Delhi District Court
Arvind Gauba vs State on 29 January, 2026
IN THE COURT OF SH. ABHISHEK GOYAL,
ADDITIONAL SESSIONS JUDGE-03, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
CNR No.: DLCT01-005062-2024
CRIMINAL REVISION No.: 126/2024
ARVIND GAUBA,
S/o. Shri. Amarjeet Gauba,
R/o. G-72, Mansarovar Garden,
New Delhi. ... REVISIONIST/
PETITIONER
VERSUS
STATE (NCT OF DELHI)
Through SHO, PS. Kashmere Gate. ... RESPONDENT
Date of e-filing : 04.04.2024
Date of institution : 06.04.2024
Date when judgment was reserved : 11.11.2025
Date when judgment is pronounced : 29.01.2026
JUDGMENT
1. The present revision petition has been filed under Sections 397 of the Code of Criminal Procedure, 1973 (hereinafter, referred to as 'Cr.P.C./Code')/pari materia with Sections 438 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as 'BNSS'), seeking setting aside of the order dated 21.12.2019 (hereinafter referred to as the 'impugned order'), passed by Ld. Additional Chief Metropolitan Magistrate-01/Ld. ACMM-01, Central, Tis Hazari Courts, Delhi (hereinafter referred to as the 'Ld. ACMM/Ld. Trial Court'), in case bearing, 'State v. Angad Rai & Ors., Cr. No. 11436/2019', arising out of FIR No. 31/2016, PS. Kashmere Gate, under Section 63 of the Copyright Act, 1957 (hereinafter referred to as the 'Copyright Act') and Sections 103/104 of Trade Marks Act, 1999 (hereinafter referred to as the 'Trademarks Act/TM Act').
CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 1 of 34
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2026.01.29
16:01:24 +0530
Pertinently, by virtue of the impugned order the Ld. Trial Court directed framing of charges under Section 63 of the Copyright Act and Sections 103/104 of the Trademarks Act inter alia against the revisionist. Needless to mention, the revisionist has further impugned the consequent charges, framed against the revisionist on 25.01.2024, pursuant to the impugned order.
2. Succinctly, the facts leading to the filing of the present proceedings are that the complainant, Sh. Ansar Khan (hereinafter referred to as the 'complainant'), Authorized Representative of M/s. Mobis India Ltd. (Hyundai) (hereinafter referred to as 'Mobis/company'), filed a complaint/application under Section 156(3) Cr.P.C. along with an application under Section 931 Cr.P.C., inter alia seeking directions to the concerned DCP/DCP, Divisional Intelligence Unit/DIU, North for general search warrants for search of all places where the offences/violation of the provisions of Copyright Act and Trademarks Act, in so far as they relate to the goods/intellectual property of the complainant/company were concerned. Notably, under the complaint, the complainant inter alia asserted that while conducting a market survey, it came to the attention of the company that various persons were involved in the manufacturing, dealing and selling of spurious/counterfeit automotive parts and packing material, purportedly manufactured by the said company/Mobis. Correspondingly, as per the complainant, the said persons were engaged in selling spurious products in the name of Mobis, by copying the artwork of Mobis and also by violating 1 Section 93 Cr.P.C. inter alia provides, "93. When search-warrant may be issued-(1)(a) Where any Court has reason to believe that a person to whom a summons or order under Section 91 or a requisition under sub-section (1) of Section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or*** (b) where such document or thing is not known to the Court to be in the possession of any person, or*** (c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection,*** it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained..." (Emphasis supplied) CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 2 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.01.29 16:01:30 +0530 the provisions under the Trademarks Act, likely to serious damage to vehicles used by public in general. Ergo, it was entreated that proper investigation, search, seizure, etc., be directed in the instant case. Remarkably, the complainant's said application under Section 156(3) Cr.P.C./Section 93 Cr.P.C. was allowed by Ld. ACMM-02, Central, Tis Hazari Court vide order dated 22.12.2015 inter alia under the following observations;
"...I have perused the complaint. During the course of arguments, Ld. Counsel for complainant has shown me some original products of complainant company which have distinctive logo and mark. He has shown me other products with deceptive logo and mark. Counsel submits that these deceptive products are being manufactured/marketed by unknown persons/firms.
In view of the above facts and circumstances, I deem it appropriate to direct DCP, DIU (North) to investigate the matter in u/s 156 (3) CrPC. The complaint is assigned to him for making necessary investigation and file report. Application of the complainant company for issuing general Search and Seizure warrants is also allowed . Necessary Search and Seizure warrants be issued u/s 93 CrPC on filing of PF. There is no need to obtain opinion of the Registrar of Trademarks.
Put up for report on ...."
(Emphasis supplied) 2.1. Subsequently, on 18.01.16, the complainant is asserted to have reached at the DIU Office and tendered information that he had concrete information that some shopkeepers were selling duplicate products of Mobis and entreated that a raid be conducted so that such perpetrators may be arrested. Consequently, a raiding team was constituted, upon discussion with the ACP, DIU, comprising of the complainant, HC Amrish, HC Sandeep, HC Dharmendra and Ct. Manish. Thereupon, the raiding team is proclaimed to have reached in the area of PS. Kashmiri Gate, made necessary progress for the raid.
CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 3 of 34
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2026.01.29
16:01:35 +0530
Correspondingly, on ascertainment of authenticity of the information tendered by the complainant, the same is asserted to be brought to the notice of the concerned ACP, DIU, besides the instant FIR came to be registered. Subsequently, the raiding party is asserted to have approached some shopkeepers to join the raiding proceedings, who are proclaimed to have refused, citing their personal reasons. Nevertheless, on complainant's pointing/identification, the team reached at shop under the name and style, 'PEE-DEE Automobile' at; 191/1, Prem Gali, Punja Sharif, Kashmiri Gate, Delhi. It is further avowed that at the said shop, one person was found sitting. The said person is further proclaimed to have been pointed out by the complainant as Pankaj Jain, who was allegedly engaged in selling of counterfeit auto parts of Mobis. On enquiry, said Pankaj Jain introduced himself as the owner of the said shop and he was apprised by the purpose of the raid, besides, was also shown the aforenoted order of the court. Congruently, Pankaj Jain is proclaimed to have got recovered from his possession/godown bearing; 200, Prem Gali, Punja Sharif, Kashmere Gate, Delhi, duplicate auto parts and packaging material, i.e., 27 (twenty seven) pieces of brake shoe- kit Santro; 6 (six) pieces of pressure clutch plate; and 16 (sixteen) pieces of clutch plate. Congruently, one piece of each seized items was also seized in separate pullandas, marked as S1 to S3, sealed with the seal of 'AD'. Thereafter, Pankaj Jain was interrogated, as well as the site plan of the spot was prepared at the instance of the complainant.
