Kerala High Court
Kunhali vs The State on 1 November, 2012
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
THURSDAY, THE 1ST DAY OF NOVEMBER 2012/10TH KARTHIKA 1934
Crl.Rev.Pet.No. 102 of 2003 ( )
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CRA.295/1999 of ADDL.D.C. KOZHIKODE-III
CC.67/1994 of C.J.M.,KOZHIKODE
REVISION PETITIONER(S)/(ACCUSED):
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1. KUNHALI, S/O. CHEKKUTTY HAJI,
KAITHAKKATH HOUSE, MUNNIYOOR AMSOM DESOM
MALAPPURAM.
2. KUTTIAN KOYA, S/O. MAMMED KUTTY,
THIYYATHODIYIL HOUSE, KUTTIKATTUR AMSOM DESOM
MALAPPURAM DISTRICT.
3. ABDUL SALIM, S/O. MOHAMEDALI,
PADINHATTATHODI HOUSE, CHUNKIPARAMBA, CHELEMBRA
MALAPPURAM.
4. MAJEED, S/O. ABOOBACKER,
MALAYIL HOUSE, THALAKULATHUR AMSOM DESOM, PARAMBATH.
BY ADV. SRI.T.KRISHNAN UNNI (SR.)
COMPLAINANT(S):
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.BIJU MEENATOOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
19-10-2012, THE COURT ON 1.11.2012 PASSED THE FOLLOWING:
S.SIRI JAGAN, J.
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Crl.R.P.No. 102 of 2003
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Dated this the 1st day of November, 2012
O R D E R
The accused, numbering four, in Calendar Case No. 67 of 1994 before the Chief Judicial Magistrate, Kozhikode, are the petitioners in this Criminal Revision Petition. The petitioners were prosecuted for offences punishable under Section 420 read with Section 486 read with Section 34 of the Indian Penal Code and Section 79 of the Trade and Merchandise Marks Act, 1958. The prosecution case is as follows:
On 27-10-1993 at about 1.30 P.M., the accused were caught making fake beedies in the model of "Kerala Dinesh Beedies" for sale in the building bearing door No. 17/1218 of Kozhikode Corporation. The 1st accused had rights over the building and the same was in his possession. The accused had also made fake labels to be affixed on the bundles of beedies and fake wrappers to wrap the beedies and fake stamps of "Kerala Dinesh Beedies". PW1 received information that fake Dinesh beedies were being manufactured at Chinthavalappu near Palayam, Kozhikode and sold as "Kerala Dinesh Beedies". PW1 filed Ext. P1 complaint before the Kasba police. The police conducted a search of the building at 1.30 P.M. on 27-10-1993. PW1 also accompanied the police. In the abovesaid building, they found the accused Crl.R.P.102/03 - : 2 :-
preparing bundles of fake beedies in the model of "Kerala Dinesh Beedies" for sale. They also found fake labels wrappers etc. Thus the accused cheated the Kerala Dinesh Beedi Central Co-
operative Society. Thereby the accused committed offences punishable under Sections 420 read with Section 486 read with Section 34 of the Indian Penal Code and Section 79 of the Trade and Merchandise Marks Act, 1958.
2. The Chief Judicial Magistrate convicted all the accused and sentenced them to undergo rigorous imprisonment for one year under section 420 of the I.P.C. and rigorous imprisonment for six months under Section 79 of the Trade and Merchandise Marks Act, 1958. The sentences were to run concurrently. All the accused together filed Criminal Appeal No. 295 of 1999 before the Court of Sessions, Kozhikode, which was dismissed, confirming the conviction and sentences. The petitioners are challenging the judgments of the courts below in this Crl.R.P.
