ORDER
D.G. Deshpande, J:
1. Heard, Mr. Gupte for the petitioner and Mr. Desai
for the respondent No. 1.
2. Petitioner was the complainant before the Metropolitan Magistrate, 28th Court, Esplanade. Mumbai in a complaint filed under section 78 and 79 of Trade and Merchandise Marks Act, 1958 and under section 420 and 486 of the Indian Penal Code against some unknown persons. In that complaint, concerned Magistrate passed an order on 6-2-1998 forwarding the complaint to Senior P.I. Crime Branch Control, Mumbai, for investigation under section 202 of Cr.P.C. and for submitting his report. While making the investigation, the Crime Branch, carried out search of the premises of the respondent No. 1 and seized the property worth Rs. 20,00,000/-. An application came to be filed thereafter by one Raju Padwal for return of the property and the Metropolitan Magistrate allowed that application ordering the said applicant to execute a bond of Rs. 5,00,000/- and furnish an Indemnity Bond of Rs. 15,00,000/- and after which he was permitted to sell the property. This order is under challenge in this petition.
3. The dispute between the petitioner and the respondent No. 1 is in respect of a trade mark “LAIKA”. According to the complainant they were exclusive owners of the trade mark “LAIKA” but the unknown persons were manufacturing same garments under the name “LITTLE LAIKA” and therefore they were committing offences under sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 whereas according to the respondent No. 1 accused they were using the name “LITTLE LAIKA” for their garments to the knowledge of the complainant petitioner, but the complainant has by suppressing vital and important facts from the Magistrate and by filing a complaint in the name of an unknown person manoeuvered to get the search of the premises of the accused and effect seizure of property worth Rs. 20,00,000/-.
4. The question involved in this petition is a narrow question regarding the powers of the Magistrate under section 202 of the Cr.P.C. and the powers of the police doing investigation as per the Magistrate’s order under the said section. Mr. Gupte contended that the police officers to whom the investigation is entrusted by the Magistrate under section 202 of the Cr.P.C. get all the powers of investigation under section 156(3) of Cr. P.C. and since these power include the power of search and seizure, no illegality was committed by the police in seizing the property from the accused but the Magistrate wrongly interpreting section 202 and 156(3) held the seizure to be illegal and therefore the consequent order of return of the property to the accused on their bond is illegal and erroneous.
5. On the other hand Mr. Desai contended that this argument of the complainant petitioner was devoid of any substance. Firstly, because in a civil suit filed by the complainant and against the accused an order of injunction was passed by the single Judge of this Court. The accused preferred an appeal wherein by consent that order was set aside i.e. injunction was vacated and the Single Judge directed to decide and dispose of the Notice of Motion, pending which the accused were only directed to maintain and submit accounts in respect of the sale of their product every quarter. Mr. Desai therefore contended that in view of this order which came to be passed by consent, the petitioner cannot contend nor claim any right to get back the seized property. Secondly. Mr. Desai contended that in the instant case the Magistrate had taken cognizance of the offence after recording verification statement of the complainant and as such police did not have any powers under section 156 to effect search and seizure. He relied upon a judgement of the Supreme Court Ram and others v. Kishore Singh, in this regard. Mr. Desai also contended that asking the accused to furnish a bond of Rs. 5,00,000/- and indemnity bond of Rs. 15,00,000/- when the claim of the complainant in the civil suit was only Rs. 10,00,000/- was improper on the part of the Magistrate.
6. I pointed out to Mr. Gupte that in view of the civil suit filed by the complainant and the order of the Appellate Court which was passed by consent, the question regarding the entitlement to the seized property was pending before this Court in its civil jurisdiction and was going to be decided shortly and therefore the decision in Civil Court was bound to supersede the interim order passed by the Magistrate. Mr. Gupte fairly conceded to this position. However, he contended that it was necessary to decide the legal question raised by him so that no ambiguity is left regarding the powers of the police acting under section 202 of the Cr. P.C. As such I am considering that legal aspect only in the present order and the question that is formulated for consideration and decisions is:-
“Whether police have powers of search and seizure while carrying out investigation pursuant to the order of the Court under section 202 of the Cr. P.C.?”