2.2. Correspondingly, on the same day at the instance of the complainant, the raiding team reached at shop no. 754/1/2-E, Ground Floor, Shri. Ram Market, Chabi Ganj, Kashmiri Gate, Delhi where one person was found sitting in the above shop and CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 4 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.01.29 16:01:39 +0530 the complainant pointed towards that person and told that he was Angad Rai, who was selling counterfeit auto parts of Mobis. On enquiry by the member of the raiding team, said Angad Rai introduced himself and informed that Arvind Gauba/the revisionist was the owner of the said shop and engaged in selling of auto-parts. Thereafter, on search from the said shop, oil seal of Hyundai is avowed to be recovered on the instance of said Angad Rai, which was identified by the complainant as counterfeit products of Mobis. Markedly, Angad Rai was asked by the members of the raiding team to show the bills/documents of the recovered products, however, he failed to show the same. Consequently, on the identification of the complainant, 191 (one hundred and ninety one) pieces of oil seal of counterfeit logo of Mobis were recovered and seized. Congruently, one piece of each was seized in separate pullanda, marked as S-4. Consequently, pursuant to the ensuing investigation, seal handing over memo was prepared, site plan was prepared at the instance of the complainant, and the case property/seized articles were deposited in the malkhana. Simultaneously, Pankaj Jain and Angad Rai were interrogated as well as arrested in the present case. Concomitantly, during the course of the ensuing investigation, the revisionist was interrogated in the present case, wherein, the revisionist is asserted to have admitted his ownership of shop no. 754/1/2-E, Ground Floor, Shri. Ram Market, Chabi Ganj, Kashmiri Gate, Delhi, leading to him being joined as an accused in the instant case. 2.3. Markedly, on the basis of the investigation conducted, the chargesheet came to be filed before the Ld. Trial Court, whereupon the Ld. Trial Court vide its order dated 25.08.2018, took cognizance of the offence(s) specified under the chargesheet and issued summons to the accused persons named CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 5 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.01.29 16:01:44 +0530 therein, including the revisionist herein. Thereafter, on accused persons' entering appearance and on compliance of the provisions under Section 207 Cr.P.C., arguments on charge were addressed by/on behalf of the accused persons as well as by Ld. Addl. PP for the State. Consequently, the Ld. Trial Court vide its order dated 21.12.2019/impugned order, though, discharged accused, Angad Rai from the present case, however, charges under Section 63 of the Copyright Act and Sections 103/104 of Trademarks Act were directed to be framed against the revisionist and co-accused, namely, Pankaj Jain. Apposite at this stage, to reproduce the relevant extract(s) from the order dated 21.12.2019/impugned order, passed by the Ld. Trial Court, as under;
"...By way of the instant order, I propose to dispose of the issue of framing of charge against the accused persons.
*** *** *** Perusal of the statutory definition of 'Designs' reveals that it specifically excludes Trademarks from the purview of the Designs Act. Thus, I concur with Ld. APP that Section 15 sub clause (2) of the Copyright Act does not come to the rescue of the accused persons. Reliance is placed upon the judgment of our own Hon'ble Delhi High Court in the matter of Midas Hygiene Industries Pvt. Ltd. Vs. Sudhir Bhatia RFA 239/240/241/2011 date of judgment 04.11.2015.
Further, it has been observed by Hon'ble Rajasthan High Court in the matter of "Shivlal Vs. State of Rajasthan & Ors." Date of decision 16.05.13 S.B Criminal Misc. Petition No. 596/05.
*** *** *** In view of the judgment of Hon'ble Rajasthan High Court in the matter of Shivlal (Supra.), I have no hesitation in holding that Section 115 sub clause 4 is merely an enabling provision and non compliance of section 115 (4) is not an incurable defect which goes to the root of the prosecution case. In my considered opinion, the entire search and seizure is not vitiated merely because it has been conducted by an officer of the rank of Sub Inspector. The effect of irregularity in conducting search or seizure is only to necessitate a careful scrutiny of the evidence of CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 6 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.01.29 16:01:49 +0530 search and seizure but the irregularities cannot altogether wipe off the search or seizure itself. Reliance is placed upon "Radha Krishan Vs. State of UP" AIR 1963 SC 822, "Bai Radha Vs. State of Gujarat" AIR 1970 SC 1396, "Sunder Singh Vs. UP"
AIR 1956 SC 411.
Sh. Angad Rai S/o Ram Bahadur was admittedly acting at the behest of the shop owner Sh. Arvind Gauba and has provided full information as to his master and the instructions, which he received from him. Thus, I have no hesitation in holding that accused Angad Rai S/o Sh. Radhey Shyam deserves to be discharged being merely a servant at the shop of Arvind Gauba.
As regards, the proposed accused persons namely Pankaj Jain and Arvind Gauba there are allegations that the said accused persons on their respective shops were selling duplicate products of the complainant company M/s Mobis India Private Limited (Hyundai) and failed to produce any satisfactory documents which show their authority from abovesaid company. The duplicate material was recovered from the possession of both accused persons.
Consequently, a prima facie offence u/s 63 of the Copyright Act and Section 103/104 of Trademarks Act is made out against accused Arvind Gauba and Pankaj Jain and no charge is framed against accused Angad Rai. Accordingly, accused Angad Rai stands discharged in present case. Ordered accordingly.
Put up for framing of charge on 18.3.2020...."
(Emphasis supplied) 2.4. Notably, subsequently, the criminal revision petition, preferred by co-accused, namely, Pankaj Jain bearing; Pankaj Jain v. State (GNCT of Delhi), Crl. Rev. Pet. No. 173/2020 came to be allowed qua the said co-accused vide order dated 03.10.2023 of the Ld. Predecessor Judge. Consequently, the Ld. Trial Court proceeded to frame the following charges against the revisionist on 25.01.2024;
"...I, ***, ACMM-01 (Central). Delhi do hereby charge you accused Arvind Gauba, S/o Sh. Amarjeet Singh as under:-
CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 7 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.01.29 16:01:53 +0530 That on 18.01.2016 at Shop No. 754/1/2-E, Ground Floor, Shri Ram Market. Chabiganj, Kashmere Gate, Delhi within the jurisdiction of PS Kashmere Gate, you accused being owner of the said shop, found making and selling counterfeit product of complainant company i.e. Hyundai (H), mentioned in seizure memo Mark 'B' recovered from abovesaid premises. The copyright and trade mark of aforesaid recovered product was with complainant company which you violated and thereby, committed offences punishable under Section 63 of the Copyright Act, 1957 and Section 103/104 of Trade Mark Act and within the cognizance of this court.
