Rajasthan High Court - Jodhpur
Shivlal vs State & Anr on 16 May, 2013
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
S.B.CRIMINAL MISC. PETITION NO.596/2005
Shivlal vs. State of Raj. & Ors.
Date of Order : 16th May, 2013
PRESENT
HON'BLE MR JUSTICE VIJAY BISHNOI
Mr D.Jasmatia, for the petitioner
Mr A.R.Nikub-Public Prosecutor
Mr H.S.Balot, for respondents
BY THE COURT:
This criminal misc. petition under section 482 CrPC has been preferred by the petitioner against the order dated 22.11.2004 passed by the learned Additional Sessions Judge No.2, Jodhpur (for short 'the revisional court' hereinafter) whereby the revisional court dismissed the revision petition filed by the petitioner and affirmed the order dated 25.02.2003, passed by the learned Judicial Magistrate No.4, Jodhpur (for short 'the trial court' hereinafter), whereby the learned trial court ordered for framing charges against the petitioner for the offence punishable under section 420 IPC read with section 103, 104 of the Trade Marks Act, 1999 (for short 'the Act of 1999' hereinafter).
Brief facts of the case are that, the
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complainant-respondent No.3 lodged a report on
23.08.2001 at Police Station, Basni, Jodhpur, alleging therein that the fake cement of J.K. Brand was being sold in market on low price, therefore, he sent Shri Rakesh Dhariwal as a bogus customer to Shiv Building, from where, he purchased a bag of fake cement for consideration of Rs.100/-, whereas the cost of a bag of J.K.Cement was Rs.130/- in market. At that time, the petitioner got started the unloading of the cement bags from a Truck bearing registration No.RRR 5217, which was fake, marking thereon 'J.K.Cement'. It was alleged in the complaint that no manufacturing code pertaining to week, year and bag suppliers was marked on the bag of cement purchased by Rakesh Dhariwal, which is inscribed by the company. The complainant had informed to the company authorities about this incident, whereupon Shri B.Kumar (AVP) came there and inquired from the company that whether any goods were sent to Shiv Building by the company in last weak or not, upon which he received a negative report. As such, the above cement was confirmed to be fake. The petitioner was committing cheating with the company and public by selling fake and bad quality cement.
On receiving the above complaint, police registered a case for the offence punishable under 3 section 420 IPC read with sections 103 and 104 of the Act of 1999 and started investigation. After completion of investigation, the police filed charge-sheet before the trial court for the offence punishable under section 420 IPC read with sections 103 and 104 of the Act of 1999 against the petitioner and non-petitioner No.2.
The trial court passed the order dated 25.02.2003 for framing the charges against the petitioner for the offences punishable under section 420 IPC read with sections 103 and 104 of the Act of 1999. Being aggrieved with the order dated 25.02.2003, the petitioner preferred a revision petition before the Sessions Court, Jodhpur and the same was transferred to the revisional court. However, the revisional court, vide order dated 22.11.2004, dismissed the revision petition filed by the petitioner.
Being aggrieved with the order dated 22.11.2004 passed by the learned revisional court, the petitioner has preferred this criminal misc. petition under section 482 CrPC.
The learned counsel for the petitioner has argued that the learned trial court had grossly erred in framing the charges against the petitioner for the offence punishable under section 420 IPC. It has been contended by the learned counsel for the petitioner that 4 along with the charges of sections 103 and 104 of the Act of 1999, the charges under section 420 IPC cannot be framed. The learned counsel for the petitioner has placed reliance upon decision of Karnataka High Court rendered in Syed Kaleem vs. M/s Mysore Lakshmi Beedi Works & Anr., reported in 1993 CRI.L.J.232 and the decision of Calcutta High Court rendered in Zahir Ahmed vs. Azam Khan, reported in 1996 CRI.L.J. 290.
The learned counsel for the petitioner has also argued that the learned trial court had committed illegality in framing the charges against the petitioner for the offences punishable under sections 103 and 104 of the Act of 1999. It has been contended on behalf of the petitioner that in the case in hand, the premises of the petitioner was raided and the goods were seized by the Sub-Inspector only, whereas as per sub-section (4) of section 115 of the Act of 1999, any police officer not below the rank of Deputy Superintendent of Police or equivalent can only search the shop or seize the goods and that is also as per the opinion of the Registrar. It has also been contended that neither the police inspector, who had raided the premises of the petitioner, was an officer of the rank as mentioned in sub-section (4) of section 115 of the Act of 1999, nor 5 any such opinion was obtained from the Registrar before making search and seizure. The learned counsel for the petitioner has also contended that the action of the learned trial court in framing the charges against the petitioner for the alleged offences punishable under section 420 IPC and sections 103 and 104 of the Act of 1999 is bad in the eye of law, and therefore, the order of framing of charges is liable to be rejected. It has further been contended by the learned counsel for the petitioner that the learned revisional court has also not taken into consideration this aspect of the matter and erred in affirming the order of framing charge passed by the learned trial court.