3. The petitioners raise five contentions before me. The first is that the entire prosecution is vitiated for non-compliance with the procedure prescribed under Section 155 of the Code of Criminal Procedure. The complaint filed by PW1 having not Crl.R.P.102/03 - : 3 :-
disclosed an offence under Section 420 or 486 of the I.P.C and the offence under Section 79 of the Trade and Merchandise Marks Act, 1958 being a non-cognisable offence, the police could not have conducted the investigation without obtaining orders from the magistrate having jurisdiction to try the case as stipulated in Section155 (2) of the Code of Criminal Procedure and the same having not done in this case, the petitioners are entitled to an acquittal in this case, is the contention raised. In support of that contention the counsel for the petitioners rely on the following decisions:
(a)Subodh Singh Modak V. The State, 1974 Cri.L.J. 185;
(b)Kunhumuhammed V. State of Kerala, 1981 KLT 50;
(c)Dharam Pal & tohrs V. State of U.P, & another, 2006 Cri.L.J. 1421; and
(d)Mehaboob V. State, 2011 (2) KLT 236.
The second is that the ingredients of an offence under Section 420 have not been made out in this case and therefore the lower courts could not have entered a conviction under that section against the petitioners. The third is that there is no reliable Crl.R.P.102/03 - : 4 :-
evidence to find the petitioner guilty of the offences charged against them. The fourth is that no trade mark registration has been proved in this case for finding the petitioners guilty of an offence under Section 79 of the Trade and Merchandise Marks Act, 1958. The last is that the prosecution has not succeeded in proving the possession of the premises in question by the 1st accused, for a conviction on the basis that the 1st accused had control over the premises, where the offences were allegedly committed.
4. In answer, the learned Public Prosecutor would contend that none of the grounds are tenable. He points out that since both the courts have found the petitioners guilty of offence punishable under Section 420 also, the 1st contention has no relevance, since an offence under Section 420 is a cognisable offence. Further such a contention was never taken before the trial court. It is further contended that even assuming that there is violation of the provisions of Section 155(2) of the Cr.P.C., that does not vitiate the trial conducted without noticing such a defect in the investigation. In support of that contention, the learned public prosecutor relies on the following decisions:
Crl.R.P.102/03 - : 5 :-
(a)H.N. Rishbud & another V. State of Delhi, AIR 1955 SC 196;
(b)Bansidhar V. State, AIR 1959 Rajasthan 191;
(c)Kunhumuhammed V. State of Kerala, 1981 KLT 50;
(d)C. Muniappan & others V. State of Tamilnadu, (2010) 9 SCC 567;
(e)Rattiram V. State of M.P., 2012 (2) KLT 498 (SC); and
(f)Dayal Singh & others V. State of Uttaranchal, 2012 (2) KLD 443 (SC).
In respect of the 2nd contention he submits that even if no prosecution will lie for an offence under Section 420, the facts disclosed in evidence would spell out an offence punishable under Chapter XVIII of the Indian Penal Code, particularly under Sections 463, 482, 483 and 486 of the Indian Penal Code. Regarding the 3rd contention he points out that sufficient evidence has been adduced to prove the guilt of the petitioners beyond a reasonable doubt, especially since the petitioners were caught red-handed while committing the offences. As far as the proof of trade mark is concerned, according to him, there is Crl.R.P.102/03 - : 6 :-
sufficient oral evidence, which has not been challenged, to prove the trade mark and further that for bringing home an offence under Section 79 of the Trade and Merchandise Marks Act, 1958, proof of false trade description is sufficient, which has been sufficiently proved. On the last contention of the petitioners, the answer of the Public Prosecutor is that the ownership of the building by the father of the 1st petitioner has been proved by sufficient evidence and at the time of detection of the offence, the 1st petitioner was also caught red-handed from the very same building which proves the possession of the building by the 1st petitioner at the time of detection of the offences.
5. At the outset, it has to be accepted that no ingredient of Section 420 of the Indian Penal Code has been made out in this case. Section 420 of the Indian Penal Code reads thus:
"420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
In this case the allegation is that M/s. Kerala Dinesh Beedi Central Co-operative Society has been cheated. So as to attract Crl.R.P.102/03 - : 7 :-
Section 420, the prosecution has to prove that the petitioners have induced Kerala Dinesh Beedi Central Co-operative Society to deliver property to any person by cheating. The prosecution has no case that Kerala Dinesh Beedi Central Co-operative Society has been induced by the petitioners to deliver property to any person by cheating. As such no prosecution would lie under Section 420 of the Indian Penal Code.