And I hereby direct that you be tried for the abovesaid offences by this Court..."
(Emphasis supplied)
3. Ld. Counsel for the revisionist submitted that the impugned order was passed by the Ld. Trial Court on mere conjunctures, surmises and in contravention of the settled cannons of law, deserving to be set aside at the outset, as suffering with gross illegality. In this regard, Ld. Counsel further submitted that the impugned order was passed by the Ld. Trial Court on mere assumptions and that no sound and/or cogent reasons have been delineated under the said order. Ld. Counsel further submitted that while passing the impugned order, the Ld. Trial Court further failed to appreciate that from the material placed on record, even the basic ingredients of the provisions/offences under Section 63 of the Copyright Act and Sections 103/104 of the Trademarks Act are not even prima facie established against the revisionist. In this regard, Ld. Counsel further vehemently asserted that the Ld. Trial Court, while passing the impugned order, failed to appreciate that mandate under the Trade Marks Act, i.e., no officer, below the rank of Deputy Superintendent of Police or equivalent may search and seize, without warrants of goods and that too only upon a satisfaction that the offences punishable under Sections 103, 104 CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 8 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.01.29 16:01:59 +0530 and 105 of the said enactment, is established. Correspondingly, it was submitted by the Ld. Counsel that the law mandated that before carrying out any such search and seizure, such officer is required to obtain an opinion of the Registrar, which shall be binding on him. However, as per the Ld. Counsel, such mandatory provisions under law have been blatantly disregarded by the concerned police officials in the instant case, besides the same have also not been considered by the Ld. Trial Court, while directing framing of charges against the revisionist herein. It was further submitted that the Ld. Trial Court ignored a crucial factor that the recovery in the instant case was allegedly affected from one, Angad Rai, S/o. Sh. Radhey Shyam, who was alleged to be working for the revisionist. However, the Ld. Trial Court discharged, Angad Rai on an assumption that whatever he was doing, he was doing at the behest of the revisionist, who, as per Angad Rai's disclosure statement was the owner of the said shop. As per the Ld. Counsel, the said presumption qua Angad Rai that whatever he was doing, was at the instructions/directions of his employer, is bad in law and merely based on a disclosure, leading to no recovery.
3.1. Ld. Counsel for the revisionist further fervently asserted/reiterated that the Ld. Trial Court failed to appreciate that neither the raid was conducted by a competent officer, as provided under the Trademarks Act, nor the alleged recovery effected before any independent witnesses. As per the Ld. Counsel, no independent witnesses were joined at the time of alleged recovery and only complainant has been joined as a witness, both in the disclosure statement of Angad Rai or that of Pankaj Jain. Ld. Counsel for the revisionist further argued that the Ld. Trial Court erred in not considered that in the instant case no opinion of any CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 9 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.01.29 16:02:04 +0530 independent technical expert was obtained to prime facie establish that the alleged recovery effected from Angad Rai was that of counterfeit articles of Mobis India Ltd. (Hyundai), rather, the complainant acted, both, as a complainant as well as a technical expert in the instant case, to the prejudice of the revisionist. Clearly, under such circumstances, Ld. Counsel asserted that there is substantial doubt in the recovery process in the instant case, benefit of which must necessarily enure in favour of the revisionist herein. It is further submitted that the Ld. Trial Court failed to appreciate that the complainant, who made a complaint of counterfeit articles was allegedly, authorized by C-3 Consultant India Pvt. Ltd., which had no assignment of any copyright work in its favour. Ergo, as per the Ld. Counsel, the said authorization is itself bad in the eyes of law, creating a substantial doubt and entitling the revisionist to the relief as prayed for in the instant petition. Even otherwise, as per the Ld. Counsel, the impugned order is also liable to be set aside on the ground that when the compliance of Section 64 of the Copyright Act was made on 19.01.2016, at that point in time, neither any opinion from the registrar nor from any independent technical expert was placed before the Court, negating the entire process. 3.2. Ld. Counsel further strenuously contended that the revisionist is even otherwise, also liable to be discharge on the grounds of equity and parity as not only accused, Angad Rai, rather, accused, Pankaj Jain who were apprehended at the spot have been discharged by the Ld. Trial Court under the impugned order and by the Ld. Predecessor Judge vide order dated 03.10.2023, respectively. It was further emphatically argued/reiterated by the Ld. Counsel for the revisionist that neither from the investigation conducted by the concerned IO/police CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 10 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.01.29 16:02:10 +0530 officials nor even on a presumption that the facts asserted under the chargesheet are correct, even prima facie case is not even made out against the revisionist herein. Ergo, as per the Ld. Counsel, the charges were wrongly/erroneously ordered to be framed against the revisionist by the Ld. Trial Court, entitling the same to be set aside. It was further submitted by the Ld. Counsel that the Ld. Trial Court also failed to give any sound, cogent or justified reasons for passing the impugned order, which adversely affects the rights of the revisionist. Consequently, the Ld. Counsel prayed that the impugned order be set aside as being passed in gross violation of law and settled judicial precedents. In support of the said contentions, reliance was placed upon the decisions in; Kishan Chand v. State of Haryana, Crl. Appeal No. 1375/2008, dated 13.12.2012 (SC); Yogarani v. State by Inspector of Police, AIR 2024 SC 4641; Manoj Kumar Soni v. State of Madhya Pradesh, AIR 2023 SC 3857; A.K. Mukherjee v. State & Anr., Crl. Misc (Main) Appeal No. 775/1994, dated 08.04.1994 (DHC); Nagin Chand Jain v. State of U.P. & Ors., 1981 AWC 752 All.; B. Balu & Ors. v. State & Ors., 2022 (1) MLJ (Crl.) 249; Sh. Shantanu Bhowmik v. State of Tripura, Crl. Pet. No. 02/2011, dated 03.05.2014 (Hon'ble High Court of Tripura); and Righthaven LLC v. Thomas A. Dibiase, Case No.:2:10-CV-01343-RLH- PAL, dated 22.06.2011 (United States District Court, District of Nevada).