Per contra, learned Public Prosecutor has supported the impugned orders passed by both the courts below and prayed for dismissal of this criminal misc. petition.
This Court has considered the submissions made by the learned counsel for rival parties and perused the record.
As per sub-section (3) of section 115 of the Act of 1999, the offences punishable under section 103 or section 104 of the Act of 1999 are cognizable. Section 154 of the Code of Criminal Procedure authorises an officer-in-charge of police station to 6 receive information relating to the commission of cognizable offences. Section 156 of the CrPC empowers the police officer to investigate the cognizable case. Sections 154 and 156 of CrPC are reproduced hereunder:
"154. Information in cognizable cases.--(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate 7 the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
156. Police officer's power to investigate cognizable case.--(1)Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under
section 190 may order such an
investigation as above- mentioned.
In the case in hand, the police officer had received an information from the respondent No.3 regarding commission of offences punishable under sections 103 and 104 of the Act of 1999, which are cognizable, then no fault can be found in the action of the said police officer in raiding the premises of the 8 petitioner and seizing the bags of fake cement. When he had received an information regarding the commission of cognizable offence, section 154 of the CrPC authorises him to receive any such information and section 156 CrPC empowers him to investigate into the case involving an cognizable offence.
Sub-section (4) of section 115 of the Act of 1999 provides that any officer not below the rank of Deputy Superintendent of police or equivalent, may search and seize without warrant the goods, if he is satisfied with any of the offences punishable under sections 103, 104 and 105 is being or likely to be committed. As per proviso to sub-section (4) of section 115 of the Act of 1999, before making any such search and seizure, the said police officer shall obtain the opinion of the Registrar and shall abide by the opinion so obtained. This Court is of the opinion that the provisions of sub-section (4) of section 115 of the Act of 1999 do not restrict the powers of a police officer to receive information in respect of any cognizable offence under section 154 CrPC and to investigate the same under section 156 of the Code of Criminal Procedure.
On the other hand, as per sub-section (4) of section 115 of the Act of 1999, a police officer not below the rank of Deputy Superintendent of Police, can 9 also seize and search any premises or goods on receiving any such information regarding the commission of offences punishable under sections 103, 104 and 105 of the Act of 1999. Sub-section (4) of Section 115 of the Act of 1999 is an enabling provision and in no manner restricts the powers of a police officer to receive information and to investigate in relation to the commission of cognizable offences as per the procedure provided under Chapter XII of the CrPC.
The another argument of the learned counsel for the petitioner that the charges for the offence punishable under section 420 IPC cannot be framed when the charges for the offences punishable under sections 103 and 104 of the Act of 1999 have been framed, is not tenable in view of the fact that the evidence to this effect exists on record which suggests that the petitioner was selling fake cement of J.K.Brand at a cost of Rs.100/- per bag, whereas the genuine cement of J.K.Brand was of the cost of Rs.130/- per bag at that time. It can be presumed that selling of the bag of fake cement posing it to be genuine at a less rate is an act of inducement on the part of the petitioner to lure the customers. Ingredients required to constitute an offence of cheating are available on record and, therefore, the trial court has not committed 10 any illegality in framing charges against the petitioner for the offence punishable under section 420 IPC.
The decisions cited by the learned counsel for the petitioner in Syed Kaleem vs. M/s Mysore Lakshmi Beedi Works & Anr. and in Zahir Ahmed vs. Azam Khan (supra) are of no help to the petitioner as the same were passed after taking into consideration the provisions of sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 (for short 'the Act of 1958 hereinafter) in which the said offences were termed as non-cognizable, however, with the repeal of Act of 1958, the Act of 1999 came into operation and as per the provisions of sub-section (3) of section 115 of the Act of 1999, the offences under section 103 and 104 of the Act of 1999 are cognizable and as such the offences punishable under sections 103 and 104 of the Act of 1999 can be investigated by a police officer as per procedure provided under sections 154 and 156 of the Code of Criminal Procedure.
In view of the above discussions, there is no merit in this petition and the same is hereby dismissed.
[VIJAY BISHNOI],J.
m.asif/-