6. If no prosecution would lie under Section 420 of the Indian Penal Code, the only other offence/s disclosed, either under Section 79 of the Trade and Merchandise Marks Act, 1958 or under Chapter XVIII of the Indian Penal Code (the culpability of the petitioners for which I shall deal with later in this judgment), would be a non-cognisable offence, in which case the police officer, who had received the complaint of PW1, was bound to follow the mandatory procedure prescribed under Section 155(2) of the Code of Criminal Procedure, which contemplates an order from the magistrate having jurisdiction to try the offence for investigating the same. Admittedly in this case the said procedure has not been followed. In such circumstances, the next question to be decided in this case is the effect of the non-compliance with the procedure prescribed under Section Crl.R.P.102/03 - : 8 :-
155 of the Code of Criminal Procedure, on the prosecution of the petitioners in this case. The learned counsel for the petitioners would contend that in view of the decisions quoted by them, the entire prosecution is vitiated and therefore the petitioners are entitled to be acquitted. On the other hand relying on the decisions quoted by him, including that of Kunhumuhammed's case (supra) relied on by the counsel for the petitioners themselves, the learned Public Prosecutor would contend that the non-compliance would not invalidate the trial and conviction of the petitioners as also the sentence imposed on them. The question as to whether for want of compliance with the mandatory procedure under the Code of Criminal Procedure in the matter of investigation would vitiate the trial was considered by the Supreme Court in Rishbud's case (supra), which holds the field even now. In that decision the Supreme Court held thus in paragraphs 9 and 10:
"(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.
Crl.R.P.102/03 - : 9 :-
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 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 Crl.R.P.102/03 - : 10 :-
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.
(10). It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial.
When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for.
Such a course is not altogether outside the contemplation of the scheme of the Code as appears from section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case. When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under section 537, Cr. P. C. of making out that such an error has in fact occasioned a failure of justice.
It is relevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error, explanation to section 537. Cr. P. C. indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused. It is true that the peremptory provision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate.
But this is not any indication by the Legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice. When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation. The Crl.R.P.102/03 - : 11 :-
granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it.
In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of section 5-A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined."
(underlining supplied) Going by the said decision, solely for want of compliance with the mandatory procedure under the Code of Criminal Procedure in the matter of investigation, the trial would not be vitiated. Of course, the counsel for the petitioner would contend that it is after considering the said decision that this court has rendered Kunhumuhammed's case (supra), which is in the context of non-compliance of the procedure prescribed under Section 155 of the Code of Criminal Procedure itself, which is squarely applicable in this case. On a consideration of Kunhumuhammed's case (supra), I am of the opinion that the same does not lay down any different law on the subject, which is clear from paragraph 16 of the said decision, which reads thus:
"16. It is therefore clear that there is only minor change introduced by the provisions of the new Code. A consideration of the judicial precedents referred to above in the light of the Crl.R.P.102/03 - : 12 :-
changes made in the new Code, would suggest the following propositions as being applicable under the new Code. (I) S.155 (2) of the new Code prohibits investigation by a police officer into a non-cognizable offence without the order of a Magistrate. A violation of this provision would stamp the investigation with illegality. (2) This defect in the investigation can be obviated and prejudice to the accused avoided by the Magistrate ordering investigation under S.202 of the Code (3) The report of a police officer following an investigation contrary to S 155 (2) could be treated as a complaint under S.2 (d) and S.190 (1) (a) of the Code if at the commencement of the investigation the police officer is led to believe that the case involved commission of a cognizable offence or if there is doubt about it and investigation establishes only commission of a non-cognizable offence. (4) If at the commencement of the investigation it is apparent that the case involved only commission of a non-cognizable offence, the report followed by investigation cannot be treated as a complaint under S.2(h) or S.190(l)(a) of the Code. (5) Whenever a report of a police officer relating to a non-cognizable offence is brought to the notice of a Magistrate he has has to look into the matter and apply his judicial mind and find out whether (a) it is a case where re- investigation has to be ordered under S.202 of the Code, or (b) whether it could be treated as a complaint under S.2(h) and S.190
(l)(a) of the Code and if so cognizance could be taken, (c) or whether it is a case where the report cannot be treated as a complaint under S.2(h) and S.190(l)(a) of the Code or (d) it is a fit case for taking cognizance taking into consideration all the attendant circumstances. (6) If these aspects are not brought to the notice of or adverted to by the Magistrate at that stage and trial is concluded, the trial cannot be said to be vitiated on account of the defect as the defect in the investigation precedent to trial could be cured by S.463 of the new Code, unless failure of justice has been occasioned thereby."
