Karnataka High Court
Sri. Yogesh vs State Of Karnataka on 16 August, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 1354 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 1354 OF 2022
BETWEEN:
1. SRI. YOGESH
S/O NAGARAJU
AGED ABOUT 36 YEARS
R/AT NO.976, 7TH CROSS
SUNNADAKERI
K R MAHAL
MYSURU CITY 570 004
2. SRI. SURESH BABU
S/O B R GOVINDARAJA SHETTY
AGED ABOUT 48 YEARS
R/AT NO.2744/10
MEDARAKERI, 4TH CROSS
CHAMUNDIPURA
MYSURU 570 004
Digitally signed by
3. SRI C. V. DATTA MURTHI
PADMAVATHI B K S/O LATE C. K. VENKATARAMUAIAH
Location: HIGH
COURT OF AGED ABOUT 52 YEARS
KARNATAKA R/AT CHINYA VILLAGE
NAGAMANGALA TALUK
MANDYA DISTRICT 571 810
...PETITIONERS
(BY SMT. SINDHU V., ADVOCATE FOR
SRI. CHIDANANDA N M., ADVOCATE)
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CRL.P No. 1354 of 2022
AND:
1. STATE OF KARNATAKA
BY KAMAKSHIPALYA POLICE
BANGALORE 560 079
REPRESENTED BY THE
SPECIAL PUBLIC PROSECUTOR
HIGH COURT BUILDING
HIGH COURT OF KARNATAKA
BENGALURU 560 001
...RESPONDENT
(BY SMT. K.P. YASHODHA, HCGP)
THIS CRL.P IS FILED U/S.482 CR.P.C BY THE ADVOCATE
FOR THE PETITIONERS PRAYING THAT THIS HONBLE COURT
MAY BE PLEASED TO QUASH THE PROCEEDINGS IN
C.C.NO.969/2016 (CR.NO.128/2015) (AT ANNEXURE-A)
INITIATED BY THE RESPONDENT, KAMAKSHIPALYA POLICE
STATION, BANGALORE WHICH IS PENDING ON THE FILE OF
THE 39th ACMM, BANGALORE FOR THE OFFENCES P/U/S 420,
511 R/W 34 OF IPC AND SEC.25 OF ANTIQUITIES AND ART
TREASURES ACT AS AGAINST THE PETITIONERS HEREIN i.e.,
ACCUSED NO.2, 3 AND 4.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.P No. 1354 of 2022
ORDER
The petitioners are before this Court calling in question the proceedings in C.C.No.969/2016 registered for offences punishable under Sections 420 and 511 read with Section 34 of the IPC and Section 25 of the Antiquities and Art Treasures Act, 1972.
2. Heard the learned counsel, Smt. Sindhu V., appearing for the petitioners, Smt. K.P. Yashodha, learned HCGP appearing for the respondent and have perused the material on record.
3. A Co-ordinate Bench of this Court in Crl.P.No.236/2020 concerning accused No.1 has quashed the proceedings by its order dated 19.08.2021. The order so passed reads as follows:
"3. The case of the prosecution is that the suo motu case was registered by the complainant- Jnanamurthy, PSI of Kamakshipalya Police Station on 10.03.2015 in Crime No.128/2015 alleging that at 7 p.m., when he was on patrolling duty near Sunkadakatte, he received credible information that -4- CRL.P No. 1354 of 2022 on service road near Beggars Colony opposite to Summanahalli Bus Depot, three persons were illegally trying to sell Ancient Metal Idols stating as Antique piece to the public. After confirming the same, at about 7.30 p.m., he along with panchas and his staff visited the spot and found that three persons parked their Innova car and was trying to sell the Antique idols for Rs.1,20,00,000/-. Immediately, the Police apprehended the accused. On verification, they found Parvathi Idol of 1½ feet, one Dattatreya Idol and three idols of Seetha, Lakshmana and Kodandarama. The Police prepared the panchanama, brought to the Police Station and registered a case for the offence punishable under Section 41(D) read with Section 102 of Cr.P.C., and Section 379 of IPC along with Section 25 of the AAT Act. Investigation is completed and charge-sheet has been filed. Hence, the petitioner is before this Court.
4. Learned counsel for the petitioner has contented that in order to take cognizance for the offence punishable under Section 25 of the AAT Act, the complaint is required to be filed by the complainant/Officer otherwise no action shall be taken as per Section 25 of the AAT Act. But the learned Magistrate has taken cognizance on the report of the Police which is not permissible and -5- CRL.P No. 1354 of 2022 taking cognizance itself is illegal and hence, prayed for quashing the same.
5. In support of his case, the learned counsel for the petitioner has produced the judgment of the Hon'ble Supreme Court in the case of State of Karnataka vs. P. Gopalakrishna Panikar reported in ILR 1991 KAR 1539.
