K.N. Mudaliyar, J.
1. This appeal is directed by the complainant Pichaimuthu Manager. Messrs. Champion Knitting Company, Tiruppur, against the order of acquittal of the respondent-accused. Winner Knitting Company, of an offence under Section 78 (b) of the Trade and Merchandise Marks Act (43 Central Act of 1958). The respondent was convicted by the Sub Divisional Magistrate. Erode, for an offence under Section 78 (b) of the said Act and sentenced to pay a fine of Rs. 200/-.
2. The learned Counsel for the appellant contended that when the Criminal Appeal No. 212/68 was heard by the Court of Session there was no notice to the appellant, particularly when he was the complainant, principally interested in the matter. His argument is that during the stage of the hearing of the appeal, he ought to have been given notice of the appeal before the Court of Session by the accused-respondent. Such a notice has been lacking in this case and, therefore, the appellant, offices of the public prosecutor, who appeared in the appeal as the opposite party (Sic).
3. The learned Counsel for the appellant relied on the rationale found in the authorities for the position advanced before this Court. The ruling in In re Venkatavarada Ayyangar v. Vengaiservai 1938 Mad WN 729 refers to the case of the conviction of the accused with an award of compensation to the complainant. On appeal the accused was acquitted without giving notice to the complainant. The result was. the fine was set aside with-out notice to the complainant. Burn. J. held that the procedure was grossly unfair to the complainant and the judgment cannot be supported and the omission to Hive notice is not an illegality but it is clearly a gross irregularity and contrary to all sense of fairness. In Emperor v. Chunilal Bhaewanii AIR 1942 Bom 205 Beaumont. C. J. and Sen, J. held that where a person, whether the complainant or some one else, has been awarded compensation under Section 545, Criminal Procedure Code he ought to be served with notice of an appeal or revision application which may result in the order of compensation being set aside. If he appears, it will be in the discretion of the court to hear his advocate or to decline to do so. But if he is served with notice, he can at any rate, see that his view is placed before the court by the advocate appearing for the Government.
4. The practice in this Court has always been to give notice to the injured victim or the complainant, who has been awarded compensation under Section 545. Criminal Procedure Code during the hearing of either an appeal or revision petition; and I have never known any departure from such a healthy and wholesome practice followed by this Court during the past three decades and more.
5. In re Umerkhed Municipality v. Harsukh Ramlal AIR 1953 Nag 305 Mudholkar. J. held that in an appeal under Section 417 Criminal Procedure Code, Section 422 requires the court to give notice to the State but does not require that notice should be given to the complainant in a case arising out of a complaint. Though it is proper and desirable, therefore, to give notice to a complainant in a complaint case, and more particularly where compensation or costs are given to a complainant, failure of the appellate court to give such notice does-not render an appellate order illegal or void. The learned Judge has undoubtedly indicated a preference for the propriety and desirability for the Appellate court giving notice to a complainant.
6. In Palaniswami Goundar v. Nataraja Goundar 1966 MLW 143 Sadasivam. J. held:
Section 422. Criminal Procedure Code does not contemplate any notice to the complainant in an appeal perferred by an accused person against his conviction and strictly speaking it would be perfectly legal to order notice only to the public prosecutor. But where an order for compensation has been made in favour of the complainant principles of natural justice require that notice should be given to the complainant. Under R. 208 of the Criminal Rules of Practice, notices in criminal cases shall be served on parties personally unless they are represented by pleaders in which case notice could be given to pleaders except in cases where notice for enhancement of sentence is given. In practice, one or two notices are taken to the complainant in cases where orders of compensation are made, and then the matter is placed before the Judge to consider sufficiency of notice. It is desirable that the appellate courts should see that the notices ordered to the complainant in such cases as the present only (where compensation was awarded to the complainant) are served or at least reasonable attempts are made to serve them before disposing of the appeals.
With great respect to my learned brother. I have no hesitation in reinforcing the desirability of the notices being ordered to the complainant by the Appellate Courts.
7. Mr. Varadaraian. the learned Counsel for the appellant has laid proper emphasis on another aspect of the matter-. Section 417 (3) of the Criminal Procedure Code vests a new right in the complainant to file an appeal from the order of acquittal subject to the High Court granting special leave. This qualified right in favour of the complainant although it might appear to be truncated lends a new aspect to the argument that all norms of fairness would require notice to be given to the complainant during the stage of the hearing of the appeal, although such a notice may not be mandatory in view of terms of Section 422. Criminal Procedure Code.