4. Per contra, Ld. Addl. PP for the State submitted that the impugned order was passed by the Ld. Trial Court after due appreciation of the facts and circumstances of the present case and, as such, deserves no interference by this Court. It was further submitted that no irregularity, impropriety, or incorrectness can be attributed to the impugned order, as well as the framing of charges CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 11 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.01.29 16:02:15 +0530 against the revisionist, which was/were passed by the Ld. Trial Court, cognizant of the principles of law, as well as wary of the facts and circumstances brought forth. As per the Ld. Addl. PP for the State, the arguments contended by/on behalf of the revisionist are in the nature of revisionist's defence, which cannot be considered by the Court at the stage of framing of charge. Even otherwise, sufficiency of the material/evidence placed on record, is not a fact which can be considered at the stage of framing of charges.
5. The arguments of Ld. Counsel for the revisionist as well as that of Ld. Addl. PP for the State have been heard and the records, including the Ld. Trial Court records, written synopsis filed by/on behalf of the revisionist and the case laws, relied, thoroughly perused.
6. Before proceeding with the determination of the merits of the case/issues posed before this Court, it would be apposite to outrightly make a reference to the relevant provisions under law, in particular that under law, as under;
"3972. Calling for records to exercise of powers of revision - (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of 2 Pari materia with Section 438 BNSS, which provides; "438. Calling for records to exercise powers of revision-
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on his own bond or bail bond pending the examination of the record.*** (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding ..."
(Emphasis supplied).
CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 12 of 34
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2026.01.29
16:02:20 +0530
the record.
Explanation - All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of Section 398.
(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding..."
(Emphasis supplied)
7. Pertinently, from a perusal of the aforesaid, it is quite evident that the revisional jurisdiction of this Court can be agitated either suo motu or an application of parties, that too in a case(s) where there is a palpable error, non-compliance of the provision of law, decision of Trial Court being completely erroneous or where the judicial decision is exercised arbitrarily. In this regard, reliance is placed upon the decision of the Hon'ble Supreme Court in Amit Kumar v. Ramesh Chander, (2012) 9 SCC 460, wherein the Hon'ble Court while explicating the various contours of the provision under Section 397 Cr.P.C. (pari materia with Section 438 BNSS), observed as under:
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 13 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.01.29 16:02:24 +0530 have to be determined on its own merits.
13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC."
(Emphasis supplied)
8. Similarly, the Hon'ble High Court of Delhi in V.K. Verma v. CBI, 2022 SCC Online Del 1192, in a similar context noted as under;
"67. The revisional jurisdiction is not meant to test the waters of what might happen in the trial. The Revisional Court has to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of the court below. While doing so, the Revisional Court does not dwell at length upon the facts and evidence of the case, rather it considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence. In the instant case, the Petitioner has failed to make out a case for exercise of the revisional jurisdiction since there is no patent error in the impugned order on the face of record."
(Emphasis supplied)
9. Quite evidently, it may be noted from above that the revisional jurisdiction of the higher court is quite limited and cannot be exercised in a routine manner. In fact, as aforenoted, the revisional Court can interfere only in the instances where an order of trial court was passed, unjustly and unfairly. Further, it is a CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 14 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.01.29 16:02:30 +0530 settled law3 that trite law that in a case where the order of subordinate Court does not suffer from any illegality, "merely because of equitable considerations, the revisional Court has no jurisdiction to re-consider the matter and pass a different order in a routine manner." Reference in this regard is made to the decision in Taron Mohan v. State, 2021 SCC Online Del 312, wherein the Hon'ble High Court of Delhi expounded as under;
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case . A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
(Emphasis supplied)
10. Notably in the context of the foregoing, it is further apposite to observe here that it is no longer res integra that the orders framing charges or refusing discharge are neither interlocutory nor final in nature, rather, intermediate in nature 4, and are, therefore, not affected by the bar of Section 397(2) Cr.P.C. However, the scope of interference under Section 397 Cr.P.C. at a stage, when charge had been framed, is also equally settled5. In this regard, it is pertinent to make a reference to the decision of the Hon'ble Apex Court in Manendra Prasad Tiwari v. Amit 3 Juned v. State of M.P., 2023 SCC OnLine MP 4458; and Dilip Damor v. State of M.P., 2024 SCC OnLine MP
958. 4 Sanjay Kumar Rai v. State of U.P., (2022) 15 SCC 720.
5State of Rajasthan v. Fatehkaran Mehdu, (2017) 3 SCC 198.
CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 15 of 34
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2026.01.29
16:02:35 +0530
Kumar Tiwari, 2022 SCC Online SC 1057, wherein the Hon'ble Court enunciated the law in regard the foregoing as under;
"22. The scope of interference and exercise of jurisdiction under Section 397 of CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage the final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of Code of Criminal Procedure.
23. Section 397 CrPC vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding."
(Emphasis supplied)
11. Germane for the purpose(s) of present discourse to now consider the principles governing framing of charges. In this regard, it is relevant to outrightly note the settled law 6 that at the stage of framing of charges, neither can the truth, veracity and effect of the prosecution case be meticulously7 judged, nor can any weight to be attached to the probable defence of the accused. On the contrary, at such a stage, only the sufficiency of ground for proceeding against the accused, on a general consideration of materials placed before the Court by the investigating police officer is relevant. Further, though, sifting of evidence is 6 State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 7 Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460.
CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 16 of 34
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2026.01.29
16:02:40 +0530
permissible8, however, scanning of evidence in detail is not. Quite understandably, the Hon'ble High Court of Delhi in Reena v. State (NCT of Delhi), 2020 SCC Online Del 630, iterated the said principles in unequivocal terms as under;
"12. Thus it is settled position of law that at the time of framing of charge, the Court is not supposed to look into the evidence of the case in detail and is only to consider whether there is a strong suspicion against the accused on the basis of the material that comes before it. The court has the power to sift the evidence for the limited purpose of finding out, whether or not a prima facie case is made out against the accused. However, the Court is not supposed to delve deeply into the merits of the matter and start a roving expedition into the evidence that is brought forth it, as if conducting a trial. Further there is no one fixed definition that may be ascribed to the term prima facie' nor can the term strong suspicion have a singular meaning. While coming to the conclusion of a strong prima facie case or strong suspicion, the Court shall have to decide each case on the basis of its own independent facts and circumstances."
