// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. S.B. Criminal Revision Petition No.14/2005 Vaman Narayan Ghiya S/o late Badri Narayan Ghiya ...Accused-Petitioner Versus State of Rajasthan ...Respondent 2. S.B. Criminal Revision Petition No.345/2007 Vaman Narayan Ghiya S/o late Badri Narayan Ghiya ...Accused-Petitioner Versus State of Rajasthan ...Respondent 3. S.B. Criminal Revision Petition No.1128/2004 Pradeep Malhotra S/o Shri Bisandas ...Accused-Petitioner Versus The State of Rajasthan through PP ...Respondent 4. S.B. Criminal Misc. Petition No.734/2005 Vidhi Chand S/o Shri Phool Singh Thakur ...Accused-Petitioner Versus State of Rajasthan through PP ...Respondent 5. S.B. Criminal Misc. Petition No.570/2005 Bane Singh alias Pahalwan S/o Shri Kamal Gurjar ...Accused-Petitioner Versus State of Rajasthan through its PP ...Respondent 6. S.B. Criminal Revision Petition No.971/2004 Jagdish Chand Sharma S/o Shri Patru Mal Sharma // 2 // ...Accused-Petitioner Versus The State of Rajasthan through its PP ...Respondent Date of Order ::: 14.03.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Alok Sharma ) Shri Mahesh Gupta, ) Shri Suresh Sahni, ) Shri S.S. Hora, ) Counsel for petitioners Shri V.R. Bajwa, with ) Shri V.P. Bishnoi, ) Shri A.K. Bajpai, Special P.P., and Shri Sarafraj Haidar Ali, Counsel for the respondents #### By the Court:- Heard learned counsel for the parties. The above named six petitions arise out of common F.I.R. No.146/2003 registered at Police Station Vidhyadhar Nagar, Jaipur City (North), Jaipur, therefore, all the petitions were heard together and are being disposed of by this common order. Four petitions i.e. S.B. Criminal Revision Petitions No.971/2004, 1128/2004, 14/2005 and S.B. Criminal Miscellaneous Petition No.570/2005 have been preferred against the impugned order dated 4th September, 2004, passed by the Additional District & Sessions Judge No.1 (Fast Track), Jaipur City, Jaipur, in Sessions Case No.41/2003, whereby the trial court has framed charge against all the petitioners and other co-accused persons for the offence under Sections 3/25 (1), 5/25 (2) and 14/25 (2) of the Antiquities and Art Treasurers // 3 // Act, 1972, and under Section 379/120B, in alternative under Sections 411, 413/120B, 414/120B and 401 of the IPC. Accused-petitioner Vidhi Chand has preferred S.B. Criminal Miscellaneous Petition No.734/2005 for quashing criminal proceedings pending in Sessions Case No.41/2003 before the Additional District & Sessions Judge No.1 (Fast Track), Jaipur City, Jaipur, titled State of Rajasthan Vs. Vaman Narayan Ghiya and Others, qua petitioner. Accused-petitioner Vaman Narayan Ghiya has preferred another S.B. Criminal Revision Petition No.345/2007 against the impugned order dated 13th March, 2007, whereby the application filed by him in the trial court under Sections 216, 218, 184, 186, 300 of the Code of Criminal Procedure, was dismissed. Briefly stated the facts of the prosecution case are that on 06.06.2003 the Station House Officer Mr. Ram Singh, Sub Inspector, lodged a complaint at the Police Station Vidhyadhar Nagar to the effect that during investigation in the complaint No.128/2002 under Section 411 of the IPC dated 26.05.2002 and Complaint No.142/2002 under Section 411 IPC dated 11.06.2002 regarding stolen of idols, it came to the notice from secret reliable sources that within the territory of Police Station Vidhyadhar Nagar, Jaipur City (North), by stealing rare idols and art treasures from the temples of antiquarian significance and preserved places situated in Jaipur or different parts of Rajasthan, an organized gang of thieves used to export them to foreign countries illegally by way of smuggling for the last many years and used to sell // 4 // them there; and the Jaipur is the center for sale and purchase of those objects of antiquarian or historical significance. A special team of police officials was constituted under the supervision of Superintendent of Police (North) in order to take necessary action under law against them after finding out the network and working-procedure of the 'organized gang' involved in stealing and smuggling the objects of antiquarian or historical significance idols, and also to develop the aforesaid facts stated in the complaint and the information so received. The aforesaid team first of all collected the First Information Reports lodged in Jaipur and different parts of Rajasthan regarding the thefts of objects of antiquarian or historical significance idols. The special team obtained the record and photographs of antiquarian which were stolen from the preserved places under the Rajasthan Archaeological and Museum Department, Jaipur, and the Indian Archaeological Survey Department. The said team also collected reliable documents and photographs of preserved places of Rajasthan from other sources. The special team also obtained published reliable documents regarding availability of objects/idols in the foreign countries, which were theft from Rajasthan, and also obtained complete information regarding working-procedure of the organized gang of idols thieves, which is used by it to send the stolen idols abroad by way of smuggling after stealing them and regarding sale thereof at foreign countries. As per the direction of the Higher Officers the members of the special team was observing and they received secret information from one informer that // 5 // some members of the gang, namely, Vikas Yadav, Banne Singh, Rameshwar and Jitendrapal Singh have come for transaction of purchase and sale of some idols which were stolen from Sector No.2, Ganesh Marg, Vidhyadhar Nagar. The facts were apprised to the higher officers and as per their instructions the police officials went at a particular place as per information received by them. They saw four persons who were talking about sale and purchase of idols. These persons tried to run away after seeing the police personnels but they were caught hold. The idols and photographs of antiquarian etc. were recovered from their possession. The other detailed facts are mentioned in the report and on that basis F.I.R. No.146/2003 was registered under Sections 379, 411, 401, IPC, and Section 5, 14/25 (2), the Antiquities and Art Treasurers Act, 1972, and investigation commenced. The Investigating Officer recorded the statement of prosecution witnesses. Two persons were examined under Section 164, CrPC, and after detailed investigation the prosecution filed charge-sheet against 19 persons including