8. As against this position. Mr. M.V. Krishnan. the learned Counsel for the accused-respondent, placed strons reliance on the observation of Jaganmohan Reddy, J, in Veeranna v. Mastan Sab : AIR1960AP311 . The portion dealing with the relevant legal position in extracted below:
this is an appeal by the complainant under Section 417 (3), Criminal Procedure Code against the order of acquittal. The first point urged on behalf of the complainant's advocate is that having regard to the provisions of Section 417 (3) Criminal P. C. the complainant ought to have been given notice of the appeal of the accused and the omission to do so is not a proper exercise of jurisdiction by the Sessions Judge and his judgment of acquittal therefore, cannot stand.
This argument must be rejected summarily because under Section 422. Criminal Procedure Code on appeal being filed, the appellant as well as such officer or officers as the State may in that behalf appoint should be given notice of the date and hearing of the appeal. It is also enjoined that the grounds of appeal should be furnished. There is not a word in. that section which makes it necessary to give notice to the complainant. Once the complaint has ended in a conviction of the accused it is the State that comes into the picture and it if the State that has to be given notice to sustain the conviction.
It is true that if the complaint after due enquiry ends in an acquittal, the complainant has been given a right to appeal. But that does not justify the contention that in an appeal from a conviction the complainant has a right to be given notice. To admit that in all cases of complaints ending in convictions, the complainant should be given notice of the appeal would be to convert criminal proceedings into persecutions or to use the language of Bose J. in Kartikram v. Emperor AIR 1937 Nag 123.
It would be unfortunate to allow private passions and prejudices to creep into the conduct of Criminal Trial when it can be avoided.
In that very case this point was urged and rejected. Once under Section 422 Criminal Procedure Code notice has been given to the State, the complainant has no right of audience and he ought not to be permitted to serve his own private ends'.
With great respect to the learned Judge. I find myself in entire agreement with the correctness of the legal position adumbrated by the Learned Judge, keeping in view the strict and narrow terminology of Section 422 Criminal Procedure Code. But the learned Judge did not allow himself to be influenced by the test and standard of fairness requiring notice to the complainant as was commanded by Bum J., Beaumont C. J. and Sen, J. Mudholkar J. and Sadasivam. J.
9. The learned Counsel for the accused-respondent relied on the reasoning found in In Re Ranee Konar v. Pakkirivattachi AIR 1943 Mad 5653. But in my view this judgment is not wholly helpful to the argument of the learned Counsel. Mr. M. V. Krishnan. Horwill J. held that although it is not necessary under Section 422 to give notice to a complainant. even though the complainant was awarded compensation, it is a salutary practice to do so because the Crown might not choose to oppose the appeal.
10. After considering and weighing the rationale found in these decisions. I am of the view that failure to give notice to the complainant is certainly not an illegality and therefore the proceedings resulting in the acquittal of the accused-respondent cannot be construed as a nullity in law; but a sense of fairness Impels me to hold that a notice to the complainant is necessary and desirable for the reason that at least since 1956 the complainant has a right to pursue the matter by way of an appeal in terms of Section 417 (3) Criminal Procedure Code. Horwill, J. considered it a 'salutary practice' to give notice to a complainant because the Crown might not choose to oppose the appeal'. Horwill. J. appears to refer to some deplorable practice which is Certainly prejudicial to the interests of the complainants, when the learned Judge held that.
Some District Magistrates instruct the- public prosecutor or the Prosecuting Inspector not to appear in private cases on the ground that the Crown is not interested in the result of the appeals. Such ail attitude is to be deprecated. Although a private complainant can bring to the notice of a Magistrate the fact that an offence has been committed, the accused is convicted for infringing the law of the country and as it is the duty of the District Magistrate to see that the law is upheld he should not regard a crime as of no concern to him because the complaint has been preferred by a private party.
11. I express no opinion on the merits of either the conviction of the accused-respondent by the trial Magistrate or the acquittal of the accused-respondent by the Court of Session. The entire matter is remanded to the Court of Session for a full and fair hearing of the appeal after giving notice to the complainant-appellant Pichaimuthu. Manager. Champion Knitting Company. Tiruppur.
12. The Criminal Appeal No. 751 of 1969 is allowed.