(Emphasis supplied)
12. Concomitantly, it is settled law9 that the inconsistency in the material produced by the prosecution or the defect in investigation10, cannot be looked into for discharge of an accused, in the absence of full-fledged trial. In fact, the probative value11 of the material on record cannot be gone into, and the material placed on record by the prosecution has to be accepted as true at that stage. Reference in this regard is made to the decision of the Hon'ble Supreme Court in State through Deputy Superintendent of Police v. R. Soundirarasu and Ors., MANU/SC/1103/2022, wherein the Hon'ble Court remarked as under;
8State of Maharashta v. Priya Sharan Maharaj & Ors., (1997) 4 SCC 393.
9Sheoraj Singh Ahlawat v. State of U.P., (2013) 11 SCC 476.
10State of Tamil Nadu by Inspector of Police v. N. Suresh Ranjan & Ors., (2014) 11 SCC 709.
11Soma Chakravarty v. State, (2007) 5 SCC 403.
CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 17 of 34
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2026.01.29
16:02:44 +0530
"58. Reiterating a similar view in Sheoraj Singh Ahlawat and Ors. v. State of Uttar Pradesh and Anr., MANU/SC/1011/2012: (2013) 11 SCC 476, it was observed by this Court that while framing charges the court is required to evaluate the materials and documents on record to decide whether the facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into the probative value of the materials on record. It needs to evaluate whether there is a ground for presuming that the Accused had committed the offence and it is not required to evaluate sufficiency of evidence to convict the Accused. It was held that the Court at this stage cannot speculate into the truthfulness or falsity of the allegations and contradictions & inconsistencies in the statement of witnesses cannot be looked into at the stage of discharge."
(Emphasis supplied)
13. Relevant to further note that it is trite law 12, at the stage of framing of charge, only the police report is required to be considered and the defence of the accused13 cannot be looked into. Needless to mention that the superior courts14 have persistently deprecated the practice of holding a mini trial at the time of framing of charge. Relevantly, in this regard, reference is made to the decision of the Hon'ble Supreme Court in Bharat Parikh v. CBI, (2008) 10 SCC 109, wherein the Hon'ble Court enunciated the judicial principle(s), as under;
"19. As observed in Debendra Nath Padhi case [(2005) 1 SCC 568: 2005 SCC (Cri) 415] at the stage of framing charge roving and fishing inquiry is impermissible and a mini trial cannot be conducted at such stage. At the stage of framing of charge the submissions on behalf of the accused have to be confined to the material produced by the investigating agency. The accused will get an opportunity to prove the documents subsequently produced by the prosecution on the order of the Court, but the same 12 State Anti-Corruption Bureau, Hyderabad & Anr. v. P. Suryaprakasam, (1999) SCC (Crl.) 373 and State of Orissa v. Debendra Nath Padhi, 2005 (1) SCC 568.13
State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294.14
Indu Jain v. State of M.P., (2008) 15 SCC 341.
CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 18 of 34
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2026.01.29
16:02:48 +0530
cannot be relied upon to reopen the proceedings once charge has been framed or for invocation of the High Court's powers under Section 482 of the Code of Criminal Procedure."
(Emphasis supplied)
14. Apposite to further emphasize15 that at the stage of charge, court(s) is/are not even required to record detailed reasons for framing charge, rather16, a very strong suspicion founded upon materials placed before it, which leads the court to form a presumptive opinion as to the existence of factual ingredients constituting the offence alleged, may justify the framing of charges. In fact17, it is only when no case is made out even after presuming entire prosecution evidence, can an accused be discharged. Needless to accentuate18, "at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial." Notably, the Hon'ble Supreme Court in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715, while inter alia illuminating the principles as well as the scope of enquiry for the purpose of charge/discharging an accused, observed as under;
"14. ...In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The "ground" in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, 15 Bhawna Bai v. Dhanshyam & Ors., (2020) 2 SCC 217 16 Supdt. and Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhunja, AIR 1980 SC 52 and Sajjan Kumar v. CBI, (2010) 9 SCC 368 17 Manjit Singh Virdi v. Hussain Mohammed Shattaf, (2023) 7 SCC 633 18 Sonu Gupta Vs. Deepak Gupta & Ors., (2015) 3 SCC 424 CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 19 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.01.29 16:02:53 +0530 therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into."
(Emphasis supplied)
15. Ergo, being mindful of the principles hereinunder noted, this Court would now proceed with the determination of the arguments raised by Ld. Counsel for the revisionist as well as by Ld. Addl. PP for the State. Markedly, one of the primary contentions of the Ld. Counsel for the revisionist is that the Ld. Trial Court could not have proceeded with the passing of impugned order/framing of charges against the revisionist, considering that the provisions under Section 115(4) of the Trademarks Act were not complied with especially the search/seizure proceedings were conducted without obtaining the prior opinion of the Registrar in the instant case and that too by an officer, not competent to conduct such proceedings. Appositely, in order to deal with the said contention, this Court deems it pertinent here to reproduce the relevant provisions/extracts of provisions under law/Section 115 of Trademarks Act, as under;
"115. Cognizance of certain offences and the powers of police officer for search and seizure-*** (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:
CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 20 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.01.29 16:02:58 +0530 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..."
(Emphasis supplied)
16. Notably, it is seen from the above, in particular, from a conscientious perusal of the provisions under Section 115(4) of the Trademarks Act that in so far as the offences under Section 103, Section 104 an Section 105 of the said enactment are concerned, no police officer below the rank of Deputy Superintendent of Police or equivalent, search and seize without warrant the goods, die, block, machine, plate, other instruments or things involved in committing the offence. Congruently, proviso to the said provision envisages that prior to any such police officer, 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...". Quite lucidly, it is seen that the said provision confer power on such police officer to search and seize without warrant and on obtaining an opinion of Registrar, on facts involved in the offence relating to trade mark and shall abide by the opinion so obtained. However, the law is trite that when search warrant is issued by the court, in exercise of the power under Section 93 Cr.P.C., same can be executed without the requirement stipulated in the proviso to Section 115(4) of the Trademarks Act. Reference in this regard is made to the decision of the Hon'ble High Court of Delhi in Sanyo Electric Co. Thr. Its Constituted Attorney Pankaj Gupta v. State, 2010 SCC Online Del 2931, wherein the Hon'ble Court, whilst being confronted with an akin situation, explicated the law in the following terms;
"6. Section 115(4) of the TM Act states that a CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 21 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.01.29 16:03:03 +0530 police officer not below the rank of Deputy Superintendent or equivalent can conduct search and seizure operations without warrant in respect of offences under the TM Act. This empowerment or power is similar and analogous to the general power of search and seizure of a police officer under Sections 102, 165 and 166 of the Code. However, to protect the right to privacy and to ensure that the power of search and seizure is not misused and abused, proviso to Section 115(4) of the TM Act stipulates and requires that the police officer should take opinion of the Registrar of the Trade Marks on facts involved in the offence of trade mark and the police officer shall abide by that opinion. In other words, opinion of the Registrar is binding on the police officer. Right to privacy being a constitutional right, guaranteed to the citizens of India, cannot be infringed except for valid, good and justified reasons. Right to search is an exception to right to privacy, honour and reputation and can be denied when an important counter veiling interest is shown to be superior (See, District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496). The provisions of Section 115(4) of the TM Act including the proviso will override the general provisions of the Code under Sections 102, 165 and 166, which relate to general power of search and seizure by the police.
