Shiv Kumar Sharma, J.
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, 120B 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. After the case was transferred for trial to the court of Additional Sessions Judge (Fast Track) No. 2, Jaipur City, the SHO Police Station Jigna District Shiv Puri (M.P.) moved application seeking permission to take the petitioner in custody for the purpose of investigation of a criminal case instituted against the petitioner with Police Station Jigna. The order dated September 29, 2003 of the learned Additional Sessions Judge, Fast Track, No. 1, Jaipur City, whereby the petitioner was given in the custody of SHO Police Station Jigna now P.S. Karera has been called in question in Misc. Petition No. 1142/2003.
4. In Misc. Petition No. 75/2004 the order dated December 3, 2003 of learned Additional Sessions Judge (Fast Track) No. 1, Jaipur City is under challenge whereby the application of the petitioner for supply of 358 coloured photographs of the statues/idols and 68 catalogues of idols/statues of American Auction House recovered at the instance of various accused was rejected.
5. I have pondered over the rival submissions and carefully scanned the material placed before me. Since the questions involved in all these four petitions are interconnected, they are taken up together for disposal.
REVISION PETITION NO. 1166/2003
6. It is contended on behalf of the petitioner that provisions contained in Section 26 AAT Act are mandatory and non compliance of these provisions would cause miscarriage of justice. Since the report lodged in the Police Station Vidhyadhar Nagar for the offences under AAT Act was itself illegal, no cognizance could be taken under Section 190(1)(b) CrPC. Provisions of Section 26 AAT Act only envisaged filing of complaint by a competent officer authorised by the Central Government and C.I. Police Station Vidhadhar Nagar who lodged the FIR was not competent to lodge the FIR and initiate investigation. Reliance is placed on Govind Mehta v. State of Bihar (1), Ballabh Das Agarwala v. J.C. Chakravorty (2), Union of India v. Prakash Hinduja (3), M.D. Sakur v. State (4), In re T.C. Nichodemus (5), Jaswant Singh v. State of Punjab (6) and Badri Narayan v. State of Rajasthan (7).
7. 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 v. 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.
8. In State of Orissa v. Sharat Chandra Sahu (9), while interpreting the provision of Sub-section (4) of Section 155 CrPC, the Apex Court indicated thus:- (Para12)
'Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code of 1973. This was done to overcome the controversy about investigation of non-cognizable offences by the police without the leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language employed in Sub-section (4). It is apparent that if the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting without the scope of its authority in investigating both the offences as the legal fiction enacted in Sub-section (4) provides that even non-cognizable case shall, in that situation, be treated as cognizable.'
9. Coming to the case law cited by learned counsel for the petitioner, find that in Govind Mehta v. State of Bihar (supra) it was held that before taking cognizance, Magistrate must examine the facts of the complaint and determine whether his power is barred under any clause of Section 195 CrPC. In Ballabh Das Agarwala v. J.C. Chakravorty (supra) it was indicated that initiating of legal proceedings, if not in accordance with law, the defect is not curable. Union of India v. Prakash P. Hinduja (supra) was the case wherein it was observed that even if CBI committed an error or irregularity in submitting the chargesheet without the approval of CVC, the cognizance taken by the Special Judge on the basis of such charge sheet could not be set aside. In M.D. Sakur v. State (supra) it was held that conviction without sanction of competent authority cannot be maintained.
10. In view of clear legal position, I do hot deem it necessary to discuss all the authorities on which reliance is placed by learned counsel for the petitioner as they are distinguishable and not applicable to the facts of instant case. On examination of case diary and relevant statutory provisions, I feel satisfied that cognizance of the offences was rightly taken by the learned Magistrate Provisions contained in Clause (e) of Section 461 CrPC may conveniently be referred at this juncture which provides that if a Magistrate takes cognizance under Clause (a) or Clause (b) of Sub-section (1) of Section 90 CrPC erroneously in good faith, the proceedings shall not be set aside merely on the said ground. Thus from every angle the contention of the learned counsel for the petitioner is devoid of merit.
