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Sevantilal S. Shah Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Revn. Appln. No. 403 of 1965
Judge
Reported inAIR1969Guj14; 1969CriLJ63; (1968)GLR925
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 4(1), 20, 155(2), 192, 200, 201, 202, 202(1), 203 and 204; Trade and Merchandise Marks Act, 1958 - Sections 78 and 79
AppellantSevantilal S. Shah
RespondentState of Gujarat
Appellant Advocate S.M. Shah and; J.C. Brahmbhatt, Advs.
Respondent Advocate G.T. Nanavaty, Asst. Govt. Pleader
DispositionPetition allowed
Cases ReferredMorarji Jivraj v. Bai Panchibai Narsi Sawal
Excerpt:
.....off those goods as of marks of complainant-company in market - offences of such nature requires police investigation - lower court failed to exercise jurisdiction in not directing police officer to investigate - in case after suitable investigation no person found who could be proceeded against then court justified in dismissing complaint - to dismiss complaint without any such report from police officer would amount to denying legal assistance to complainant - order of lower court dismissing complaint under section 203 liable to be set aside. - - his company has, thus, acquired an exclusive right to use the said trade marks in the realm of fountain pen industry and the same has become well known to the trade and the public on account of its extensive use. then comes section 202..........magistrates, would not come in the way of making or having an inquiry or investigation made by any police officer under section 202 of the criminal procedure code. so far even the learned magistrate does not appear to feel any difficulty, and the learned assistant government pleader has gone further in saying and very rightly so, that not only the offences are committed or being committed in ahmedabad, but that these are such offences which cannot be detected by ordinary laymen except with the assistance of the police investigation -- which the learned magistrate alone can get it done, the offences being not cognizable in character.5. thus the short point, that requires to be considered is as to whether a non-cognizable case of the kind referred to above, which does not disclose the name.....
Judgment:
ORDER

N.G. Shelat, J.

1. This application in revision arises out of an order passed on August 3, 1965 by Mr. D. C. Mehta, Chief City Magistrate, Ahmedabad, in Criminal Case No. 649 of 1965, whereby the complaint came to be dismissed under Section 203 of the Criminal Procedure Code.

2. The Gujarat Industries Private Ltd. Bombay having its registered office at Bombay-4, of which the complainant Mr. Sevantilal Shah happens to be the Secretary, has been manufacturing fountain pens and its components of different varieties such as 'Ashok', 'Service', 'Champion' etc, and of those, the most popular fountain pens in demand, are 'Champion' and 'Ashok'. The annual sale of the fountain pens extends over rupees thirty lakhs and out of the same, the sale of 'Champion-555' fountain pens covers a sum of rupees six lakhs or so. The prices of 'Champion' and 'Ashok' fountain pens are about Rs. 18/- and Rs. 7-50 to Rs. 9/- per dozen respectively. The complainant has then alleged that the trade mark on the fountain-pens manufactured by his company are 'Champion and 'Ashok' and the same are registered in the office of the Trade and Merchandise Mark Registery at Bombay under Trade Mark Nos. 157902 and 157905 respectively. His company has, thus, acquired an exclusive right to use the said Trade Marks in the realm of fountain pen industry and the same has become well known to the trade and the public on account of its extensive use. He has then referred to special marks indicated on those fountain pens manufactured by his Company.

2A. The case of the complainant then is that he has learnt from his agents that some traders whose names and addresses he is not able to know, have been counterfeiting, using and selling such and similar fountain pens and their components bearing the same Trade Marks 'Champion' and 'Ashok' in the City of Ahmedabad within the jurisdiction of the Court. Such fountain pens are being sold at extremely low price in the markets at Ahmedabad and elsewhere. He has also produced along with the complaint the fountain pens manufactured by them as also the fountain pens marked with counterfeit Trade Marks similar to those of his Company for the purpose of comparison etc. Thus, according to the complainant those persons have committed and continued to commit offences punishable under Sections 78(b) and 79 of the Trade & Merchandise Marks Act, 1958, hereafter to be referred to as 'the Act. Towards the end of the complaint, he has requested the learned Magistrate to directthe Inspector of Police, Crime Branch, Ahmedabad, to make inquiries and find out the persons dealing and manufacturing such counterfeit goods so as to be dealt with in accordance with law.

3. Since the learned Magistrate thought that the complaint was vague, he required the complainant to give the particulars of the place within the jurisdiction of his Court where the offences are being committed. The complainant thereupon gave a statement on July 1, 1965 to the effect that the counterfeit goods in question are being sold on the Gandhi Road, Relief Road etc. in the City of Ahmedabad. After hearing the learned Advocate for the applicant, the learned Magistrate found that since the complainant does not know the particulars about the accused persons as also the particulars about the date or dates or about the place or places of the commission of offences, no useful purpose would be served by making any inquiry in respect of the complaint and since in his view there were no sufficient reasons for proceeding in the matter, he dismissed the complaint under Section 203 of the Criminal Procedure Code. Feeling dissatisfied with that order, the complainant has come in revision before this Court.