(underlining supplied) Here what is applicable is the 6th proposition laid down by the learned judge, insofar as the violation of the procedural requirement was not brought to the notice of or adverted to by the magistrate and the trial was concluded without anybody noticing the said illegality in investigation. Therefore, the law as discernible from the above decisions is that, unless the petitioners show that failure of justice has been occasioned by Crl.R.P.102/03 - : 13 :-
the illegality in the investigation, the trial cannot be said to be vitiated.
7. This position of law has been further reiterated by the Supreme Court in their subsequent decisions. In paragraph 55 of Muniappan's case (supra) the Supreme Court has held thus:
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandrakant Luxman v. State of Maharashtra, (1974) 3 SCC 626, Karnel Singh v. State of M.P., (1995) 5 SCC 518, Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517, Paras Yadav v. State of Bihar, (1999) 2 SCC 126, State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715, Amar Singh v. Balwinder Singh, (2003) 2 SCC 518, Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC 57 and Ram Bali v. State of U.P., (2004) 10 SCC 598)"
(underlining supplied)
8. In Rattiram's case (supra), the Supreme Court considered the question as to whether trial is vitiated in cases where the same is conducted by the court in violation of Section 193 of the Code of Criminal Procedure, in taking cognisance of a complaint directly, without the case having been committed to it Crl.R.P.102/03 - : 14 :-
by the magistrate. In paragraphs 45 to 49, the Supreme Court has held thus:
"45. In our considered opinion, because of the restricted role assigned to the Magistrate at the stage of commitment under the new Code, the non-compliance of the same and raising of any objection in that regard after conviction attracts the applicability of the principle of 'failure of justice' and the convict-appellant becomes obliged in law to satisfy the appellate court that he has been prejudiced and deprived of a fair trial or there has been miscarriage of justice. The concept of fair trial and the conception of miscarriage of justice are not in the realm of abstraction. They do not operate in a vacuum. They are to be concretely established on the bedrock of facts and not to be deduced from procedural lapse or an interdict like commitment as enshrined under S.193 of the Code for taking cognizance under the Act. It should be a manifestation of reflectible and visible reality but not a routine matter which has roots in appearance sans any reality. Tested on the aforesaid premised reasons, it is well nigh impossible to conceive of any failure of justice or causation of prejudice or miscarriage of justice on such non-compliance. It would be totally inapposite and inappropriate to hold that such non-compliance vitiates the trial.
46. At this juncture, we would like to refer to two other concepts, namely, speedy trial and treatment of a victim in criminal jurisprudence based on the constitutional paradigm and principle. The entitlement of the accused to speedy trial has been repeatedly emphasized by this Court. It has been recognised as an inherent and implicit aspect in the spectrum of Art.21 of the Constitution. The whole purpose of speedy trial is intended to avoid oppression and prevent delay. It is a sacrosanct obligation of all concerned with the justice dispensation system to see that the administration of criminal justice becomes effective, vibrant and meaningful. The concept of speedy trial cannot be allowed to remain a mere formality (see Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar (1980) 1 SCC 81, Moti Lal Saraf v. State of Jammu & Kashmir (2006 (4) KLT SN 43 (C.No.61) SC = AIR 2007 SC 56) and Raj Deo Sharma v. State of Bihar (1999 (1) KLT 173 (SC) = AIR 1998 SC 3281).
