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Safdar HussaIn and ors. Vs. S.K. Abdul Rahim - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Revn. Case Nos. 1893, 1894, 1895, 1896 and 1897 of 1964 (Crl. R.P. Nos. 1857, 1858, 1859, 1
Judge
Reported inAIR1967Mad4; 1967CriLJ84
ActsTrade and Merchandise Marks Act, 1958 - Sections 78; Indian Penal Code (IPC), 1860 - Sections 120-B and 420
AppellantSafdar HussaIn and ors.
RespondentS.K. Abdul Rahim
Cases ReferredPublic Prosecutor v. Ratnavelu Chetti
Excerpt:
- - purely on the ground that the police had no power to investigate into such a non-cognisable offence, and, hence, that the prosecution itself was bad in law. (5) this line of argument is clearly misconceived, and the authorities are very clear that, even in non-cognisable cases, nothing will prevent the police from competently filing a report, which should then be treated as a complaint under s. the order of the learned district magistrate(j) in revision is perfectly correct, and must be upheld......addl. first class magistrate, tiruchirapalli. with regard to these prosecutors under s. 78(c), the learned magistrate before whom they were pending discharged the accused(revision petitioners) under s. 251-a(2) crl. p. c. purely on the ground that the police had no power to investigate into such a non-cognisable offence, and, hence, that the prosecution itself was bad in law.(3) the matter came up in revision before the learned district magistrate(j) of tiruchirapalli, and the learned magistrate took the view that, even in respect of a non-cognisable offence, the police could properly file a charge sheet or report, which would then be treated as a complaint, and dealt with according to law; this was on the authority of public prosecutor v. munuswami naidu, 1942 mad wn cri 56. the learned.....
Judgment:
ORDER

(1) These are related criminal revision proceedings involving the same question of law. In all of them, the concerned revision petitioners were respective accused in prosecutions under S. 78(c) of the Trade and Merchandise Marks Act 43 of 1958. I may here state, purely for the purpose of setting forth the background of the facts, that S. 78(c) relates to the making, disposal or possession of any instrument for the purpose of falsification of a trade mark. The broad allegation was that, with respect to the Tajmahal trade mark beedies, the concerned revision petitioners were found in possession of counterfoil blocks and other articles which would bring them within the mischief of the offence defined in S. 78(c).

(2) It appears that, originally the police of Tiruchirapalli registered a case under SS. 420 and 120-B I. P. C. against the revision petitioners, and conducted investigation into that case. A charge sheet under those sections of the Penal Code was ultimately filed, and we are not now concerned with the subsequent facts of those prosecutions. During the course of that investigation, the police also found that the revision petitioners had committed an offence punishable under S. 78(c) of the Trade and Merchandise Marks Act. They made separate reports or complaints in respect of this non-cognisable offence, before the Addl. First Class Magistrate, Tiruchirapalli. With regard to these prosecutors under S. 78(c), the learned Magistrate before whom they were pending discharged the accused(revision petitioners) under S. 251-A(2) Crl. P. C. purely on the ground that the police had no power to investigate into such a non-cognisable offence, and, hence, that the prosecution itself was bad in law.

(3) The matter came up in revision before the learned District Magistrate(J) of Tiruchirapalli, and the learned Magistrate took the view that, even in respect of a non-cognisable offence, the police could properly file a charge sheet or report, which would then be treated as a complaint, and dealt with according to law; this was on the authority of Public Prosecutor v. Munuswami Naidu, 1942 Mad WN Cri 56. The learned District Magistrate(J) also pointed out that a defect or illegality in the investigation, even if it be conceded had no direct bearing on the competence of the trial, or the procedure at trial. He set aside the order of discharge, and remitted the prosecutions for disposal according to law.

(4) There is some reference, I find, in the order of the learned District Magistrate, to some earlier F. I. R. filed at Kumbakonam, in these same cases, under S. 486 I. P. C. It is very difficult to see what that has do with the matter now in controversy and it is unnecessary to refer to it further. The argument of learned counsel for revision petitioners can be put in this very simple form. The offence, punishable under Section 78(c) of the Special Act is, undoubtedly a non-cognisable offence. In respect of such an offence, there cannot be any charge-sheet by the police. The police themselves cannot investigate into such an offence, under Section 155(2) Crl. P. C. without the special order of a magistrate. Hence, the reports by the police in these cases, upon which the prosecution ensued, were themselves be initio void. Nor is this, according to learned counsel an irregularity curable under S. 537 Crl. P. C.

(5) This line of argument is clearly misconceived, and the authorities are very clear that, even in non-cognisable cases, nothing will prevent the police from competently filing a report, which should then be treated as a complaint under S. 200(aa) Crl. P. C. with the sole variation that no sworn statement need be recorded from the police officer lodging the complaint. A situation practically identical with the present situation was dealt with by the Supreme Court in Pravinchandra v. State of A.P. : 1965CriLJ250 . That was also a case in which a police officer was investigating an offence under S. 420 I.P.C. which was cognisable. While doing so, on the same facts, he investigated an offence under S. 7 of the Essential Commodities Act, which was non-cognisable. Actually, he filed a single charge-sheet in that case, including both the offences. The Supreme Court referred to the three claused of S. 190(1) Crl. P.C. and held that both the offences could be investigated, and that the charge-sheet was also competent. The Full Bench decision of this court in Public Prosecutor v. Ratnavelu Chetti, ILR 49 Mad 525: AIR 1926 Mad 865 is authority for the view that under S. 190 Crl. P.C. magistrates could take cognisance of even non-cognisable offences upon report made in writing by a police officer, without examining the officer on oath. In other words, such a report would be treated as a complaint, but the provisions of S. 200(aa) Crl. P.C. would obviate the necessity for examining the police officer on oath.

(6) As regards the bar of S. 155(2) Crl. P.C. the Supreme Court decision cited by me is authority for the view that where, on the same set of facts, both a cognisable and a non-cognisable offence would appear to be involved, the police investigating the cognisable offence can also investigate the non-cognisable offence, and take action thereon. The order of the learned District Magistrate(J) in revision is perfectly correct, and must be upheld. It follows that these revision proceedings must be dismissed, and that the revision petitioners must take their trials upon the merits of the case against them under S. 78(c) of the Trade and Merchandise Marks Act, concerning which, of course I am expressing no view whatever. The court seized of the cases will now follow the procedure applicable to warrant cases, in respect of these charges. The revision proceedings are accordingly dismissed.

(7) Revision Dismissed.


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