MISC. PETITION NO. 1213/2003
11. The committal order dated September 3, 2003 has been assailed by the petitioner on the following grounds:-
(i) While committing the case to the court of Sessions, presence of petitioner was necessary before the Magistrate in view of Section 209 CrPC but the order of committal was passed in absence of the petitioner.
(ii) Compliance of Section 207 and 208 CrPC also could not be made by learned Magistrate in absence of the petitioner.
12. Learned Counsel for the petitioner in support of the contentions placed reliance on Udai Mohan Lal Acharya v. State of Maharashtra (10), and Haji Shafi v. State of U.P. (11). Submission of the learned Addl. Advocate General on behalf of the State was that on September 3, 2003 when the committal order was passed by the Magistrate, the petitioner had been in custody of Police Station Bhanpura District Mandsor (M.P.) in connection with investigation of FIR No. 31/2002 for offences under Sections 457 and 380 IPC and because of this extraordinary situation could not be produced but the mere non-production of the petitioner in the court of Magistrate did not cause any prejudice to him as he was represented by his counsel and other co-accused were already present. It was also urged that committal order under Section 209 is of the case and not of the accused. It was under the old CrPC that the accused was committed and not the case, therefore pre- committal evidence used to be recorded by the Magistrate. No under the scheme of the new CrPC, mere absence of the accused at the time of commitment of the case to the court of Sessions does not ipso facts cause any prejudice unless the accused specifically establishes as to how and in what manner prejudice has been caused to him. Reliance was placed on Joginder Singh v. State of Punjab (12), Bhim Singh v. State of Haryana (13), Onkar Singh v. State (14), M.S. Rao v. UOI (15), Gauri Shankar Jha v. State of Bihar (16), Raj Narain v. Supdt. Central Jail (17) and Chandra Prakash Mehra v. State of Rajasthan (18). Learned Addl. Advocate General further contended that no substantial relief could be granted at this Stage to direct the Magistrate to revise the proceedings of committal as this would only result in further delaying the trial without any corresponding advantage to the accused. In support of the contention learned Addl. Advocate General placed reliance on State of M.P. v. Bhoora Ji (19) and Dharmesh v. State of Gujarat (20).
13. Before examining the correctness of the rival submissions, it will be appropriate to notice the provisions contained in section 209 CrPC, that provide thus:-
'209. Commitment of case to court of Sessions when offence is triable exclusively by it-When in a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall:-
(a) Commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Sessions, and subject to the provisions of this Code relating to bail remand the accused to custody, until such commitment is made;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of the trial;
(c) send to that court of the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the Commitment of the case to the Court of Sessions.'
14. A plain reading of Section 209 clearly shows that commitment is of 'the case' and not of 'the accused. The Committing Court need not take any evidence before committing the case, it has only to see whether the case is exclusively triable by the Court of Sessions. Although the case is committed and not 'the accused' the Allahabad High Court in Haji Shafi v. State of U.P. (supra) held that presence of accused is must for committal. It was observed as under:-
'The opening words of Section 209 CrPC, are that 'when the accused appears and brought before the Magistrate,' in that case the Magistrate can commit the case, if the offence is triable by the court of Sessions. Therefore, the presence of the accused is must for committal Apart from this, the compliance of Section 207 and 208 CrPC are to be made before committal. The compliance could not be made in the absence of the accused. Thus, the accused can not be committed to the court of Sessions, if they are not present in the court of Committing Magistrate.'
15. Punjab and Haryana High Court in Bhim Singh v. State of Haryana (supra) however indicated that mere absence of accused at the time of passing Commitment order, is not a material irregularity causing any prejudice.
16. Their Lordships of the Supreme Court in State of M.P. v. Bhooraji (supra) propounded that after enactment of the Code of Criminal Procedure 1973, the Committal Court, in police chargesheeted cases, can not examine any witness at all. The Magistrate in such cases has only to commit the cases involving offences exclusively triable by the Court of Session. Therefore, after commencement of the 1973 Code it is not possible for an accused to raise a contention that skipping committal proceedings had deprived him of the opportunity to cross-examine witnesses in the committal Court and that had caused prejudice to his defence.
