Kabeer vs State Of Kerala on 7 December, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1953 of 2009()


1. KABEER, AGED 50, S/O.MOIDEEN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.S.SREEKUMAR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :07/12/2009

 O R D E R
                      P.S.GOPINATHAN,J.
                   -----------------------------------
                    Crl.R.P.No.1953 of 2009
                   ----------------------------------
          Dated this the 7th day of December, 2009

                               ORDER

The revision petitioner is the 1st accused in C.C.No.131 of

2006 on the file of the Chief Judicial Magistrate,Ernakulam. The

Sub Inspector of Police, Central Police Station, Ernakulam in

Crime No.734 of 2006 filed a report against the revision

petitioner and another alleging offence under Section 103 of the

Trade Marks Act, Section 63 of the Copy Right Act and 420 read

with Section 34 I.P.C. Seeking an order for discharge both

accused filed a petition Crl.M.P.No.217 of 2009. The ground

urged is that the search and the investigation were conducted by

an officer below the rank specified in Section 115(4) of the Trade

Marks Act and therefore the prosecution is vitiated. The learned

magistrate by order dated 5/5/2009 dismissed the petition. The

reasons stated is that offences under Section Copy Right Act and

420 read with Section 34 I.P.C. were also alleged to have been

committed. The learned magistrate did not consider as to

whether the allegation made by the accused is correct and if so

whether the revision petitioner shall be sent for trial for offence

under Section 103 of the Trade Marks Act. In the event the

Crl.R.P.No.1953 of 2009
2

investigation is by an officer not competent or authorized it is

not at all warranted to ask the revision petitioner to face for trial

for offence under Section 103 of the Trade Marks Act. The

learned magistrate ought to have considered that aspect. In the

above circumstance, I find that the matter has to be remitted

back to the trial court for considering the above aspect.

In the result, this revision petition is allowed. The order

impugned is set aside and the matter is remitted back to lower

court to consider whether the accused shall undergo trial for

offence under Section 103 of the Trade Marks Act or not and

then to proceed in accordance with law.

P.S.GOPINATHAN, JUDGE

skj.