Case: M/S B.Fine Art Auctioneers P.Ltd.  Vs. C.B.I.

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 of India has been rendered redundant in view of the decision rendered by the Division Bench of the High Court vide 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 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. 9. Shri A. Mariarputham, 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 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 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 forthcoming 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 of Writ Petition (C) No. 16598 of 2004. It is not the case of the appellants that the FIR has been 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. 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 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 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 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. 11. On the facts and circumstances, we are not inclined to exercise our discretion under Article 136 of the Constitution 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-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. 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 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. 13. On the facts and in the circumstances, it is not possible at this stage to quash the very first information report, since much water has flown after registration of the FIR by the CBI. 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 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 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 of the hearing 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 paintings in question are antiquities as alleged by the prosecution. The said question may have to be decided by the trial court upon appreciation of the evidence that may be brought on record.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 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.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 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 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 of the hearing of these appeals is left open.