17. In M.S. Rao v. UOI (supra) Hon'ble Apex Court held that an order of remand can not be considered to be invalid merely because an accused has not been produced before the Magistrate. In Gauri Shankar Jha v. State of Bihar (supra) it was observed by the Hon'ble Supreme Court that order of remand can be passed in absence of accused if his presence at the time could not be secured.
18. It may be noticed that while Section 167(2)(b) CrPC provides that 'No Magistrate shall authorise detention in any custody unless the accused is produced before him'. The language of Section 209 merely reads that 'when a case instituted on a police report or otherwise, the accused appears or brought before the Magistrate.....'. Evidently language of Section 167(2) is mandatory words in regard to production of the accused as compared to the learned used in Section 209 which does not expressly lay down that the Magistrate would not commit the case to the Court of Sessions in absence of accused.
19. In the fact situation of the instant case, even if it is assumed that the petitioner is right in his contention at best the matter has to be sent back to the Magistrate to go through a fresh process of Committal in presence of the petitioner. In any case, the matter would have to come up to the Session Court again. The compliance with the formality would only result in further delay in holding the trial, without any corresponding advantage to the petitioner, (vide Dharmesh v. State of Gujarat (supra).
20. For these reasons I do not find it a fit situation to interfere with the impugned Committal order by invoking inherent powers under Section 482 CrPC.
MISC. PETITION NO. 1142/2003
21. As already noticed that the SHO Police Station Jigna now P.S. Karera District Shiv Puri (M.P.) made request to take the petitioner in custody and the learned Additional Sessions Judge gave the petitioner in the custody of SHO in connection with the investigation of a criminal case instituted against the petitioner with police station Jigna. Calling in question the impugned order of learned Additional Sessions Judge, learned counsel for the petitioner canvassed that impugned order of the learned Additional Sessions Judge in handing over the petitioner in the custody of SHO was against the provisions contained in Section 267 CrPC. It was further contended that the additional Sessions Judge while passing the order did not consider the statutory bar of Section 269 CrPC; Contention so raised were supported by Harshad S. Mehta v. CBI (III (21), S.K. Ismail Ali v. State of W.B. (22), Bharti Sachdeva v. State (23), CBI v. Anupam J. Kulkarni (24) and State v. Dawood Ibrahim (25). Per contra on behalf of the State it was urged that it was not at all a case for issuance of production warrant of the petitioner as he was already in jail and police merely wanted permission of the court to remove the petitioner from judicial custody into police custody in connection with another criminal case, according to learned Addl. Advocate General the power of police to arrest the accused flows from Section 41 CrPC and not 267.
22. Having noticed the relevant provisions, I deem it appropriate to refer at the outset to the ratio indicated in C.B.I. v. Anupam J. Kulkarni (supra). The argument for consideration before the Apex Court was 'as to whether after initial remand of 15 days, can an investigating agency obtain a police remand?' The Apex Court gage answer in negative. It was observed in para 11 thus:-
'If that is permitted then the police can go on adding some offence or the other of a serious nature at various stages and seek further direction in police custody reportedly this would defeat the very object underlying Section 167'.
After the aforequoted observation, their Lordships further indicated as under:-
'However, we must clarify that this limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case, they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be formally arrested in connection with other case and then obtain the order of the Magistrate for detention in police custody.'
23. In State v. Sukh Singh (26), the question for consideration before the Division Bench of Rajasthan High Court was:- Whether where an accused who is kept in jail by orders of adjourment or remand under Section 344, can he be handed over to the police in some other case for purposes of investigation? Answering the said question the Division Bench observed in para 4 as under:-
'Supposing, a person is accused of one offence, and investigation of that case is complete and challan has been submitted to court, he will, in these circumstances, be sent to jail or judicial custody to await his trial. Supposing later evidence is discovered of his complicity in another case, and the police in order to complete the investigation of that case requires to question the accused or the handing over of the accused to police custody would aid the investigation in some way; in such a case we fail to understand why it may not be open to Magistrate under Section 167(2) to take the accused out of jail or judicial custody and hand him over to the police for the maximum period of 15 days provided in that section of course, before the Magistrate does so, he will have to satisfy himself that a good case is made out for detaining the accused in police custody in connection with the investigation of the other case.'
