PETITIONER:
VISHWA MITTER
Vs.
RESPONDENT:
O. P. PODDAR AND OTHERS
DATE OF JUDGMENT30/09/1983
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
SEN, AMARENDRA NATH (J)
CITATION:
1984 AIR 5 1984 SCR (1) 176
1983 SCC (4) 701
ACT:
Trade and Merchandise Marks Act, 1958-Offences under
ss. 78 and 79-Indian Penal Code-Offence under s. 420-Code of
Criminal Procedure, 1973-Sub-ss. (1) and (2) of s. 4 read
with s. 190-Court cannot decline to take cognizance of
complaint on the sole ground that complainant was not
competent to file the complaint.
HEADNOTE:
The appellant, in his capacity as a dealer of beedies
and as the constituted attorney of the firm manufacturing a
particular brand of beedies, filed a complaint alleging
commission of offences by the respondents under ss. 78 and
79 of the Trade and Merchandise Marks Act, 1958 and s. 420,
I.P.C. The Magistrate, after a preliminary inquiry, directed
issue of process to the respondents but the same was quashed
in revision by the High Court on a technical ground and the
Magistrate was directed to consider the question of issue of
process afresh. The Magistrate re-heard the matter and
dismissed the complaint on the ground that the appellant was
not competent to file the complaint against the respondents
as he was not the registered owner of the trade-mark in
question. The appellant approached this Court after the
revision petition filed by him was dismissed in limine by
the High Court.
Allowing the appeal,
HELD: Anyone can set the criminal law in motion by
filing a complaint of facts constituting an offence before a
Magistrate entitled to take cognizance under s. 190 of the
Code of Criminal Procedure, 1973 and unless any statutory
provision prescribes any special qualification or
eligibility criteria for putting the criminal law in motion,
no court can decline to take cognizance on the sole ground
that the complainant was not competent to file the
complaint. Section 190 of the Code clearly indicates that
the qualification of the complainant to file a complaint is
not relevant. [181 H; 182 A-B]
(b) Section 4, Cr. P.C. provides for trial of offences
under the Penal Code and other laws. Sub-s. (1) of s. 4
deals with offences under the Penal Code. Sub-s. (2) of s. 4
provides that all offences under any other law shall be
investigated, inquired into, tried and otherwise dealt with
according to the same provisions, but subject to any
enactment for the time being in force regulating the manner
or place of investigating, inquiring into, trying or
otherwise dealing with such offences. From a combined
reading of s. 4(2) with s. 190, it transpires that upon a
complaint being filed by a person, setting-out
177
facts therein which constitute the offence, before a
Magistrate specified in s. 190, the Magistrate will be
competent to take cognizance of the offence irrespective of
the qualifications or eligibility of the complainant to file
the complaint. [179 H; 180 A-B; H; 181 A]
(c) Section 89 of the Trade and Merchandise Marks Act,
1958 provides that no court shall take cognizance of an
offence under s. 81, 82 or 83 except on a complaint in
writing made by the Registrar or any officer authorised by
him in writing. This provision manifests the legislative
intention that in respect of the three specified offences
punishable under ss. 81, 82 and 83, the Registrar alone is
competent to file the complaint. This would show that in
respect of other offences under the Act the provision
contained in s. 190, Cr. P.C. read with sub-s. (2) of s. 4
thereof would permit anyone to file the complaint. The
indication to the contrary as envisaged by sub-s. (2) of s.
4 is to be found in s. 89 of the Act and that section does
not prescribe any particular eligibility criterion or
qualification for filing a complaint for contravention of
ss. 78 and 79 of the Act. [182 E-G]
(d) Even otherwise, in the absence of a specific
qualification, if the person complaining has a subsisting
interest in the protection of the registered trademark, his
complaint cannot be rejected on the ground that he had no
cause of action or sufficient subsisting interest to file
the complaint. In the instant case the appellant who was the
complainant was not only a dealer in the beedies
manufactured and sold by the registered owner of the trade-
mark but also its constituted attorney. [182 H; 183 A-B]
(e) Even with regard to offences under the Penal Code,
ordinarily, anyone can set the criminal law in motion but
the various provisions in Chapter XIV, Cr. P.C. prescribes
the qualification of the complainant which would enable him
or her to file a complaint in respect of specified offences
and no court can take cognizance of such offence unless the
complainant satisfies the eligibility criterion; but, in the
absence of any such specification no court can throw-out the
complaint or decline to take cognizance on the sole ground
that the complainant was not competent to file the
complaint.
