KUNHALI Vs. STATE OF KERALA

JUDGEMENT

(1.) The accused, numbering four, in Calendar Case No. 67 of 1994 before the Chief Judicial Magistrate, Kozhikode, are the petitioners in this Criminal Revision Petition. The petitioners were prosecuted for offences punishable under Section 420 read with Section 486 read with Section 34of the Indian Penal Code and Section 79 of the Trade and Merchandise Marks Act, 1958. The prosecution case is as follows: On 27-10-1993 at about 1.30 P.M., the accused were caught making fake beedies in the model of "Kerala Dinesh Beedies" for sale in the building bearing door No. 17/1218 of Kozhikode Corporation. The 1st accused had rights over the building and the same was in his possession. The accused had also made fake labels to be affixed on the bundles of beedies and fake wrappers to wrap the beedies and fake stamps of "Kerala-Dinesh Beedies". PW1 received information that fake Dinesh beedies were being manufactured at Chinthavalappu near Palayam, Kozhikode and sold as "Kerala Dinesh Beedies". PW1 filed Ext. P1 complaint before the Kasba police. The police conducted a search of the building at 1.30 P.M. on 27-10-1993. PW1 also accompanied the police. In the abovesaid building, they found the accused preparing bundles of fake beedies in the model of "Kerala Dinesh Beedies" for sale. They also found fake labels wrappers etc. Thus the accused cheated the Kerala Dinesh Beedi Central Co-operative Society. Thereby the accused committed offences punishable under Sections 420 read with Section 486 read with Section 34 of the Indian Penal Code and Section 79 of the Trade and Merchandise Marks Act, 1958. The Chief Judicial Magistrate convicted all the accused and sentenced them to undergo rigorous imprisonment for one year under section 420 of the I.P.C. and rigorous imprisonment for six months under Section 79 of the Trade and Merchandise Marks Act, 1958. The sentences were to run concurrently. All the accused together filed Criminal Appeal No. 295 of 1999 before the Court of Sessions, Kozhikode, which was dismissed, confirming the conviction and sentences. The petitioners are challenging the judgments of the courts below in this Crl.R.P.

(2.) The petitioners raise five contentions before me. The first is that the entire prosecution is vitiated for non-compliance with the procedure prescribed under Section 155 of the Code of Criminal Procedure. The complaint filed by PW1 having not disclosed an Offence under Section 420 or 486 of the I.P.C. and the offence under Section 79 of the Trade and Merchandise Marks Act, 1958 being a non-cognisable offence, the police could not have conducted the investigation without obtaining orders from the magistrate having jurisdiction to try the case as stipulated in Section 155(2) of the Code of Criminal Procedure and the same having not done in this case, the petitioners are entitled to an acquittal in this case, is the contention raised. In support of that contention the counsel for the petitioners rely on the following decisions:

(3.) In answer, the learned Public Prosecutor would contend that none of the grounds are tenable. He points out that since both the courts have found the petitioners guilty of offence punishable under Section 420 also, the 1st contention has no relevance, since an offence under Section 420 is a cognisable, offence. Further such a contention was never taken before the trial court. It is further contended that even assuming that there is violation of the provisions of Section 155(2) of the Cr.P.C., that does not vitiate the trial conducted without noticing such a defect in the investigation. In support of that contention, the learned public prosecutor relies on the following decisions: