Madhya Pradesh High Court
Priya Shrivastava vs The State Of Madhya Pradesh Thr on 4 December, 2019
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 MCRC-12998-2018
THE HIGH COURT OF MADHYA PRADESH
MCRC-12998-2018
(Priya Shrivastava Vs. State of M.P. and others)
Gwalior, Dated : 04-12-2019
Shri Sunil Kumar Jain, counsel for the applicant.
Shri R.K. Upadhyay, Public Prosecutor for the respondents No.
1 and 2/State.
Shri Sanjay Dwivedi, counsel for the respondent No.3 Heard finally.
This application under Section 482 of Cr.P.C. has been filed seeking quashment of F.I.R. No. 69/2018 registered by police station Girwai, Distt. Gwalior for offence under Sections 103, 104 of Trade Marks Act, 1999.
The necessary facts for disposal of the present application in short are that on the written complaint of the complainant/respondent no.3, F.I.R. No. 69/2018 has been registered under Sections 103, 104 of Trade Marks Act, 1999 (In short Act, 1999). The allegations are that the petitioner is indulged in manufacturing putti which resembles with Birla White Putti. The police has seized several material, machines, electric equipments etc. The police after completing the investigation has filed the charge-sheet against the applicant for above mentioned offence.
It is submitted that the Court could not have taken cognizance of the matter due to violation of provisions of Section 115(4) Proviso of Act, 1999.
2 MCRC-12998-2018 Per contra, it is submitted by the Counsel for the respondents, that prima facie material is against the applicant, to show that it had violated the Trade Mark of the complainant.
Heard the learned Counsel for the parties. Section 115 of Trade Marks Act, reads as under :
"115. Cognizance of certain offences and the powers of police officer for search and seizure.
-- (1) No court shall take cognizance of an offence under Section 107 or Section 108 or Section 109 except on complaint in writing made by the Registrar or any officer authorised by him in writing:
Provided that in relation to clause (c) of sub- section (1) of Section 107, a court shall take cognizance of an offence on the basis of a certificate issued by the Registrar to the effect that a registered trade mark has been represented as registered in respect of any goods or services in respect of which it is not in fact registered. (2) No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the First Class shall try an offence under this Act. (3) The offences under Section 103 or Section 104 or Section 105 shall be cognizable.
(4) Any police officer not below the rank of Deputy Superintendent of Police or equivalent, may, if he is satisfied that any of the offences referred to in sub-section (3) has been, is being, or is likely to be, committed, search and seize without warrant the goods, die, block, machine, plate, other instruments or things involved in committing the offence, wherever found, and all the articles so seized shall, as soon as practicable, be produced before a Judicial Magistrate of the First Class or Metropolitan Magistrate, as the case may be:
Provided that the police officer, before making any search and seizure, shall obtain the opinion of the Registrar on facts involved in the offence relating to trade mark and shall abide by the opinion so obtained.
(5) Any person having an interest in any article
3 MCRC-12998-2018 seized under sub-section (4), may, within fifteen days of such seizure, make an application to the Judicial Magistrate of the First Class or Metropolitan Magistrate, as the case may be, for such article being restored to him and the Magistrate, after hearing the applicant and the prosecution, shall make such order on the application as he may deem fit.
It is submitted that the police, before carrying out the search has not obtained the opinion of the Registrar on facts involved and therefore, the prosecution of the applicant is bad in law and thus, liable to be quashed.
Section 115(1) of Act, 1999 provides that no Court shall take cognizance of offence under Section 107,108 or 109 except on complaint in writing made by the Registrar or any officer authorised by him in writing.
However, Section 115(4) of Act, 1999, deals with the procedure to be adopted by the police. It is the case of the applicant, that the police has not followed the procedure as laid down in Proviso to Sub-Section 4 of Section 115 of Act, 1999.
It appears that the charge-sheet was filed during the pendency of this application, however, the applicant has not challenged the charge-sheet on the ground of Section 115(1) of Act, 1999. Therefore, the question of maintainability of charge-sheet is not being considered in absence of any challenge to the same.
The only argument which has been advanced by the applicant is that since, the Police had not obtained opinion from the Registrar, therefore, the F.I.R. was bad.