4. Whenever any complaint is before the Court, what is necessary to know is as to whether the facts averred constitute an offence and see as to whether any such offence is committed within his jurisdiction. It would be further seen whether any action is required to be taken and if so against whom, if the persons are named therein. Now while it is true that the complaint does not disclose the name or names of persons who are said to have committed any of the offences under Section 78 and/or Section 79 of the Act, the averments made in the complaint along with enclosures filed therewith do prima facie show that the offences in respect of such fountain pens bearing the Trade Mark as referred to hereabove of the complainant-Company are being committed by some persons and again at different places in the City of Ahmedabad. As to the vagueness with regard to the place the offences are said to have taken place in the City of Ahmedabad, the complainant has in his additional statement referred to certain places such as Gandhi Road, Relief Road etc., where such fountain pens are being sold. But having regard to Section 20 of the Criminal Procedure Code, every City Magistrate can exercise jurisdiction in all cases within the City of Ahmedabad for which he is appointed and the mere fact that for the sake of administrative convenience, different areas in the city of Ahmedabad have been allotted to different City Magistrates, would not come in the way of making or having an inquiry or investigation made by any police officer under Section 202 of the Criminal Procedure Code. So far even the learned Magistrate does not appear to feel any difficulty, and the learned Assistant Government Pleader has gone further in saying and very rightly so, that not only the offences are committed or being committed in Ahmedabad, but that these are such offences which cannot be detected by ordinary laymen except with the assistance of the police investigation -- which the learned Magistrate alone can get it done, the offences being not cognizable in Character.

5. Thus the short point, that requires to be considered is as to whether a non-cognizable case of the kind referred to above, which does not disclose the name or names of the persons sought to be prosecuted is or is not required to be inquired or investigated into by the Court haying regard to the provisions contained in Section 202 of the Criminal Procedure Code. Now, the learned Magistrate has taken cognizance of a complaint in respect of offences under Sections 78 and 79 of the Trade & Merchandise Marks Act since they are undisputedly non-cognizable offences under Section 200 of the Criminal Procedure Code. The 'offence' as denned in Section 4(1)(o) means any act or omission made punishable by any law for the time being in force. It can be either a cognizable offence or a non-cognizable one, 'Non-cognizable offence means a case in which a police officer, within or without a presidency-town, may not arrest without warrant'. Now Section 155(2) forbids any police officer from investigating a non-cognizable case without the order of a Magistrate of the first or second class having power to try such case or commit the same for trial or of a Presidency Magistrate. Then Sub-section (3) says that any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. Thus, it is under the orders of a Magistrate that an investigation in respect of a non-cognizable case can be done by a police officer in the same manner as he would be entitled to do under Chapter XIV of the Criminal Procedure Code in relation to any cognizable case except no doubt that he would not have the power to arrest him without the warrant being issued by a Magistrate. In other words, once the order is made by the Magistrate, the investigation can be done by a police officer in the same manner as he would do in respect of any cognizable case under the provisions of the Code.

6. Section 200 of the Code entitles a Magistrate to take cognizance of an offence on complaint and it further provides for a procedure for him to follow in Chapter XVI of the Code. As required under Section 201, the complaint must be to a competent Magistrate to take cognizance of the case and in case it has been made to a Magistrate who is not competent to take cognizance of the case, he shall return the same for presentation to the proper Court with an endorsement to that effect. Then comes Section 202 which provides as under :--

'202. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint:* * * * *'

Then Section 203 of the Code entitles any such Magistrate to dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the witnesses and the result of the investigation or inquiry (if any) under Section 202, there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing. If, on the other hand, in his opinion, there is sufficient ground for proceeding, he would issue process as contemplated under Section 204 of the Criminal Procedure Code. Thus, the cumulative effect of sections 200 to 203 of the Criminal Procedure Code would be that the City Magistrate, as in the present case, was authorised to take cognizance of a complaint filed by the complainant in respect of the non-cognizable offences punishable under Sections 78 and 79 of the Act and before issuing process he would be justified if he thought proper to direct any police officer for making an inquiry or investigation and that would be for the purpose of ascertaining the truth or falsehood of the complaint.

7. What the learned Magistrate, however, felt was that no names of the persons who were sought to be proceeded against are disclosed in the complaint and therefore no useful purpose would be served by having any such inquiry made.