7. Section 202 is included in Chapter XV under title “Complaints to Magistrates”. Section 202 requires the Magistrates to examine the complainant and his witnesses if they are present before he takes cognizance of an offence alleged in the said complaint. Section 202 lays down that Magistrate receiving complaint of offence of which he is authorised to take cognizance may …..either inquire into the case himself or direct an investigation to be made by a police officer. Proviso to this section limits the powers of the Magistrate as it lays down that no direction for investigation shall be made if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions and/or where the complaint has not been made by the Court, unless the complainant and the witnesses present have been examined on oath under section 200.
8. Since section 202 empowers the Magistrate to direct an investigation, it is necessary to go to Chapter XII which relates to information to the police and their powers to investigate”. Section 154 and 155 of this chapter are apparently not attracted in this instant case because section 154 deals with lodging of F.I.R. and section 155 deals with information regarding non-cognizable cases and investigation of such cases. However, Mr. Gupte has for the purpose of his argument referred to section 155(2). Section 156 relates to powers of the police officer to investigate cognizable cases and section 157 lays down procedure for investigation. So far as search and seizure is concerned police officers get their power by virtue of section 165 which provide that if a police officer making an investigation has reasonable grounds for believing that anything necessary for the purpose of an investigation into offences which he is authorised to investigate (stress added) may be found in any place he may search that place or cause the search to be made.
9. It will be clear from the aforesaid provisions that power to investigate includes power to carry out search and seizure. However, question is whether police get these powers while carrying out investigation under section 200 or not.
10. Mr. Gupte relied upon a judgment of the Supreme Court State of U.P. v. Ram Nath, Partner, M/s. Panna Lal Durga Prasad, Kanpur. This was a case under the Trade and Merchandise Marks Act, 1958. It is necessary to reproduce certain important facts of that case which are as under:
“M/s. Habib Bank Ltd. of Bombay was manufacturing and minting gold coins and piece of gold of various shapes and sizes. It was doing that for a number of years and it acquired quite a reputation. However, M/s. Panna Lal Durga Prasad of Kanpur were using deceptive similar trade marks and other marks of M/s. Habib Bank Ltd. Bombay and therefore in 1962 the Inspector of Trade Marks on behalf of the Director of Industries wrote a letter to the Additional Civil Magistrate (I) Kanpur about this illegal activity of M/s. Panna Lal Durga Prasad, with a request to take necessary action against the said firm in respect of offences under sections 78 and 79 of the Trade and Merchandise Marks Act, 1958. The Magistrate directed the police to register a case and investigate. Therefore, Sub Inspector of Police searched the factory of M/s. Panna Lal Durga Prasad and seized the gold coins, gold bars and dies. Subsequently report was made to the Magistrate who adopted procedure under section 25(A) and framed charges against the accused. Certain pleas were raised by the accused which were rejected by the Magistrate . A revision was filed before the Sessions Judge, Kanpur, who made reference to the High Court for quashing the charges, on the ground of principle of abandonment. The High Court accepted the reference and quashed the proceedings against the accused. In appeal the Supreme Court considered the provisions of sections 78 and 79 and also the provisions relating to the powers of police to investigate and search and seize. The Supreme Court observed that the offences under sections 78 and 79 were punishable upto two years or with fine or both and therefore they were non-cognizable and consequently police had to follow provisions of section 155 of the Cr. P.C. which gave them all power of investigation (except the power to arrest without warrant) which they may exercise in cognizance cases.”
