. Therefore, the order taking cognizance for the offence under AAT Act was without jurisdiction. The order dated September 3, 2003 whereby the said application was dismissed by the learned Magistrate, has been assailed in criminal Revision Petition No. 1166/2003.

(2.) SINCE the case under Section 413 IPC is exclusively triable by Court of Sessions, learned Magistrate committed the case to the court of Sessions Judge Jaipur City. The committal order dated September 3, 2003 of the learned Magistrate has been impugned in Misc. Petition No. 1213/2003.

(3.) HAVING gone through the case diary I find that authorisation letter bearing No. 10-10/2003 dated September 2, 2003 as required by Section 26 AAT Act was issued by Director General, Indian Archaeology Survey Department, that perhaps escaped notice of the learned counsel for the petitioner. Even otherwise the contention so raised on behalf of petitioner appear to be without substance in view of the provisions contained in Sections 2(d), 2(n), 4(2) and 155(4) CrPC. Conjoint look at these provisions demonstrates that report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence, shall be deemed to be a `complaint' and all offence under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the provisions of CrPC but subject to any other enactment. Where a case is related to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. Since there is no provision in the AAT ACt in regard to investigation, enquiry or trial, the offences under the AAT Act have to be regulated by the procedure contained in Cr.P.C. Therefore for the purpose of non-cognizable offences under the AAT Act the charge sheet shall be deemed to be a complaint and police officer `a Complainant.' As the non- cognizable offences have been clubbed with cognizable offences, the case shall be deemed to be a cognizable case. Their Lordships of the Supreme Court in Praveen Chand Mody vs. State of A.P. (8), held that while investigating a cognizable offence and presenting a charge sheet for it, the police are not debarred from investigating any non-cognizable offence arising out of the same fact and including them in the charge sheet.