47. While delineating on the facets of speedy trial, it cannot be regarded as an exclusive right of the accused. The right of a victim has been given recognition in Mangal Singh and Anr. v. Kishan Singh & Ors. (AIR 2009 SC 1535) wherein it has been observed thus: -
"Any inordinate delay in conclusion of a criminal trial undoubtedly has highly deleterious effect on the society Crl.R.P.102/03 - : 15 :-
generally and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence." (emphasis supplied)
48. It is worth noting that the Constitution Bench in Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. (2005 (2) KLT SN 37 (C.No.46) SC = AIR 2005 SC 2119), though in a different context, had also observed that delay in the prosecution of a guilty person comes to his advantage as witnesses becomes reluctant to give evidence and the evidence gets lost.
49. We have referred to the aforesaid authorities to illumine and elucidate that the delay in conclusion of trial has a direct nexus with the collective cry of the society and the anguish and agony of an accused. Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused but, a pregnant one, every procedural lapse or every interdict that has been acceded to and not objected at the appropriate stage would not get the trial dented or make it unfair. Treating it to be unfair would amount to an undesirable state of pink of perfection in procedure. An absolute apple pie order in carrying out the adjective law, would only be sound and fury signifying nothing."
9. The law that the fact that the investigating officer has failed to perform his duties in accordance with the requirements of law, will not in any way benefit the accused, when evidence is cogent and truthful, has been reiterated by the Supreme Court very recently, in Dayal Singh's case (supra), relying on several of its earlier decisions, including Muniappan's case (supra).
10. Reliance by the learned counsel for the petitioner, in Mehboob's case (supra) is misplaced, since the facts are not similar. In that case, the objection regarding want of compliance Crl.R.P.102/03 - : 16 :-
with the procedure under Section 155 of the Cr. P. C. was raised before the Magistrate at the threshold itself, which was overruled by the magistrate, which was interfered with by this Court. It is also pertinent to note here that after setting aside the proceedings for want of compliance with the procedure prescribed in Section 155 of the CR.P.C., the prosecution was actually given liberty to proceed after complying with the procedure under Section 155 of the Cr. P. C. That decision cannot be an authority for a fact situation, where the trial had proceeded and conviction entered, without the procedural violation under Section 155 of the Cr. P. C. having been noticed by the court, especially in view of the Supreme Court decisions quoted above. The situation is the same, in respect of the other decisions cited by the counsel for the petitioner, namely, Subodh Sing Modak's case (supra) and Dharam Pal's case (supra), where also the objection regarding want of compliance with the procedure prescribed under Section 155 was raised during trial itself and while setting aside the proceedings, liberty was given to the prosecution to cure the defect in investigation.
11. Still it has to be considered whether the non- compliance with the procedural requirement had prejudiced the Crl.R.P.102/03 - : 17 :-
defence of the petitioners in the trial. The only prejudice pointed out by the counsel for the petitioner is that the petitioners had been subjected to an arrest in violation of Article 21 of the Constitution of India. I am not satisfied that the same is the prejudice contemplated by the law laid down by the Supreme Court. For the trial to be vitiated on the ground of non- compliance with the procedure prescribed in Section 155(2) of the Cr.P.C., the petitioners have to prove that such non- compliance has prejudiced their right of defence i.e. their right to prove their innocence. I am not satisfied that such a right has been compromised by the non-compliance with the procedure stipulated by Section 155 of the Cr. P. C. by the police officer. In any event no failure of justice has occasioned on account of the illegality in the investigation. It is all the more so since the petitioners were also unaware of the procedural violation until the trial was over and the petitioners were convicted. As observed by the Supreme Court in Rishbud's case (supra), the failure of the petitioners to point out this violation at an early stage of the proceedings is a pertinent factor in deciding the question of failure of justice. As such the petitioners have not been able to point out any prejudice or failure of justice on Crl.R.P.102/03 - : 18 :-
account of the illegality in investigation. Therefore I hold that in this case, the petitioners are not entitled to any benefit on account of the police officer investigating the case without an order from the magistrate having jurisdiction to try the case as stipulated in Section 155 of the Code of Criminal Procedure.