petitioners on 3rd September, 2003 under Sections 379, 401, 411, 413, 414, 120B and under Section 3/25 (1), 5, 14/25 (2) of the Act of 1972. The trial court vide its impugned order framed charge against accused-petitioners for the offence as mentioned above. The learned counsel for the petitioners argued the case at length. They referred the result of investigation and submitted factual and legal arguments as to whether in the facts and circumstances of the // 6 // case and on the basis of evidence charge-sheet available on the record, the offence under Sections 411, 413 IPC and other offences are made out or not. They also submitted that the trial in the present case is going on contrary to the provisions of the Code of Criminal Procedure. They, therefore, contended that the impugned order passed by the trial court framing charge against the accused-persons is bad in law and the same is liable to be set-aside by this Court. They also argued that the entire proceedings of the trial court are liable to be quashed and further that the trial court committed an illegality in rejecting the application of accused-petitioner Vaman Narayan under Sections 216, 218, 184, 186, 300 of the Cr.P.C., vide order dated 13.03.2007 impugned in S.B. Criminal Revision Petition No.3245/2007. The learned Special Public Prosecutor defended the impugned judgment passed by the trial court. He contended that a thorough investigation was made in the case by the Investigating Agency and the relevant and material evidence was collected during investigation and only thereafter a charge-sheet was submitted in the case against the accused-petitioners as well as other co-accused persons. He contended that there was sufficient material/evidence on the record so as to proceed with the case by the trial court and to frame charge for the above offence against the accused-persons. In reply to submission of learned counsel for the petitioners that the trial in the present case is going on contrary to the provisions of Code of Criminal Procedure is concerned, he contended that trial in the present case is // 7 // going on in accordance with the provisions of Cr.P.C. He also contended that there is no illegality in the order dated 13.03.2007 passed by the trial court and further that in the facts and circumstances of the case, there is no illegality in the trial of the case and the same cannot and should not be quashed. He also referred the statements of the prosecution witnesses including the statements of Abhay Singh, Mool Singh, Janak Singh, Ramesh Chandra and Shaqeel @ Azhar Hussein. He, therefore, contended that there is no force in any of the arguments of the learned counsel for the parties and the petitions being devoid of merits are liable to be dismissed. During the course of arguments the learned Special Public Prosecutor for the State informed this Court that the trial court is proceeding with the trial of the case in the present case on day to day basis and till now about 80 witnesses have been recorded on behalf of the prosecution and only one witness i.e. Investigating Officer which remained to be examined is also being examined on behalf of the prosecution on day to day basis and the trial is likely to be concluded shortly in the matter. I have considered the submissions of learned counsel for the parties and examined the impugned orders passed by the trial court and also the charge-sheet including the statements of the prosecution witnesses particularly the statements of prosecution witnesses, namely, Abhay Singh, Mool Singh, Janak Singh, Ramesh Chandra and Shaqeel @ Azhar Hussein, and find that there was sufficient material available // 8 // on the record before the trial court so as to proceed further in the case and to frame charge for the above offences against the accused- petitioners and other co-accused persons. The detailed examination of the prosecution evidence/witnesses is not required at this stage. The discussion and finding at this stage by this Court on factual and legal arguments of learned counsel for both the parties may affect the case of either party in the trial court as at present the trial of the case is at the fag-end and is likely to be concluded shortly. The prosecution has examined its all witnesses. Only one prosecution witness i.e. Investigating Officer has remained to be examined whose statement is also being recorded on day-to-day basis. It will be open for the parties to raise all legal and factual submissions before the learned trial court during final arguments of the case. The Hon'ble Supreme Court in State of M.P. Vs. S.B. Johari and Others – (2000) 2 SCC 57, has held that exercise of appreciating the materials produced by the prosecution at the stage of framing of the charge is wholly unjustified. It is a settled law that at the stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The Hon'ble Supreme Court held as under:- // 9 // “4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228 CrPC, the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja (1979) 4 SCC 274, and held thus: (SCC p.85, para 7) “From the above discussion it seems well settled that at the Sections 227-228 stage the court // 10 // is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.” The Hon'ble Supreme Court in State of Maharashtra Vs. Salman Salim Khan – 2004 AIR SCW 81, held as under:- “12. We are of the opinion that though it is open to a High Court entertaining a petition under Section 482 of the Code to quash charges framed by the trial Court, same cannot be done by weighing the correctness or sufficiency of evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial. ....” In view of the above, I do not find any force in any of the petitions and all the petitions are accordingly dismissed. A copy of this order may be placed in all other five petitions for ready reference. (Narendra Kumar Jain) J. //Jaiman// // 11 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Cr. Misc. 3rd Stay Application No.264/2008 In S.B. Criminal Revision Petition No.14/2005 Vaman Narayan Ghiya S/o late Badri Narayan Ghiya ...Accused-Petitioner Versus State of Rajasthan ...Respondent Date of Order ::: 14.03.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Alok Sharma, Counsel for petitioner Shri A.K. Bajpai, Spl. P.P., for the State #### By the Court:- Consequent upon dismissal of the main petition itself, the stay application, filed therewith, does not survive and the same is also dismissed. (Narendra Kumar Jain) J. //Jaiman//