[182 C-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
516 of 1983.
Appeal by Special leave from the Judgment and Order
dated the 4th November, 1980 of the Punjab and Haryana High
Court in Criminal Revision No. 652 of 1980.
V.M. Tarkunde, P.H. Parekh and Ms. Pinki Mishra for the
Appellant.
Harbans Lal and N.D. Garg for the Respondent.
The Judgment of the Court was delivered by
178
DESAI, J.: Appellant Shri Vishwa Mitter, a dealer in
beedies and cigarettes as also the constituted attorney of
M/s. Mangalore Ganesh Beedies Works, Mysore filed a
complaint in the Court of Sub Divisional Magistrate, Ist
Class, Pathankot on December 6, 1977 complaining of
commission of offences by the four respondents impleaded as
accused under Sections 78 and 79 of the Trade and
Merchandise Marks Act, 1958 (‘Act’ for short) and Sec. 420
IPC. It was alleged in the complaint that the principals of
the complainant M/s. Mangalore Ganesh Beedies Works, Mysore
are the registered owners of four trade marks in respect of
beedies manufactured by them. The name under which beedies
manufactured by the principals of the complainant are sold
in the market is ‘Mangalore Ganesh Beedies’ having a
registered trade mark in the wrapper being pink colour
wrapper containing the motif of Lord Ganesha and the numeral
‘501’. One additional registered trade mark used by the
manufacturers of the beedies is the ‘Ganesh Beedies’ wrapped
in a wrapper as mentioned above and bearing a multy-colour
seal label containing the numeral ‘501’ at its centre. The
owners of the registered trade mark came to know that
respondent No. 4-M/s Shri Ganesh Beedi Works, Chakradhapur,
Bihar were guilty of infringing the trade mark by using a
wrapper and seal label identical with or deceptively similar
to the registered trade mark and the principals of the
complainant filed a suit complaining of infringement and
passing off against the 4th respondent. There was a prayer
for perpetual injunction in the suit. The suit ended in a
decree in favour of the owners of the registered trade mark.
Somewhere in August 1977, the complainant who is a dealer in
the beedies manufactured by the owners of the registered
trade mark came to know that the 4th respondent was selling
beedies of inferior quality after wrapping them in a wrapper
and using the trade mark deceptively similar to that of the
registered trade mark. A complaint thereupon was filed which
led to the seizure of some goods. Subsequently, the
complainant came to know that the 4th respondent in league
with the 2nd and 3rd respondents were storing for sale and
selling beedies of inferior quality wrapped in deceptively
similar wrapper and were thereby infringing the registered
trade mark despite the injunction of the Court. It was
alleged that respondents Nos. 1 to 3 knowing of the
registered trade mark in favour of the principals of the
complainant were storing for sale and selling beedies of
inferior quality manufactured by the 4th respondent and
wrapped in wrappers falsifying the registered trade mark and
thereby it was alleged that respondents committed offences
under Sections 78 and 79 of the Act and Sec. 420 of the
I.P.C.
179
On this complaint being filed after a preliminary
enquiry, the learned Magistrate directed process to be
issued to the accused. The accused moved revision petition
in the High Court of Punjab and Haryana at Chandigarh with a
request to quash the proceedings. The learned Single Judge
of the High Court accepted the revision petition on the
narrow ground that the order issuing the process is not a
speaking order and directed the learned Magistrate to
consider the question of issuing process afresh. When the
matter came back to the learned Magistrate, he after hearing
the parties held that no case was made out for issuing the
process and proceeded to dismiss the complaint. The reasons
which impelled the learned Magistrate to reach the
aforementioned conclusion may better be extracted in his own
words:
“That complainant who has filed the present
complaint is not the Holder of the Trade Marks which is
said to have been impugned by the accused, in
collaboration with each other. He is only a sub-dealer
of M/s Mangalore Ganesh Beedies Works, Vinoba Road
Mysore, and there must be hundred and thousand dealers
of this firm, like him. It is only M/s Mangalore Ganesh
Beedies Works, who are holders of the Trade Mark and it
is only they who are competent to file the complaint
against the accused. The complainant has got no any
cause of action, because the trade mark which is
impugned by the accused does not belong to him, but
belongs to M/s Ganesh Beedies Works, Mysore, Karnataka
State. As no trade mark of the complainant has been
violated by the accused as he is only a sub-dealer and
not holding any trade mark. I find no reason absolutely
to issue the process and the complaint is hereby
dismissed.”