Hence, the first contention of the petitioners cannot be countenanced by this court.
12. I have already upheld the 2nd contention of the petitioners, regarding the non-applicability of Section 420 of the Indian Penal Code to the acts proved to have been committed by the petitioners and therefore it is not necessary to advert to the same again in detail separately.
13. I do not find any merit in the third contention as well. The petitioners were caught red-handed in the course of committing the offence. The beedies seized were not "Kerala Dinesh Beedies" manufactured by Kerala Dinesh Beedi Central Co-operative Society, the apex society or any of its primary societies. The seized labels containing the description of "Kerala Dinesh Beedies" were not printed on behalf of Kerala Dinesh Beedi Central Co-operative Society. The prosecution proved that the labels were fake labels and forged documents. A rubber Crl.R.P.102/03 - : 19 :-
stamp used for stamping in the labels to make it appear that the labels were genuine has also been seized. The seizure has been properly proved. The Deputy General Manager of the printers at Sivakasi, employed by Kerala Dinesh Beedi Central Co-operative Society to print the labels, has given evidence as PW8, that the seized labels, described to have been printed by them, were not printed by them. although the witnesses of the prosecution were cross examined extensively, the same did not yield anything in favour of the petitioners, barring minor discrepancies. In any event, fake labels were seized from the petitioners and the petitioners had no explanation for the possession of the fake labels, which proves the case of the prosecution sufficiently. In any event, I do not find any demonstrable perversity in the appreciation of evidence by the lower courts. On the other hand, I am satisfied that the prosecution was successful in proving the acts constituting the offences beyond any reasonable doubt.
14. The next contention is that no documents proving registration of trade mark in favour of Kerala Dinesh Beedi Central Co-operative Society has been marked in evidence by the prosecution. I am of opinion that for proving an offence under Section 79 of the Trade and Merchandise Marks Act, 1958, it is Crl.R.P.102/03 - : 20 :-
not necessary to prove registration of trade mark as such. The said section reads thus:
"79. Penalty for selling goods to which a false trade mark or false trade description is applied.- Any person who sells, on exposes for sale, or has in his possession for sale or for any purpose of trade or manufacture, any goods or things to which any false trade mark or false trade description is applied or which, being required under section 117 to have applied to them an indication of the country or place in which they were made or produced or the name and address of the manufacturer or the person for whom the goods are manufactured, are without the indication so required, shall, unless he proves, -
(a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the trade mark or trade description or that any offence had been committed in respect of the goods; and
(b) that, on demand by or on behalf of the prosecutor, he gave all the information in his power with respect to the person from whom he obtained such goods or things; or
(c) that otherwise he had acted innocently, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both:
Provided that when the offence against this section is in relation to goods or any package containing goods which are drugs as defined in clause (b) of section 3 of the Drugs and Cosmetics Act, 1940 (23 of 1940) or "food" as defined in clause (v) of section 2 of the Prevention of Food Adulteration Act, 1954 (37 of 1954) the offender shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both." Proof of use of a false trade description is sufficient to prove an offence under the said section. The prosecution have proved that the labels seized from the petitioners contained trade descriptions applicable to Kerala Dinesh Beedies manufactured by Kerala Dinesh Beedy Central Co-operative Society, for using Crl.R.P.102/03 - : 21 :-
which the petitioners had no right or authorisation, which constitutes an offence under Section 79 of the Trade and Merchandise Marks Act, 1958. Apart from the same, in the cross examination of PW1, the petitioners themselves brought out the fact that the label and emblem of Dinesh Beedi have been registered as a trade mark and that there are documents regarding registration of the trade mark. So also while cross examining PW11, the investigating officer, the petitioners themselves brought out that he has seen the documents regarding registration of the trade mark at the office of Kerala Dinesh Beedi Central Co-operative Society. In the above circumstances I do not find any merit in this contention of the petitioners also.
