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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 373-374 of 1978.

Appeals by Special Leave from the Judgment and Orders dated 10-1-1978 and 14-9-1978 of the Delhi High Court in Criminal Misc. (M) No. 323 and 322/77 and Criminal Misc. Nos. 1083, 1149 of 1978 in Special Misc. (M) No. 322/77.

Ram Jethmalani (In Crl. A.373), A. K. Sen (In Crl. A.374) and Harjinder Singh for the Appellants.

U. R. Lalit and R. N. Sachthey for the Respondent. The Judgment of the Court was delivered by CHINNAPPA REDDY, J.-On the intervening night of 31st March 1967 and Ist April 1967, two sandstone pillars of great antiquity, beauty and value were stolen from Suraj Kund temple, in Village Amin (District Karnal, Haryana). They were of the Sunga period (2nd Century B.C.) and their present estimated value in the International Art Treasures' Market is said to be around five hundred thousand American dollars. A first information report (F.I.R. No. 72 of 1967) was registered by the Police of Butana, District Karnal. The pillars were recovered on 2nd May 1967. On completion of investigation a charge-sheet was filed on 3rd October 1967 in the Court of the Ilaqa Magistrate at Karnal, against one Bali Ram Sharma and two others. 3-119 SCI/79 The case ended in their acquittal on 16th July 1968. During the pendency of the case one Narinder Nath Malik (N. N. Malik) filed an application before the Magistrate alleging that he was a research scholar and requesting that he might be given custody of the two pillars to enable him to make a detailed study. At the instance of H. L. Mehra, the then Chief Judicial Magistrate, Karnal and a friend of N. N. Malik, the learned Ilaqa Magistrate gave custody of the two pillars to N. N. Malik on his executing a personal bond in a sum of Rs. 20,000/-. The order was written by H. L. Mehra himself and signed by the Ilaqa Magistrate. The pillars remained in the custody of N. N. Malik from Ist March 1968 to 27th May 1968, when N. N. Malik purported to return them to the Court of the Ilaqa Magistrate, Karnal. After the acquittal of Bali Ram Sharma and others, the pillars were handed over to the Lambardar of village Amin. Later, it came to light that the pillars returned by N. N. Malik were not the original pillars but fakes. Thereupon, First Information Report No. RC.2/71-CIA/SPE/CBI was registered at Delhi against N. N. Malik and H. L. Mehra under Section 120-B read with Sections 406 and 420 Indian Penal Code. After completing the investigation the C.B.I. filed a charge-sheet No. R.C. 2 of 1971 in the Court of Special Magistrate, Ambala, against N. N. Malik and H. L. Mehra for alleged offences under Section 120-B read with Sections 406 and 420 Indian Penal Code. The charge-sheet was filed on 30th December, 1972. On 17th May, 1976, the learned Special Magistrate, Ambala, passed an order directing the framing of charges against N. N. Malik and H. L. Mehra. But, no charges were actually framed as the accused were not present in the Court. On 17th April, 1977, the Public Prosecutor filed an application under Section 494 Criminal Procedure Code for permission to withdraw the case against Malik and Mehra. The learned Special Magistrate, Ambala, by his order dated 16th May 1977, permitted the withdrawal of the case and discharged the accused.

Meanwhile internal emergency was lifted in India in March 1977 and Ram Lal Narang was released. Almost immediately he filed a petition before the Additional Metropolitan Magistrate to drop the proceedings against him, to cancel the extradition warrants and to discharge the accused. The contention was that the entire investigation in First Information Report No. R.C. 4/76 was illegal as a case on the same facts was already pending before the Ambala Court and that the Delhi Court acted without jurisdiction in taking cognizance of the case pursuant to a report of police based upon such illegal investigation. The learned Magistrate held that he was not competent to sit in judgment, as it were, over the order of his predecessor taking cognizance of the case. He, however, found that the conspiracy which was the subject matter of the case before the Court at Ambala and the conspiracy which was the subject matter of the case before himself were one and the same, but, he held that the question as to which Court should proceed with the case, was not for him to decide; it was a matter for the High Court to decide under Section 186 Criminal Procedure Code. The learned Magistrate also noticed an application filed before him, after the conclusion of arguments, informing him that the case in the Court at Ambala against Malik and Mehra had since been withdrawn on 16th May 1977.