The complainant moved the High Court of Punjab and
Haryana in Revision Petition No. 652 of 1980, which was
dismissed in limine. Hence this appeal by special leave.
The reasons which appealed to the learned Magistrate to
come to the conclusion that the complaint filed by the
complainant cannot be entertained because he is not
registered owner of the trade mark is clearly erroneous
Sec. 4 of the Code of Criminal Procedure, 1973 provides
for trial of offences under the Indian Penal Code and other
laws. Sub-
180
Sec. (1) of Sec. 4 deals with offences under the Indian
Penal Code. Sub-sec. (2) of Sec. 4 provides that all
offences under any other law (other than offences under the
Indian Penal Code) shall be investigated, inquired into,
tried and otherwise dealt with according to the same
provisions, but subject to any enactment for the time being
in force regulating the manner or place of investigating,
inquiring into, trying or otherwise dealing with such
offences. Fasciculus of sections included in Chapter XIV of
the Criminal Procedure Code set out conditions requisite for
initiation of proceedings. Sec. 190 provides for cognizance
of offences by Magistrates which inter alia provides that
subject to the provisions of Chapter XIV, an Magistrate of
the first class, and any Magistrate of the second class
specially empowered in this behalf under sub-section (2),
may take cognizance of any offence-(a) upon receiving a
complaint of facts which constitute such offence;…Sec. 190
thus confers power on any Magistrate to take cognizance of
any offence upon receiving a complaint of facts which
constitute such offence. It does not speak of any particular
qualification for the complainant. Generally speaking,
anyone can put the criminal law in motion unless there is a
specific provision to the contrary. This is specifically
indicated by the provision of sub-sec. (2) of Sec. 4 which
provides that all offences under any other law-meaning
thereby law other than the Indian Penal Code-shall be
investigated, inquired into, tried, and otherwise dealt with
according to the provisions in the Code of Criminal
Procedure, but subject to any enactment for the time being
in force regulating the manner or place of investigating,
inquiring into, trying or otherwise dealing with such
offences. It would follow as a necessary corollary that
unless in any statute other than the Code of Criminal
Procedure which prescribes an offence and simultaneously
specifies the manner or place of investigating, inquiring
into, trying or otherwise dealing with such offences, the
provisions of the Code of Criminal Procedure shall apply in
respect of such offences and they shall be investigated,
inquired into, tried and otherwise dealt with according to
the provisions of the Code of Criminal Procedure. One such
provision in the Code of Criminal Procedure in Sec. 190
which empowers any Magistrate of the class specified therein
to take cognizance of any offence upon receiving a complaint
of facts which constitutes such offence. If after taking
cognizance of an offence it is permissible under Sec. 192,
such Magistrate may make over the case to other Magistrate
therein specified. Therefore, from a combined reading of
Sec. 4(2) with Sec. 190 of the Code of Criminal
181
Procedure, it transpires that upon a complaint filed by a
person setting-out facts therein which constitutes the
offence before a Magistrate specified in Sec. 190 the
Magistrate will be competent to take cognizance of the
offence irrespective of the qualifications or eligibility of
the complainant to file the complaint. It must, however, be
conceded that where a provision to the contrary is made in
any statute, which may indicate the qualification or
eligibility of a complainant to file the complaint, the
Magistrate before taking cognizance is entitled and has
power to inquire whether the complainant satisfies the
eligibility criteria. One illustration would indicate what
can be a provision to the contrary as contemplated by sub-
sec. (2) of Sec. 4 of the Code of Criminal Procedure. Sec.
195(1) provides that no Court shall take cognizance of any
offence set out therein except on the complaint in writing
of the public servant concerned or of some other public
servant to whom he is administratively subordinate.
Similarly sub-sec. (2) of Sec. 195 provides that no Court
shall take cognizance of any of the offences specified
therein except on the complaint in writing to that Court, or
to some other Court to which that Court is subordinate. Sec.