7. Section 115(4) of the TM Act relates to search and seizure by the police without warrant. Section 93 of the Code, on the other hand, deals with power of the Court to authorize search and seizure. The Court can issue a search warrant when conditions mentioned in Section 93 of the Code are satisfied. Search authorized under Section 93 of the Court is not a search without a warrant but a search under a warrant issued by the Court after due application of mind. The words "reason to believe" coupled with clauses (a) to (c) contemplate an objective determination based on judicial deliberation by the Court. The court applies its mind to decide whether or not a request for search and seizure made by a party should be allowed. An order under Section 93 of the Code is a judicial order passed after weighing and examining facts. There should be application of mind which should be discernible from the order under section 93 of the Code, (see V.S. Kuttan Pillai v. Raina Kishan, (1980) 1 SCC 264). Thus, the power of the police to conduct searches and searches on a warrant issued by a Court under Section 93 of the Code are distinct and separate. It is expected and required that the court would take due CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 22 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.01.29 16:03:08 +0530 notice and will ensure that the right to privacy is not violated except when warranted, required and justified.
*** *** ***
11. Looking at the language of Section 115(4) of the TM Act, object and purpose behind the proviso to the said Section and Section 93 of the Code, the proviso in the present case does not warrant a wider application beyond the substantive Section 115(4) i.e. all searches by the police without warrant.
Legislative intent behind the proviso can be gathered from the explicit language and words used in 115(4) of the TM Act. The Section is confined to searches without warrants and prevents misuse of the power of search by the police. There is no indication in the language that the proviso is intended to apply as a proviso to Section 93 of the Code.
12. Section 115(4) of the TM Act does not override and obliterate the power of the court to issue a search warrant under Section 93 of the Code. Learned ACMM has in fact exercised the power under Section 93 of the Code and entertained the application. In other words, learned ACMM has held that an application under Section 93 of the Code would be maintainable and the court can issue a search warrant in spite of the power given to the police under Section 115(4) of the TM Act to conduct search without warrant. It has been accordingly held, and in my opinion rightly, that the two provisions operate independently as one relates to searches pursuant to warrants issued by the courts and the other relates to searches by police officers without a Court warrant. The pre-requisite or pre-conditions for a search by a police officer without warrant under the proviso to Section 115(4) of the TM Act cannot be read into and made a pre-condition a search warrant issued by a court under Section 93 of the Code is executed. Otherwise, a judicial order of the court issuing warrant of search will be a paper order and unexecutable unless the Registrar gives a positive opinion. It makes a judicial order of a court ineffective till an opinion is given by the Registrar, who has right to overwrite the judicial decision. This is not warranted by the language of the proviso or the legislative intent behind the proviso. The object and purpose is to control searches without warrants by the police and not impose a post decision precondition warrants issued by the court are executed. If the proviso is to apply to Section 93 of the Code, the language would have been different and more specific. There can be cases where CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 23 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.01.29 16:03:12 +0530 immediate searches are required under the TM Act. Searches under Section 115(4) of the TM Act may be counterproductive or self defeating in case the time consuming process in view of the proviso to section 115(4) of the TM Act is followed. In such cases, searches under Section 93 of the Code after a judicial order may be more appropriate and necessary. The legislative intent behind empowering a police officer to conduct a search only pursuant to an opinion of the Registrar under Section 115(4) is clearly to protect the right to privacy and to ensure that the power of search and seizure under Section 115(4) is not misused/abused. A judicial order serves the same purpose and protects against misuse of the power of search.
13. In view of the aforesaid reasoning, it is held that a search warrant issued by the court under Section 93 of the Code can be executed without the requirement stipulated in the proviso to Section 115(4) of the TM Act. The said proviso will apply to searches made by police officers without warrant issued by the court i.e., all searches under Section 115(4) of the TM Act including Sections 102, 165 and 166 of the Code, except searches on a warrant issued by a court under Section 93 of the Code.
14. The above interpretation does not mean that the court, before issuing a warrant under Section 93 of the Code, cannot seek opinion of the Registrar. In a given case, the court may seek opinion of the Registrar of Trade Marks before it decides whether or not to issue a warrant under Section 93 of the Code.
This will depend upon factual matrix of each case. There may be straight forward cases of counterfeiting, where opinion is not necessary; but there may be other cases where the Court may feel the necessity to have an opinion or clarification of the Registrar a search warrant is issued. Courts have to keep in mind Section 110 of the TM Act and the defences to the proceedings under Sections 102, 103, 104 and 105 of the TM Act. Opinion of the Registrar of Trade Marks has to be given due weightage and consideration but will not be binding on the court. For good and valid reasons, a court can still issue a warrant in spite of a negative opinion of the Registrar of Trade Marks. Powers and an order of the Appellate Board are different from an opinion of the Registrar of Trade Mark. The court will also have to keep in mind the provisions of Section 113 of the TM Act, if a request for a search warrant is against a registered owner of a trade mark. The court can also impose conditions to protect interest of the person to be searched or CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 24 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.01.29 16:03:17 +0530 stipulate that the search would not be undertaken if the person to be searched produces material to show and establish that he is the registered owner of the mark."
(Emphasis supplied)
17. Correspondingly, the Hon'ble High Court of Karnataka in Manjunatha M.S. v. State, 2024 SCC Online Kar 73, reiterated that the non-compliance of the provisions under Section 115(4) of the Trademarks Act is a mere irregularity, so as to not vitiate a trial on this sole ground. Apposite to reproduce here, the relevant extracts of the said dictate, as under;
"11. ANSWER TO POINT NO. 2: Is the non- compliance of the requirement to the proviso to sub- section (4) to Section 115 an irregularity or does it go to the root of the investigation requiring this Court to intercede by exercising powers under Section 482 of the Cr. P.C.?