24. In State v. Dawood Ibrahim (supra) the police submitted a composite charge sheet against 198 persons, showing 45 of them as absconders. After the Designated Court took Cognizance of the case the Central Government entrusted further investigation in the case to the CBI. In the course of such investigation the CBI, apprehended one of the absconders mentioned in the chargesheet, who, in his confessional statement, disclosed that Dawood Ibrahim and other accused had taken active part in the Criminal Conspiracy. Thereafter the CBI moved application before the Designated Court praying for issuance of non-bailable warrants of arrest against Dawood Ibrahim and other accused to initiate further proceedings in the matter to apprehend them and/or the take further action to declare them as proclaimed offenders. The designated Court rejected the application and observed that no process could be issued by the Court in aid of investigation under Section 73 CrPC. The question for consideration before the Hon'ble Supreme Court was:- When and under that circumstances a court can invoke the provisions of Section 73 CrPC?
Their Lordships of the Supreme Court on examining various provisions of CrPC propounded in para 24 thus:-
'...... Since warrant is arid can be issued for appearance before the court only and not before the police and since authorisation for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, it can not be said that warrant of arrest under Section 73 of the Code could be issued by the Courts solely for the production of the accused before the police in aid of investigation.'
25. Ratio indicated in State v. Dawood Ibrahim is not applicable to the fact situation of the instant case where the complicity of the petitioner in another complicity of the petitioner in another cognizable offence was discovered: The police did not make the request for issuance of any warrant or production warrant but sought permission to remove the petitioner from judicial custody and the take him in police custody in order to complete the investigation of another case. Such a course was open to the police in view of the mandate issued by their Lordships of the Supreme Court in CBI v. Anupam Ji Kulkarni (supra).
26. Thus I am inclined to hold that order dated September 29, 2003 in handing over the custody of the petitioner o the SHO was rightly passed by the learned Additional Sessions Judge (Fast Track) No. 1 Jaipur City.
MISC. PETITION NO. 75/2004
27. In this petition the petitioner has impugned the order dated December 3, 2003 of the learned Additional Sessions Judge (Fast Track) No. 1, Jaipur City, whereby the application of the petitioner for supply of 358 coloured photographs of the statues/idols and 68 catelogues of various statutes/idols, recovered at the instance of accused persons, was rejected.
28. It appears from the perusal of the case diary that seizure memos of photographs and catelogues were forwarded to the learned Magistrate with report under Section 173(5) CrPC. Reference of catelogues was made at serial No. 19 and details of photographs were mentioned at Serial Nos. 25, 29, 31, 33, 40, 45, 48, 50, 67, 69, 85, 87, 94 and 95. A look at the impugned order demonstrates that copy of video cassette was ordered to be supplied to the petitioner. Undeniably the photographs are thousands in number.
29. The Law Commission in its 41st report observed thus in regard to supply of copies to accused:-
'14.22. It has at times been found that documents relied upon by the prosecution are too voluminous to be copied out or even thin extracts prepared. The difficulty has been felt particularly by the CBI while investigating complicated cases of commercial fraud where a large number of account books have to be produced in evidence. In the earlier Report (37th) the commission recommended that in such circumstances and subject to the orders of a competent court, the documents may be made available for inspection by the accused. We agree that this should be provided.'
30. Section 207 CrPC provides for supply to the accused of copy of police report and other documents. Second proviso appended to Section 207 reads as under:-
'Provided further that if the Magistrate is satisfied that any document referred to in Clause (V) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.'
Evidently the Magistrate under the second proviso, is given the discretion in respect of voluminous documents referred to in Clause (5) to allow their inspection by the accused or his pleader instead of granting their copies.
31. In the instant case since the photographs and catelogues being voluminous the court below may instead of granting their copies, allow their inspection by the petitioner or his counsel. Thus, I do not feel inclined to invoke inherent powers under Section 482 CrPC to interfere with the impugned order dated December 3, 2003.
CONCLUSION:
32. As a result of the above discussion, instant petitions being devoid of merit, stand dismissed without any order as to costs.