It is obvious that neither at the time when the First Information Report pertaining to the Ambala case was registered nor at the time when the charge-sheet was filed in the Ambala Court, were the Narang brothers known to be in the picture. The investigating agency was not also aware of what Malik and Mehra had done with the pillars after they had obtained possession of the pillars from the Court and substituted and returned fake pillars to the Court. The First Information Report and the charge-sheet were concerned primarily with the offences of conspiracy to cheat and to misappropriate committed by Malik and Mehra. At that stage, the investigating agency was not aware of any conspiracy to send the pillars out of the country. It was not known that the Narang brothers were also parties to the conspiracy to obtain possession of the pillars from the Court. It was much later that the pillars surfaced in London and were discovered to be in the constructive possession of Narang brothers. Even then, the precise connection between Malik and Mehra on the one side and Narang brothers on the other was not known. All that was known was that the pillars which were stolen property within the definition of the expression in Section 410 Indian Penal Code were found to be in the possession of Narang brothers in London. On the discovery of the genuine pillars in the possession of Narang brothers, without anything further to connect Narang brothers with Malik and Mehra, the police had no option but to register a case under Section 411 Indian Penal Code against Narang brothers. That was what was done. No fault could, therefore, be found with the police for registering a First Information Report against the Narang brothers for the offence of conspiracy to commit an offence under Section 411 Indian Penal Code. In the course of the investigation into this offence, it transpired that the Narang brothers were also parties to the original conspiracy to obtain possession of the pillars from the Court by cheating. Facts came to light which indicated that the conspiracy, which was the subject matter of the case pending in the Ambala Court was but part of a larger conspiracy. The fresh facts which came to light resulted in the filing of the second charge-sheet. The several facts and circumstances mentioned by us earlier and a comparison of the two First Information Reports and the two charge-sheets show that the conspiracy which was the subject matter of the second case could not be said to be identical with the conspiracy which was the subject matter of the first case. The conspirators were different. Malik and Mehra alone were stated to be the conspirators in the first case, while the three Narang brothers were alleged to be the principal conspirators in the second case. The objects of the two conspiracies were different. The alleged object of the first conspiracy was to obtain possession of the pillars from the Court by cheating and to misappropriate them. The alleged object of the second conspiracy was the disposal of the stolen property by exporting the pillars to London. The offences alleged in the first case was Section 120-B read with Section 420 and Section 406 Indian Penal Code, while the offences alleged in the second case were Section 120-B read with Section 411 Indian Penal Code and Section 25 of the Antiquities and Art Treasures Act, 1972. It is true that the Antiquities and Art Treasures Act had not yet come into force on the date when the First Information Report was registered. It is also true that Omi Narang and Manu Narang were not extradited for the offence under the Antiquities and Art Treasures Act and, therefore, they could not be tried for that offence in India. But the question whether any of the accused may be tried for a contravention of the Antiquities and Art Treasures Act or under the corresponding provision of the earlier Act is really irrelevant in deciding whether the two conspiracies are one and the same. The trite argument that a Court takes cognizance of offences and not offenders was also advanced. This argument is again of no relevance in determining the question whether the two conspiracies which were taken cognizance of by the Ambala and the Delhi Courts were the same in substance. The question is not whether the nature and character of the conspiracy has changed by the mere inclusion of a few more conspirators as accused or by the addition of one more among the objects of the conspiracy. The question is whether the two conspiracies are in substance and truth the same. Where the conspiracy discovered later is found to cover a much larger canvas with broader ramifications, it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimensions. We are clear, in the present case, that the conspiracies which are the subject matter of the two cases cannot be said to be identical though the conspiracy which is the subject matter of the first case may, perhaps, be said to have turned out to be part of the conspiracy which is the subject matter of the second case. As we mentioned earlier, when investigation commenced in First Information Report No. R.C. 4 of 1976, apart from the circumstance that the property involved was the same; the link between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known.

As in the present case, occasions may arise when a second investigation started independently of the first may disclose a wide range of offences including those covered by the first investigation. Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case, it is up to the prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior Court to have the two cases tried together. The Magistrates themselves may take action suo motu. In the present case, there is no problem since the earlier case has since been withdrawn by the prosecuting agency. It was submitted to us that the submission of a charge-sheet to the Delhi Court and the withdrawal of the case in the Ambala Court amounted to an abuse of the process of the Court. We do not think that the prosecution acted with any oblique motive. In the charge-sheet filed in the Delhi Court, it was expressly mentioned that Mehra was already facing trial in the Ambala Court and he was, therefore, not being sent for trial. In the application made to the Ambala Court under Section 494 Criminal Procedure Code, it was expressly mentioned that a case had been filed in the Delhi Court against Mehra and others and, therefore, it was not necessary to prosecute Mehra in the Ambala Court. The Court granted its permission for the withdrawal of the case. Though the investigating agency would have done better if it had informed the Ambala Magistrate and sought his formal permission for the second investigation, we are satisfied that the investigating agency did not act out of any malice. We are also satisfied that there has been no illegality. Both the appeals are, therefore, dismissed.