*** *** *** 11.12. Though the seizure has occurred without obtaining an opinion from the Registrar of Trademarks since, the complaint itself was registered under section 63 of the Copyright Act, I am of the considered opinion that it was not mandatory for the concerned Police officer at that stage to comply with the proviso to Subsection (4) of Section 115 of the T.M. Act. It is only during the course of investigation when the items were seized that it came to light that offences under Sections 103, 104 and 105 of the T.M. Act had been complied with. By that time the raid being in progress, search and seizure being effected could not be stopped and opinion from the Registrar of Trademark sought for to comply the requirement of proviso to Subsection (4) of Section 115 of the T.M. Act. Thus, I am also of the opinion that the non-obtainment of the opinion from the Registrar of Trademarks is only an irregularity which does not go to the root of the investigation but, shall however, be subject to the accused establishing during the course of trial that such irregularity has occasioned failure of justice and in such an event, the trial court would be well within its power to dismiss the complaint.
11.13. In the present case, the accused petitioner has sought to contend that the complaint was wrongly registered under Section 63 of the Copyright Act, 1957 in order to fulfil the requirement of proviso to CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 25 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.01.29 16:03:21 +0530 Subsection (4) of Section 115 of the T.M. Act. This allegation is also one which is a matter of trial. If the petitioner-accused were to establish the said fact, then again the complaint would be liable to be dismissed. At this stage, I am not able to come to a conclusion that a complaint was wrongly registered under Section 63 of the Copyright Act, 1957 to get over the requirement of proviso Subsection (4) of Section 115 of T.M. Act.
11.14. Hence, I answer point No. 2 by holding that non-compliance of the requirement of the proviso to Subsection (4) of section 115 of T.M. Act is an irregularity which would not require this Court to exercise its powers under Section 482 of the Cr. P.C. The trial can go on. In the event of the accused being able to establish during trial that due to such irregularity, there is a failure of justice, then in that event, the trial court could dismiss the complaint on that ground..."
(Emphasis supplied)
18. As aforenoted, even in the instant case, the search and seizure proceedings were conducted pursuant to the aforenoted order dated 22.12.2015, passed Ld. ACMM-02, Central, Tis Hazari Court on the complainant's application under Section 93 Cr.P.C. as well as in furtherance to the warrants, issued by the Ld. ACMM, so as to obviate the compliance of Section 115(4) of the Trademarks Act in the instant case, besides the complaint in the instant case was also registered under Section 63 of the Copyright Act. Ergo, in light of the foregoing, this Court reiterates that it finds itself difficult to concede that the proceedings are vitiated in the instant case for non-compliance of the provisions under Section 115(4) of the Trademarks Act. Even otherwise, it has not been brought to the notice of this Court that whether any proceedings challenging the order dated 22.12.2015 of the Ld. ACMM-02, Central, Tis Hazari Court was preferred by the revisionist in the instant case.
CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 26 of 34
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.01.29
16:03:26 +0530
19. Notwithstanding the foregoing, proceeding with the determination of the facts and circumstances brought forth, this Court would proceed to determine that from the material brought forth, prima facie ingredients of offence under Section 63 of the Copyright Act is made out against the revisionist herein. However, in order to proceed with such determination, this Court deems it pertinent to reproduce the relevant provisions under law/Copyright Act, as under;
"51. When copyright infringed-Copyright in a work shall be deemed to be infringed- (a) when any person, without a licence granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
(ii) permits for profit, any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or
(b) when any person--
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports into India, any infringing copies of the work:*** *** *** ***
63. Offence of infringement of copyright or other rights conferred by this Act-Any person who knowingly infringes or abets the infringement of- (a) the copyright in a work, or
(b) any other right conferred by this Act except the right conferred by Section 53-A, CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 27 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.01.29 16:03:32 +0530 shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:
Provided that where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees. Explanation-Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section."
(Emphasis supplied)
20. Remarkably, it is seen from a conjoint reading of the aforesaid provisions that Section 63 of the Copyright Act inter alia provides for culpability against any person who knowingly infringes or abets the infringement of a copyright in a work or of other right conferred by this Act except the right conferred by Section 53A thereof. Section 51 of the said enactment, in turn, defines infringement inter alia as violation of any exclusive right of a copyright holder by any person, without a license granted by the owner of such copyright or the Registrar of Copyrights under the said enactment or that of contravention of the conditions of a license so granted or of any condition imposed by a competent authority under this Act. Clearly, in order for an offence of infringement to be prima facie made out, it must be demonstrated from records that the complainant is the owner of the copyright or an assignee of such right. However, in the instant case, from a punctilious scrutiny of the records it is seen that neither the complainant nor the Company/Mobis are prima facie is/are either the owner(s) of the copyright or the assignee(s) thereof. Needless to mention that there is no deed of assignment of copyright logo in CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 28 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.01.29 16:03:37 +0530 favour of Mobis/company/complainant so as to rule out even a prima facie case or reasonable ground or even a strong suspicion to proceed against the revision for the offence under the said provision/Section 63 of the Copyright Act.
21. However, in as much as the offences under Section 103/104 of the Trademarks Act are concerned, in the considered opinion of this Court, there is a prima facie case, strong suspicion and sufficient material/ground(s) to proceed with the said charges/charges under Sections 103/104 IPC against the revisionist herein. Here, this Court deems it pertinent to reproduce the relevant extracts of the provisions under the Trademarks Act, germane for the present discourse, as under;
"102. Falsifying and falsely applying trade marks-(1) A person shall be deemed to falsify a trade mark who, either,- (a) without the assent of the proprietor of the trade mark makes that trade mark or a deceptively similar mark; or
(b) falsifies any genuine trade mark, whether by alteration, addition, effacement or otherwise. (2) A person shall be deemed to falsely apply to goods or services a trade mark who, without the assent of the proprietor of the trade mark,- (a) applies such trade mark or a deceptively similar mark to goods or services or any package containing goods;
(b) uses any package bearing a mark which is identical with or deceptively similar to the trade mark of such proprietor, for the purpose of packing, filling or wrapping therein any goods other than the genuine goods of the proprietor of the trade mark. (3) Any trade mark falsified as mentioned in sub-
section (1) or falsely applied as mentioned in sub- section (2), is in this Act referred to as a false trade mark.