6. Per contra, learned High Court Government Pleader objected the same and contended that of course, the Authority is required to file private complaint under Section 200 of Cr.P.C., under the AAT Act. But there is IPC offence. Therefore, the Police have power to file the charge sheet. There is no error in taking cognizance. Learned High Court Government Pleader has also contended that the accused persons were trying to sell the Antique Idols. Though the idols are of bronze, but are not pertaining to Hoysala period. The offence amounts to cheating. Hence, prayed for dismissing the petition.
7. Upon hearing the arguments and on perusal of the records, of course, the Police said to have seized the Antique idols and subsequently, they also seized Shiva and Shankaracharya idols apart from Panchamukhi (Gayathri) idol. Archaeological Department issued a certificate which shows that -6- CRL.P No. 1354 of 2022 Shankaracharya (Bronze) is non-antiquity. However, the idols of Shiva, Parvathi and Rama (Bronze) are antiquity. Dattatraya ildol (Bronze) is of non- antiquity. Parvathi (Durga) (Bronze) is of antiquity and Panchamukhi (Gayathri) (Bronze) is of non- antiquity. The statues of Parvathi and Kodandarama were seized on the spot which were of antiquity and old idols. However, Archaeological department has not given any specific period of its made, as to whether it is of Hoysala period or subsequent period to show that the accused persons are intended to sell the said idols as it is of Hoysala era to cheat the public. Therefore, the question of cheating the public does not arise. Apart from that there is no independent witnesses examined to show that the petitioner actually was trying to sell the idols to the public for Rs.1.25 crore. The very contention of the prosecution is not believable that the petitioner is said to have parked the car near the Beggars colony opposite to Summanahalli Bus Depot by calling the public for selling of idols for an amount of Rs.1.25 crore. The case was registered under Section 379 of IPC, but there is no proof to show that the said idols were stolen from any temples or from other place. Therefore, it cannot be said the offences under Sections 420 and 511 of IPC are made out to show that the petitioner has committed the offence punishable under IPC.
-7- CRL.P No. 1354 of 20228. In view of the above reasons and on perusal of the case, it falls under category of Section 25 of AAT Act and as per Section 26 of AAT Act as regards to (1), (2) and (3) which reads as under: "26. Cognizable of offences.-
(1) No prosecution 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."
9. On bare reading of the provision under Section 26(2) of the AAT Act, it has clearly stated that 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 -8- CRL.P No. 1354 of 2022 behalf by the Central Government. Here in this case, there is no such complaint filed by the competent/specially authorised Officer of the Central Government under the provisions of AAT Act. Therefore, the Court cannot take cognizance for the offence punishable under Section 25 of the said Act.
10. The Division Bench of this Court in similar case in the case of State of Karnataka vs. P.Gopalakrishna Panikar stated supra has dismissed the appeal and has held at paragraph No.3 which is as under:
"3. It may be noticed that Section 26(2) of the Act puts a blanket bar against cognizance of the offences punishable under Section 2 or Sub-section (3) of Section 25 of the Act by any Court except upon the complaint in writing made by an Officer generally or specially authorised in that behalf by the Central Government. As we are on the aspect of prosecution of the offender and also the Court taking cognizance of the same, we should take it that the word "complaint" in this Section has been used as defined in the Code of Criminal Procedure. Section 2(d) of the Code of Criminal Procedure defines the 'complaint' as any allegation made orally -9- CRL.P No. 1354 of 2022 or in writing to a Magistrate with a view to taking action under the Code that some person whether known or unknown, has committed an offence, but does not include a police report. The way in which the word complaint is defined herein would make it clear that any report made by the aggrieved person to the police requesting them to take action cannot be construed as complaint as defined in the Code. The learned Magistrate has taken cognizance of the offence only on the report made by the concerned police after investigation of the report made to them. Therefore, it is clear that the learned Magistrate has taken cognizance of the offence under Section 27(2) of the Act not on the complaint as enjoined in Section 26(2) of the Act but on the report of the police under Section 173 Cr.P.C. Therefore, it is clear that the very taking cognizance of the offence under the provisions of the Act is illegal. In that view of the matter, we do not propose to deal with the merits of the case so far as the violation of the provisions of the Act is concerned."
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CRL.P No. 1354 of 202211. Here in this case, before filing of charge- sheet, the Police could have referred the matter to the Archeological Department and after filing the complaint to the Court as per Section 26 of the Act. Therefore, I am of the view that taking cognizance for the offence punishable under Section 25 of the AAT Act is illegal and other offences punishable under Sections 420 and 511 of IPC are not made out. Therefore, the criminal proceeding in C.C.No.969/2016 requires to be quashed.
Accordingly, criminal revision petition is allowed."
In the light of the order being quashed by the Co-ordinate Bench of this Court (supra), the same would enure to the benefit of the petitioners, who are accused Nos.2, 3 and 4 for the very reasons so rendered by the Co-ordinate Bench of this Court (supra).
4. For the aforesaid reasons, the following:
ORDER i. Criminal Petition is allowed.
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ii. Proceedings pending in C.C.No.969/2016 before the XXXIX ACMM Court, Bengaluru, stand quashed, qua the petitioners.
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JUDGE SJK List No.: 1 Sl No.: 10