Rajasthan High Court - Jaipur
Dinesh Singhal vs State on 7 January, 2013
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Criminal Misc. Petition No. 1037/2009 Dinesh Singhal versus State of Rajasthan through PP 7.1.2013 HON'BLE MR. JUSTICE MN BHANDARI Mr VR Bajwa for petitioner Mr Laxman Meena, PP for the State BY THE COURT:
By this criminal misc. petition, a challenge is made to the order framing charges by the trial court against the petitioner for the offence under section 417, 486 and 120(B) Indian Penal Code, section 63(A) of the Copyright Act, 1957 and sections 78 and 79 of the Trade and Merchandise Marks Act, 1958.
It is stated that a case for offence under section 417 IPC is not made out even if the story given in the FIR is taken into consideration. As alleged, adulterated 'ghee' was not put for sale thus offence under section 417 IPC is not made out and same is the position in regard to offence under section 486 IPC.
It is further submitted that an offence under provisions of the Copyright Act can be made out only when it is in violation of some of the works mentioned in section 14 of the Copyright Act. It can be for the work given under section 14 but none of those works have been infringed so as to make out a case for violation of the Copyright Act, 1957 thus framing of charge for the offence under the Copyright Act is illegal.
So far as violation of section 78 and 79 of the Trade & Merchandise Marks Act is concerned, it can not be tried at the instance of the police as separate procedure is given under the special legislation thus it can be tried by the procedure given therein. Accordingly, charge framed under section 78 and 79 of the Trade and Merchandise Marks Act deserves to be set aside.
It is further stated that as per section 26 of the General Clauses Act, 1897 where an act or omission constitute an offence under two or more enactments, offender shall be liable to be prosecuted and punished under either or any of the enactments but shall not be liable to be punished twice for the same offence. Accordingly, petitioner cannot be tried separately for violation of the provisions of the Prevention of Food Adulteration Act, 1954 as separate complaint has already been initiated. The petitioner is now tried for both the offences in regard to the same incidence pursuant to the charges framed vide impugned order thus it is in violation of section 26 of the General Clauses Act, 1897, hence, not only the charges framed deserve to be set aside but proceedings should not be allowed to continue in view of section 26 of the General Clauses Act.
Learned PP, on the other hand, supported the impugned order framing charges against the petitioner.
I have considered rival submissions of the parties and perused the record.
It is a case where initially an FIR was lodged for offence under section 420, 486 and 120(B) IPC, 78 and 79 of the Trade & Merchandise Marks Act, section 63-A of the Copyright Act and section 7/16 of the Prevention of Food Adulteration Act, 1954. While charges were framed, charges for offence under the Prevention of Food Adulteration Act, 1954 were dropped and petitioner was discharged. It is stated that on a complaint by the Food Inspector, separate proceedings are going on under Prevention of Food Adulteration Act, 1954.
So far as charges framed against the petitioner for offence under sections 417 and 486 IPC are concerned, it is stated that offence is not made out as material was put for sale, accordingly, a case of cheating cannot be said to have been made out.
I have considered the submission and find that from the record, it has come that adulterated 'ghee' was manufactured and equipments have been seized, it was transported through M/s Gill Sindhu Haryana Company for its onward transaction. It is, no doubt, true that seizure was made and samples were taken from the godown but, at this stage, it would be too early to presume that it was not made out for sale. In view of the above and without making any comment on the merit of the case which may affect outcome of the trial, I do not find any illegality in the impugned order framing charges for offence under section 417, 486 and 120B IPC.
So far as charge framed for offence under section 63(A) of the Copyright Act, 1957 is concerned, reference of section 14 of the Act of 1957 has been given. It would be necessary to quote the same hereunder-
14. Meaning of copyright.- For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-
(a) in the case of a literary, dramatic or musical work, not being a computer programme, -
(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;
(ii) to issue copies of the work to the public not being copies already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);
(b) in the case of a computer programme,-
(i) to do any of the acts specified in clause (a);
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme:
Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.
(c) in the case of an artistic work,-
(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not being copies already in circulation;
(iv) to include the work in any cinematograph film;
(v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);
(d) In the case of cinematograph film, -
(i) to make a copy of the film, including a photograph of any image forming part thereof;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the film to the public;
(e) In the case of sound recording, -
(i) to make any other sound recording embodying it;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the sound recording to the public.
Explanation : For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation.
Perusal of section 14 shows that as to what type of work falls under the Act. I find and perusal of the record, it cannot be said that charge is made out after considering section 14 of the Act. Thus, taking this in totality of the facts, I do not find that charge for offence under section 63(A) of the Copyright Act, 1957 is made out against the petitioner. Accordingly, framing of charge for offence under section 63(A) of the Copyright Act, 1957 is not mad out and petitioner is ordered to be discharged for the said offence.
So far as offence under section 78 and 79 of the Trade & Merchandise Marks Act is concerned, without commenting on the merit of the case which may otherwise affect outcome of the trial, prima facie case exists for framing of charges for offence under sections 78 and 79 of the Act of 1958 thus impugned order to this effect cannot be interfered, rather, the order is maintained for the aforesaid purpose.
The next question for my consideration is in regard to section 26 of the General Clauses Act, 1897. For ready ready reference, provision aforesaid is quoted hereunder-
26. Provisions as to offences punishable under two or more enactments - Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
Perusal of the provision quoted above shows that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. Here, if the facts of this case are taken into consideration, it is not that same act and omission constituted offence under two enactments. For offence under the Prevention of Food Adulteration Act, complaint was filed by the Food Inspector, whereas, for other offence, it is on an FIR. The constitution of offence is under different provisions and for different acts. For illustration, if adulterated 'ghee' is manufactured, one would be liable to be punished for such an act under Prevention of Food Adulteration Act. If it is use or put on sale then definitely it would be separate act or omission constituting a separate offence punishable under IPC. In the same manner, if the Trade and Merchandise Marks Act is pressed, it is on account of use of brand of a particular mark or trade. That would be third act or omission thus instant case is not based for an offence based on same act and omission. The illustration shows different act and omission, may be part of same incidence. In view of the facts situation and the explanation, section 26 of the General Clauses Act is not attracted in this case. It is apart from the fact that even at the instance of the petitioner, the argument for discharging him from the charges under the Prevention of Food Adulteration Act was accepted because it may be tried in a separate proceeding in the hands of Food Inspector and not at the instance of the police. Once aforesaid argument was accepted it became clear that separate proceeding shall be initiated for an act and omission forming separate offence thus be prosecuted separately.
In view of the discussion made above, even the last argument made by learned counsel for petitioner cannot be accepted. The impugned order framing charges for the offence under sections 417, 486 and 120(B) IPC so as under sections 78 and 79 of the Trade and Merchandise Marks Act against the petitioner is maintained. However, petitioner is discharged from the charge for offence under section 63(A) of the Copyright Act, 1957.
With the aforesaid, criminal misc. petition so as the stay application are disposed of.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-JW