(4) In any prosecution for falsifying a trade mark or falsely applying a trade mark to goods or services, the burden of proving the assent of the proprietor shall lie on the accused.
103. Penalty for applying false trade marks, trade descriptions, etc.-Any person who- (a) falsifies any trade mark; or CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 29 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.01.29 16:03:42 +0530
(b) falsely applies to goods or services any trade mark; or
(c) makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying or of being used for falsifying, a trade mark; or
(d) applies any false trade description to goods or services; or
(e) applies to any goods to which an indication of the country or place in which they were made or produced or the name and address of the manufacturer or person for whom the goods are manufactured is required to be applied under Section 139, a false indication of such country, place, name or address; or
(f) tampers with, alters or effaces an indication of origin which has been applied to any goods to which it is required to be applied under Section 139; or
(g) causes any of the things above mentioned in this section to be done, shall, unless he proves that he acted, without intent to defraud, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.
104. Penalty for selling goods or providing services to which false trade mark or false trade description is applied-Any person who sells, lets for hire or exposes for sale, or hires or has in his possession for sale, goods or things, or provides or hires services, to which any false trade mark or false trade description is applied or which, being required under Section 139 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 person for whom the goods are manufactured or services provided, as the case may be, are without the indications so required, shall, unless he proves,-
(a) that, having taken all reasonable precautions against committing an offence against this section, CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 30 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.01.29 16:03:47 +0530 he had at the time of 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 or services; or
(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 services; or
(c) that otherwise he had acted innocently, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees..."
(Emphasis supplied)
22. Conspicuously, it is seen from above that Section 103 of the Trademarks Act, provides for penalty for applying false trademark, trade descriptions, etc. and Section 104 of the said enactment, provides for penalty for selling goods to which false trademark has been applied. Markedly, falsification and falsely applying trademarks is defined under Section 102 of the Trademarks Act, which inter alia includes making of that trademark or deceptively similar mark, without the assent of the proprietor of the trademark; or falsification of any genuine trademark, whether by alteration, addition, effacement or otherwise; or application of such trademark or a deceptively similar mark to goods or services or any package containing goods, etc. Ergo, with such understanding, when the facts and circumstances and material brought forth on record are assiduously explored, in light of the arguments addressed, in the considered opinion of this Court, there is a prima facie case, strong CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 31 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.01.29 16:03:51 +0530 suspicion and sufficient material/ground(s) to proceed with the charges under Section 103/104 of the Trademarks Act against the revisionist herein. In this regard, it is noted by this Court that 191 (one hundred and ninety one) pieces of oil seal of counterfeit logo of Mobis are asserted to have been recovered and seized from the shop of the revisionist. Pertinently, there is material on record in form of the records of the revisionist's ownership of the said shop, i.e., electricity bill and visiting card of the revisionist, statements of witnesses and other material, to demonstrate prima facie ownership of the shop by the revisionist from where the said articles/counterfeit articles, i.e., 191 (one hundred and ninety one) pieces of oil seal of counterfeit logo of Mobis, were seized in the instant case.
23. In as much as the contention of Ld. Counsel for the revisionist pertaining to revisionist's false implication in the present case or that of the complainant being not being competent to act as an expert in the present case or that of absence of independent witnesses at the time of alleged recovery or that of absence of any opinion from any independent technical expert to prime facie establish that the alleged recovery effected from Angad Rai was that of counterfeit articles of Mobis, are concerned, same, in the considered opinion of this Court, are all subject matters of trial, which can be determined only after evidence is adduced in the instant case. Congruently, this Court deems it apposite to reiterate that mere defect in investigation, as alleged by the revisionist, cannot be a ground for discharge in light of the aforenoted judicial dictates. Further, this Court is also not convinced with the contention of the Ld. Counsel for the revisionist that since the material placed on record is insufficient to convict the revisionist, he ought to be discharged. In fact, in this CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 32 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.01.29 16:03:56 +0530 regard, it is reiterated that at the stage of framing of charge, sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial, which is not the case here.
24. Consequently, in conspectus of above, further being wary of the aforenoted judicial principles, in light of the arguments addressed by the Ld. Counsel for the revisionist as well as that by Ld. Addl. PP for the State, this Court observes that from the facts and circumstances of the case, material and the documents placed on record of the Ld. Trial Court, including inter alia the contents of the chargesheet, statements of witnesses, including that of the complainant, seizure memos and other documents placed on record, no reasonable ground and/or strong/grave suspicion exists for prima facie proceeding with the framing of charges under Section 63 of the Copyright Act against the revisionist herein.
However, for the reasons aforenoted, in light of the material brought forth, in the considered opinion of this Court, there is prima facie case, strong suspicion and sufficient material/ground(s) to proceed with the charges under Section 103/104 of the Trademarks Act against the revisionist herein.
25. Accordingly, in light of the aforesaid discussion, this Court unwaveringly records and reiterates that the order dated 21.12.2019, passed by Ld. ACMM-01, Central, Tis Hazari Courts, Delhi in case bearing, 'State v. Angad Rai & Ors., Cr. No. 11436/2019', arising out of FIR No. 31/2016, PS. Kashmere Gate, is upheld in so far as it directs framing of charges under Section 103/104 of the Trademarks Act against the revisionist. However, the said order/impugned order is set aside in so far as it directs framing of charge(s) under Section 63 of the Copyright CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 33 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.01.29 16:04:01 +0530 Act against the revisionist. As a corollary, charges framed under Section 63 of the Copyright Act against the revisionist are set aside. However, this Court upholds the charges under Section 103/104 of the Trademarks Act against the revisionist. Apposite at this stage for this Court to further note that, though, it/this Court holds highest regard for the decisions relied upon by Ld. Counsel for the revisionist, however, the same would not, in the considered opinion of this Court, come to the aid/rescue of the case put forth by the revisionist in the manner as prayed for, as the facts and circumstances of the present case are clearly, distinguishable.
26. Trial Court Record along with a copy of this order/judgment be sent to the Ld. Trial Court, with directions to proceed as per law.
27. Revision file be consigned to record room after due compliance. Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.01.29 16:04:08 +0530 Announced in the open Court (Abhishek Goyal) on 29.01.2026. ASJ-03, Central District, Tis Hazari Courts CR. No. 126/2024 Arvind Gauba v. State (NCT of Delhi) Page No. 34 of 34