4 MCRC-12998-2018 In the present case, the investigation is already complete and the charge-sheet has been filed.
The Supreme Court in the case of H.N. Rishbud Vs. Union of India, reported in AIR 1955 SC 196 has held as under :
"9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality, vitiating the proceedings or a mere irregularity arises.
A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Cr. P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance, Section 190, Cr. P. C. is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e., Sections 193 and 195 to 199.
These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a),
(b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b). of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding
5 MCRC-12998-2018 antecedent to the trial. To such a situation Section 537, Cr.P.C. which is in the following terms is attracted :
"Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice."
If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in -'Prabhu v. Emperor', AIR 1944 PC 73 (C) and .- 'Lumbhardar Zutshi v. The King', AIR 1950 PC 26 (D).
These no doubt relate to the illegality of arrest in the course of investigation which we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court.We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby." The Supreme Court in the case of Union of India Vs. Nathamuni reported in (2014) 16 SCC 285 has held as under :
"12. It is clear that in the case of investigation under the Delhi Special Police Establishment Act, an officer below the rank of Inspector cannot investigate without the order of a competent Magistrate. In the present case, order of the Special Judge was obtained by filing an application. That order dated 24-9-2009
6 MCRC-12998-2018 shows that it was passed on request and in the interest of justice, investigation pursuant to such order did not suffer from want of jurisdiction and hence, in the facts of the case, the High Court erred in law in interfering with such investigation more so when it was already completed.
13. The question raised by the respondent is well answered by this Court in a number of decisions rendered in a different perspective. The matter of investigation by an officer not authorised by law has been held to be irregular. Indisputably, by the order of the Magistrate investigation was conducted by the Sub-Inspector, CBI who, after completion of investigation, submitted the charge-sheet. It was only during the trial, objection was raised by the respondent that the order passed by the Magistrate permitting the Sub-Inspector, CBI to investigate is without jurisdiction. Consequently, the investigation conducted by the officer is vitiated in law. Curiously enough the respondent has not made out a case that by reason of investigation conducted by the Sub- Inspector a serious prejudice and miscarriage of justice has been caused. It is well settled that invalidity of the investigation does not vitiate the result unless a miscarriage of justice has been caused thereby." Thus, if the police has carried out the search without obtaining the opinion of the Registrar, then at the best, it can be said to be an irregularity. Further, it appears that there is a direct conflict between Section 115(4) and its proviso. Section 115(3) of Act, 1999 provides that the offence under Sections 103,104,105 shall be cognizable and Section 115(4) of Act, 1999 provides that if a police officer not below the rank of Dy.S.P. is satisfied that any of the offences referred to in sub-section (3) has been, is being or is likely to be committed, search and seize without warrant the goods, die, block, machine, plate, other instruments or things involved in committing the offence, where as proviso to Section 115(4) of Act, 1999 provides that before making 7 MCRC-12998-2018 any search and seizure, the police officer shall obtain the opinion of the Registrar. If the provisions are read as they are, then it would appear that before making search and seizure, the police officer, is required to obtain opinion of the Registrar, whereas as per Section 115(4) of Act, 1999, the police officer can seize and search if he is satisfied that any of the offences referred in Section 115(3) of Act, 1999 has been, is being, or is likely to be committed. Without effecting the seizure, the police officer, cannot send any article to the Registrar for its opinion and if proviso to Section 115(4) of Act, 1999 is given effect, then the police cannot make seizure without the opinion of the Registrar. Therefore, if plain interpretation is given to Section 115(4) and its proviso, then there appears to be "head on collision" between two provisions. It is well established principle of law that any interpretation which lead to "head on collision"
should be avoided.
However, as the charge sheet has already been filed, therefore, this Court is of the considered opinion, that this question should be left open, so that the same can be decided in a proper case, because it is clear from the Proviso to Section 115(4) of Act, 1999, the opinion of the Registrar is binding on the police only and not on the Court.
The Court will have to decide the allegations on the basis of the evidence which would come on record.
Therefore, even if any irregularity has been committed by the police during the investigation, then the same shall not result into
8 MCRC-12998-2018 quashment of the charge sheet and now it is for the Trial Court to decide that whether the applicant has infringed the Trade Marks or not?
Accordingly, this Court is of the considered opinion, that no case is made out for interference by this Court.
Resultantly, this application fails and is hereby Dismissed.
(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2019.12.17 11:44:25 +05'30'