8. In that respect one has to turn to the definition of the term 'complaint' as given in Section 4(1)(h) of the Code meaning the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, hascommitted an offence, but it does not include the report of a police officer. The learned Magistrate seems to have lost sight of the definition of the term 'complaint'. The allegations made in the complaint do disclose about some person or persons having committed offences punishable under Sections 78 and 79 of the Act and they are made in the complaint before the Magistrate with a view to take action against those persons. Now those persons can be both known or unknown. They need not be named, if not known. The complainant has made it clear that it has not been possible for him to trace those people and since the offences were of a non-cognizable character, the police would not take cognizance thereof even if a complaint were lodged before the police. He has been that way to a considerable disadvantage in securing the assistance of the police for investigation of such crimes committed in the City of Ahmedabad. The alternative to the complainant was therefore to go to the Magistrate within whose jurisdiction such offences are said to have taken place and naturally since he was not able to get information about the persons committing the said offences, he bas requested the Court to direct the police officer to make an inquiry or investigation in respect of these offences and have those culprits so named and found out so as to enable the Magistrate to proceed against them. The Magistrate is entitled to direct any inquiry or investigation to be made and that again by a police officer for the purpose of ascertaining the truth or falsehood pf the complaint. Those words 'for the purpose of ascertaining the truth or falsehood of the complaint' have to be given a very wide meaning covering all aspects of the complaint and not merely the truthfulness or otherwise of the allegations in relation to an offence only. That purpose would include the ascertainment of a person committing the offence and that again the manner in which such a person or persons have been committing the offences, and after collecting such evidence as is permissible under the circumstances of the case by making a thorough investigation, he has to submit a report with regard to the truth or falsehood of the complaint so as to enable the Magistrate to consider as to whether he should pass orders under Section 203 of the Criminal Procedure Code and that way dismiss the same finding no sufficient ground for proceeding, or under Section 204 for proceeding against any such person found out during the course of the investigation made by a police officer or any other person entrusted with an inquiry or investigation as contemplated under Section 202 of the Criminal Procedure Code. If that were not the meaning to be given to those words occurring inSection 202(1), it would be difficult or rather even impossible for the Magistrate to ascertain the truth or falsehood about the commission of offence which may be of a very vital character for the simple reason that they happened to be non-cognizable offences. A citizen aggrieved by any such offences committed by some person or persons cannot be rendered helpless and it can never be the intention of the Legislature to render him so helpless and it is that way that the powers that the Magistrate possesses under Section 202 of the Criminal Procedure Code have to be exercised. The term 'investigation' has also been defined in Section 4(1)(e) of the Criminal Procedure Code as including all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. Under Section 202, the powers of a Magistrate have been to direct not only an inquiry to be made but also an investigation to be made by a police officer and it is that way only that the Magistrate would be able to gather the material after the case is investigated by the police in pursuance of the orders passed by him so as to enable him to consider the effect thereof and pass suitable orders either under Section 203 or under Section 204 of the Criminal Procedure Code, 9. It was, however, pointed out by Mr. Nanavaty, the learned Assistant Government Pleader, that while it is true that such non-cognizable cases can well be properly investigated by the police, and that the Court can send the case for inquiry or investigation to the police officer under Section 202 of the Criminal Procedure Code, but if he does not think it fit to do so, this Court should be reluctant to interfere with the order passed by the learned Magistrate. In support thereof, he referred to a decision in the case of Morarji Jivraj v. Bai Panchibai Narsi Sawal, ILR 59 Bom 171 = (AIR 1935 Bom 76). Apart from authority, as I said above, Section 202 makes it clear that the words 'may, if he thinks fit, for reasons to be recorded in writing,' do indicate that it would be within the discretion of the learned Magistrate as to whether he should proceed and send the case for an inquiry or investigation to a police officer or the like. The case relied upon by Mr. Nanavaty also says the same thing viz., that under Section 202 it is for the Magistrate himself in his discretion to determine whether to send it for investigation or not. It is equally true, as observed in that very case, that the complainant cannot claim as of right an investigation by the police in respect of any non-cognizable case. But while exercising that discretion, the learned Magistrate has to take into account the nature and character of the offences alleged to have been committed and referred to in the complaint and at the same time see as to whether without the assistance of police by suitable investigation such offences can at all become possible to be inquired into by the Magistrate himself and enable the complainant to bring the offenders to book. One of the offences alleged to have been committed is about some person or persons having been applying false trade description to goods and thereby passing off those goods as of the marks of the complainant-Company in the market Such a manufacture of goods and applying of false trade marks or trade descriptions obviously would be taking place in secret for, if that were being done in a manner which could be easily traced, the complainant would not have found any difficulty in tracing those persons manufacturing such fountain-pens or goods in respect of which the complaint is lodged. These are again the offences in the nature of continuing offences and the collection of evidence in relation thereto can well be had only if suitable investigation by police is made. In my view, therefore, these are such offences which obviously require to be referred to the police agency for making an inquiry or investigation, and not to exercise proper discretion in respect of such offences would be tantamount to negation of justice in finding the crimes and the persons committing the same. The learned Magistrate has, therefore, failed to exercise jurisdiction in not directing a police officer to investigate into the said offences as also the persons who have committed or been committing the same in the City of Ahmedabad. If after a suitable investigation made by the police officer, no such person who could be proceeded against can be found, it would be perfectly open to the learned Magistrate to dismiss the complaint, but to do so without having any such report from the police officer would be far too premature and would amount to denying the assistance to the complainant through Court in having any such investigation made in respect of the offences alleged in the complaint.

10. I, therefore, set aside the orderof the learned Magistrate dismissing thecomplaint under Section 203 of the Criminal Procedure Code and direct the caseto go back to the learned Magistrate whoshall direct the police officer in the Cityof Ahmedabad to inquire and investigateinto the offences alleged to have beencommitted under Sections 78 and 79 ofthe Trade & Merchandise Marks Act inthe City of Ahmedabad and after obtaining the report, proceed to dispose of thecase in accordance with law.


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