15. The last contention of the petitioners is that the prosecution has not proved the possession by the 1st petitioner, of the building from where the seizure was made. There is no merit in this contention also. PW5, who is the Revenue Officer of the Calicut Corporation has proved Ext. P4-Property Tax Demand Register of the Corporation, wherein the building in question stands in the name of the father of the 1st petitioner. Apart from the same, the 1st petitioner was caught red-handed in the course Crl.R.P.102/03 - : 22 :-
of doing the acts constituting the offence from the said building and he was arrested from the said building, because of which, there is absolutely no merit in that contention also.
16. In this context, I note that although the petitioners were charge sheeted for an offence under Section 486 of the Indian Penal Code also, they were neither convicted nor acquitted under that Section. Section 486 reads thus:
"486. Selling goods marked with a counterfeit property mark.- Whoever sells, or exposes, or has in possession for sale, any goods or things with a counterfeit property mark affixed to or impressed upon the same or to or upon any case, package or other receptacle in which such goods are contained, shall, unless he proves-
(a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the mark, and
(b) that, on demand made by or on behalf of the prosecutor, he gave all the information in his power with respect to the persons from whom he obtained such goods or things, or
(c) that otherwise he had acted innocently, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."
Section 479 defines "property mark" thus:
"479. Property mark.- A mark used for denoting that movable property belongs to a particular person is called a property mark."
Section 481 of the Indian Penal Code provides thus:
"481. Using a false property mark.- Whoever marks any movable property or goods or any case, package or other receptacle containing movable property or goods, or uses any case, package or other receptacle having any mark thereon, in a manner reasonably calculated to cause it to be believed that the property or goods so marked, or any property or goods contained Crl.R.P.102/03 - : 23 :-
in any such receptacle so marked, belong to a person to whom they do not belong, is said to use a false property mark."
Section 482 of the Indian Penal Code provides thus:
"482. Punishment for using a false property mark.- Whoever uses any false property mark shall, unless he proves that he acted without intent to defraud, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."
Sections 470 and 471 of the Indian Penal Code provide thus:
'470. Forged document or electronic record.- A false document or electronic record made wholly or in part by forgery is designated "a forged document or electronic record".
471. Using as genuine a forged document or electronic record.- Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.' Section 473 of the Indian Penal Code provides thus:
"473. Making or possessing counterfeit seal, etc. with intent to commit forgery punishable otherwise.- Whoever makes or counterfeits any sale, plate or other instrument for making an impression, intending that the same shall be used for the purpose of committing any forgery which would be punishable under any section of this Chapter other than section 467, or, with such intent, has in his possession any such seal, plate or other instrument, knowing the same to be counterfeit, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Sections 463, 464 and 465 of the Indian Penal Code provide thus:
"463. Forgery.- Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
464. Making a false document.- A person is said to Crl.R.P.102/03 - : 24 :-
make a false document or false electronic record-
First- Who dishonestly or fraudulently-
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to fix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
"465. Punishment for forgery.- Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
The labels found in the possession of the petitioners were forged documents and marks used for denoting that the beedies are "Dinesh Beedies" belonging to Kerala Dinesh Beedi Central Co- operative Society. The petitioners were found in possession for Crl.R.P.102/03 - : 25 :-
sale of beedies with a counterfeit property mark and the petitioners have not chosen to prove the exceptions mentioned in the Sections. The petitioners were also found in possession of a rubber seal used to denote that the beedies were Dinesh Beedies. Therefore, I am of the opinion that the acts proved to have been committed by the petitioners constitute offences under the above Sections of the I.P.C. also.
17. In the result, while acquitting the petitioners of the offence under Section 420, I uphold the conviction of the petitioners and sentence imposed on the petitioners under Section 79 of the Trade and Merchandise Marks Act, 1958. I also hold that the petitioners are guilty of the above offences under Chapter XVIII of the Indian Penal Code also. But, since I am not inclined to impose higher or consecutive sentences for offences under those sections than what has been imposed under Section 79 of the Trade and Merchandise Marks Act, 1958, no separate punishments are imposed on the petitioners for those offences.
The Criminal Revision Petition is disposed of as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
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