11. Mr. Desai relied upon the judgment of the Supreme Court referred to above in Tula Ram’s case, in support of his contention that once the Magistrate takes cognizance and thereafter directs investigation, the police officer do not get any power to carry out search and seizure of the property. In that case, a case of murder was filed by the police against certain accused and the same was committed to the Court of Sessions. At the same time a cross complaint came to be filed before J.M.F.C., Firozpur, by the brother of the accused giving the counter version of the occurrence mentioned in the case registered by the police. The Magistrate on receipt of the complaint ordered the police to investigate the case under section 156(3) of the Cr. P.C. The police submitted his negative report in favour of the accused. Notices were issued to the complainant by the Magistrate, his statement was recorded and thereafter Magistrate issued process against the accused in the form of a non bailable warrant. The accused moved the High Court for quashing the proceedings on the ground that Magistrate having once ordered investigation under section 156(3) of the Code was not competent to revive the complaint and issue process. The High Court refused to entertain that objection on the ground that no case for quashing was made out in as much as Magistrate after taking due cognizance of the case had issued process against the accused. Therefore, the matter went to the Supreme Court where only a pure question of law was urged on behalf of the accused and the question was
“Whether the Magistrate having ordered investigation under section 156(3) of the Cr.P.C. was empowered to revive the complaint and order issue of process when the report of the police was in favour of the accused?”
12. It will be clear from the facts of the aforesaid case of Tula Ram and the question involved therein that what was before the Supreme Court was totally different question and no question raised by Mr. Gupte in the present case was agitated before the Supreme Court, therefore this case relied upon by Mr. Desai cannot be of any help to him. Consequently, the submissions made by Mr. Gupte are required to be considered with reference to the provisions of Cr. P.C. and the decision of Supreme Court in the case of State of U.P. v. Ram Nath, and considering therefore the fact that in the case at hand a complaint was made before the Magistrate for offences under sections 78 and 79 of the Trade and Merchandise Marks Act, 1958, and the Magistrate has ordered investigation under section 202 considering the fact that both these offences are non cognizable, police get power to investigate under section 155(3) in particular and in view of the decision of the Supreme Court the police get power to search and seize the articles and no restraints can be put on the powers of the police on the ground that they were acting under the orders of the Magistrate and had no independent powers of search and seizure.
13. Even if the argument of Mr. Desai is accepted in the instant case the Magistrate passed the order under section 202 after taking cognizance (i.e. after recording verification statement of the complainant) the situation will not change because in the case of State of U.P. v. Ram Nath, the Magistrate had taken cognizance of the offence and thereafter police had carried out investigation under section 155.
14. In view of these facts, reasonings given by the Magistrate in the impugned order that because the case was not referred to the police under section 156 they had no powers to carry out search and seizure and that the I.O. has exceeded his jurisdiction while seizing the property are required to be quashed
15. However, even if the observations and findings of the Magistrate are quashed, the ultimate order of handing over custody to the accused cannot be interfered with for two reasons, namely, complainant filing civil suit for damages which is still pending and secondly the accused seeking a consent order from the Court by which the notice of motion is to be heard and decided which will ultimately decide at to which of the complainant or accused are entitled to custody of the property in respect of which impugned order is passed. Mr. Desai had also contended that in view of the joint pursis filed by consent the order of the Magistrate is rendered null and void as it also covers the property released in favour of the complainant by the Magistrate. I would not prefer to interpret the order obtained by consent by both the parties from the Court particularly with reference to the allegations of the complainant before the Magistrate. The Magistrate’s order is limited and is in respect of the seized property and it does not decide the right of the parties to the said property. Therefore let those rights be decided by Civil Court.
16. Consequently, even if I uphold the contentions raised by Mr. Gupte, the petition is dismissed. Rule discharged. Stay if any vacated.
After the order was pronounced the Counsel for the petitioner applied for stay of operation of this order. Stay granted for six weeks on condition that if the petitioner files any appeal, they will give 48 hours previous notice in writing about the same to the respondents.
17. Petition dismissed.