198 provides that no Court shall take cognizance of an
offence punishable under Chapter XX of the Indian Penal
Code, except upon a complaint made by some person aggrieved
by the offence. Sec. 199 provides that no Court shall take
cognizance of an offence punishable under Chapter XXI of the
Indian Penal Code, except upon a complaint made by some
person aggrieved by the offence. Sec. 20 of the Prevention
of Food Adulteration Act, 1954 provides that no prosecution
for an offence under the Act, not being an offence under
Section 14 or Section 14-A, shall be instituted except by,
or with the written consent of the Central Government or the
State Government or a person authorised in this behalf, by
general or special order, by the Central Government or the
State Government. Section 621 of the Companies Act, 1956
provides that no Court shall take cognizance of any offence
against the Act (other than an offence with respect to which
proceedings are instituted under section 545), which is
alleged to have been committed by any company or any officer
thereof, except on the complaint in writing of the
Registrar, or of a shareholder of the company, or of a
person authorised by the Central Government in that behalf.
It is not necessary to multiply the illustration.
It is thus crystal clear that anyone can set the
criminal law in motion by filing a complaint of facts
constituting an offence before
182
a Magistrate entitled to take cognizance under Sec. 190 and
unless any statutory provision prescribes any special
qualification or eligibility criteria for putting the
criminal law in motion, no Court can decline to take
cognizance on the sole ground that the complainant was not
competent to file the complaint. Sec. 190 of the Code of
Criminal Procedure clearly indicates that the qualification
of the complainant to file a complaint is not relevant. But
where any special statute prescribes offences and makes any
special provision for taking cognizance of such offences
under the statute, the complainant requesting the Magistrate
to take cognizance of the offence must satisfy the
eligibility criterion prescribed by the statute. Even with
regard to offences under the Indian Penal Code, ordinarily,
anyone can set the criminal law in motion but the various
provisions in Chapter XIV prescribe the qualification of the
complainant which would enable him or her to file a
complaint in respect of specified offences and no Court can
take cognizance of such offence unless the complainant
satisfies the eligibility criterion, but in the absence of
any such specification, no Court can throw-out the complaint
or decline to take the cognizance on the sole ground that
the complainant was not competent to file the complaint.
Section 89 of the Act provides that no Court shall take
cognizance of an offence under Section 81, Section 82 or
Section 83 except on a complaint in writing made by the
Registrar or any officer authorised by him in writing. This
provision manifests the legislative intention that in
respect of the three specified offences punishable under
Sections 81, 82 and 83, the Registrar alone is competent to
file the complaint. This would simultaneously show that in
respect of other offences under the Act, the provision
contained in Sec. 190 of the Code of Criminal Procedure read
with sub-sec. (2) of Sec. 4 would permit anyone to file the
complaint. The indication to the contrary as envisaged by
sub-sec. 2 of Sec. 4 of the Code of Criminal Procedure is to
be found in Sec. 89 and that section does not prescribe any
particular eligibility criterion or qualification for filing
a complaint for contravention of Sections 78 and 79 of the
Act. Therefore, the learned Magistrate was in error in
rejecting the complaint on the sole ground that the
complainant was not entitled to file the complaint.
Even otherwise in the absence of a specific
qualification, if the person complaining has a subsisting
interest in the protection of the registered trade mark, his
complaint cannot be rejected on the
183
ground that he had no cause of action nor sufficient
subsisting interest to file the complaint. M/s Mangalore
Ganesh Beedies Works, a partnership firm is the registered
owner of trade marks, falsification and infringement of
which is complained by the present complainant, who is not
only a dealer in these beedies manufactured and sold by the
registered owner of the trade marks, but he is also the
constituted attorney of the owners of the registered trade
mark. To say that the owner of the registered trade mark can
alone file the complaint is contrary to the provisions of
the statute and commonsense and reason. Therefore, the order
of the learned Magistrate dismissing the complaint at the
threshold on the ground that the present appellant has no
cause of action to file the complaint is utterly
unsustainable and must be quashed and set aside.
Surprisingly, the High Court dismissed the revision petition
of the complainant in limine which order is equally
unsustainable and must be set aside.
This appeal is accordingly allowed and order of the
learned Magistrate dismissing the complaint and refusing to
issue process dated February 20, 1980 and the order of the
High Court rejecting the revision petition in limine dated
November 4, 1980 are set aside and the matter is remanded to
the learned Magistrate to proceed further according to law
in the light of the observations made in this judgment.
H.L.C. Appeal allowed.
184