Rajasthan High Court - Jodhpur
Rewantram & Anr vs State on 27 February, 2017
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Criminal Misc. Petition No. 3782 / 2016
1. Rewantram S/o Shri Ramnarayan, b/c Joshi, R/o Behind
Hariram Mandir, Near Railway Line, Nokha, District- Bikaner
2. Shiv Kumar S/o Shri Banwari Lal, b/c Vyas, R/o Himmatsar,
Tehsil Nokha, District- Bikaner
----Petitioners
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Petitioner(s) : Mr.Nishant Bora
For Respondent(s) : Mr.M.S.Panwar PP for the State.
Mr.Surendra Singh, IO present in person.
_____________________________________________________
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Order 27/02/2017
1. The petitioners have moved this misc.petition under Section 482 Cr.P.C. for quashing of FIR No.212/2016 lodged at Police Station Nokha, District Bikaner.
2. It is contended by counsel for the petitioners that 600 tins of Lotus Ghee were recovered, but there is proof that they were purchased from the Company. It is also contended that the persons who have sold the Lotus Tins to the petitioners have got the same released under Section 457 Cr.P.C. It is further contended that the petitioners have license to manufacture and repack the ghee and even if they were emptying 15 kgs. and repacking the same into small containers, no offence is made out as the petitioners are entitled to repack and sell the ghee as per (2 of 5) [CRLMP-3782/2016] the license, which they have obtained.
3. It is also contended by counsel for the petitioners that the FIR nowhere makes a mention that the Lotus Ghee was being packed in small containers and was being sold in the name of Lotus. It is further contended that Section 115 of the Trademarks Act, 1999 deals with the powers of the police with regard to cognizance of certain offences. It is also contended that a police officer is required to obtain the opinion of the Registrar on facts involved in the offence relating to Trademarks and is required to abide by the opinion so obtained. It is also contended that only a Deputy Superintendent of Police or equivalent may conduct the search and seizure operations.
4. The misc.petition has been vehemently opposed by the learned Public Prosecutor. His contention is that in the search, 2500 Tins of Lotus Ghee have been recovered. Chemicals, essence and a plant in running condition were also found. As Lotus brand is popular, the same was being mixed and thereby, the petitioners have committed the offence. It is also contended that the search and seizure was conducted by an IPS Officer, and the C.O. was also present at that time.
5. I have considered the rival contentions of the parties.
6. The offences under Sections 103, 104 and 105 of the Trademarks Act are cognizable. The search and seizure in this case was conducted by an IPS Officer. Sub-section (4) of Section 115 of the Act provides that the officer should not be below the rank of Deputy Superintendent of Police or equivalent. An IPS Officer is not below the rank of Deputy Superintendent of Police, further the (3 of 5) [CRLMP-3782/2016] C.O. was also present. Therefore, this contention do not have any force.
7. The offence being cognizable, this Court has to see whether the case falls within the categories enumerated by the Apex Court in State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors.,1992 Supp.(1) SCC 335. Para 105 of the said judgment is reproduced hereunder:-
"105. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima- facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-
(4 of 5) [CRLMP-3782/2016] cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
8. A bare reading of the FIR discloses commission of a cognizable offence. As huge quantity of Lotus Tins have been recovered, at this stage, this Court cannot come to the conclusion that the FIR is so absurd and inherently improbable that a just conclusion cannot be drawn from the same. Further it is not made out that the proceedings are manifestly attended with malafide or instituted maliciously with ulterior motive.
9. In Gurumukhdas Vs. State of Rajasthan, 2016 0 Supreme (Raj.) 1086, the Rajasthan High Court has held that it is statutory right of the police to investigate where FIR discloses commission of an offence.
10. In Vinod Raghuvanshi Vs. Ajay Arora and Ors., (2013) 10 SCC 581, it was held that while considering the case (5 of 5) [CRLMP-3782/2016] for quashing a criminal proceeding, the Court should not "kill a still born child" and an appropriate prosecution should not be stifled, unless there are compelling circumstances to do so.
11. In the present case in hand, no compelling circumstances are there, so as to quash the present FIR.
12. Consequently, the present misc.petition is dismissed. The stay application also stands disposed.
(PANKAJ BHANDARI)J. Skant/-