MANGALPRASAD JETHALAL UPADHYAY Vs. THAKKAR ANANDJI RANCHHODDAS

JUDGEMENT

(1.) The facts leading to the present Revision Application briefly stated are as under: The petitioner filed a complaint in the Court of the learned Judicial Magistrate First Class Bhachau complaining of the commission of offences punishable under secs. 78 and 79 of the Trade and Merchandise Marks Act 1958 In that complaint which was lodged on 29/11/1978 the petitioner did not name the accused presumably because at that point of time he was not aware as to who was responsible for the infringement of his registered trade marks. Messrs Hiralal Parbhuram 86 Sons are the owners of the trade mark Hiralal Chhap Yeola Beedi No. 501 The petitioner is an employee as well as a power-of-attorney holder of the said firm owning the trade mark. The allegation in the complaint was that some person was responsible for manufacturing beedies of inferior quality and selling them by affixing labels deceptively similar to the label which was a registered trade mark of the aforesaid firm. On the institution of this complaint the learned Magistrate took cognizance under sec. 200 of the Code of Criminal Procedure. He then directed an inquiry under sec. 202 of the Code and in the course of the said inquiry it appears that a Head Constable of the Bhachau Police Station directed that the premises alleged to be in the occupation of the respondents Nos. 1 and 2 may be searched in the presence of the agent of the firm owning the trade mark. During the course of inquiry and search apart from beedi bundles carrying the labels of Hiralal Chhap Yeola Beedi No. 501 beedi bundles of two other varieties carrying the labels of Ganesh Chhap and Number 30 beedies were found from the said premises. In respect of the other two varieties of beedies also it was found that trade marks owned by others (not the present petitioner or his firm) were infringed. In respect of these two infringements the Police Head Constable lodged separate complaints but in respect of the infringement of Hiralal Chhap Yeola Beedi a report was submitted to the learned Magistrate in Miscellaneous Criminal Application No. 5 of 1978 wherein order for inquiry was made for such further action as may be considered appropriate. It appears that on the basis of the complaint filed by the Head Constable in respect of the infringement of Ganesh Chhap and Number Thirty beedies separate Criminal Cases Nos. 216 and 217 of 1979 were registered. Both those cases ended in the acquittal of the present respondents Nos. 1 and 2. However the learned Magistrate did not take any further action after the receipt of the report filed the Head Constable in the inquiry directed under sec. 202 of the Code in respect of the infringement concerning the registered trade mark Hiralal Chhap Yeola Beedi No. 501. In other words the learned Magistrate did not either dismiss the complaint under sec. 203 of the Code after receipt of the said report nor did he issue process as required by sec. 204 of the Code. This situation of stalemate forced the petitioner to file another complaint which was registered as Criminal Case No. 394 of 1979 wherein process was issued. It may be mentioned that in this subsequent complaint respondent No. 3 is also shown as a co-accused. Respondent No. 2 was not an accused in Criminal Cases Nos. 216 and 217 of 1979 pertaining to Ganesh Chhap and Number Thirty beedies which ended in the acquittal of the accused persons. The subsequently Instituted complaint (Criminal Case No. 394 of 1979) was ordered to be tried along which Criminal Miscellaneous Application No. 5 of 1978 vide order dated 10/07/1979. It appears that after this order of amalgamation was made by the learned Magistrate the accused gave an application to the effect that since they were acquitted in the earlier two criminal cases Nos. 216 and 217 of 1979 they could not be tried in respect of the offence referred to in Miscellaneous Criminal Application No. 5 of 1978 and Criminal Case No. 394 of 1979 on the principle of autrefois acquit in view of sec. 300(1) of the Code. The learned Magistrate upheld this contention and directed the release of accused Nos. 1 and 2 (respondents Nos. 1 and 2 herein) under sec. 3013(1) of the Code and the stoppage of proceedings against accused No. 3 (respondent No. 3 herein) under sec. 258 of the Code. It is against this order passed by the learned Magistrate on 5/10/1929 that the original complainant has filed the present Revision Application.

(2.) Sub-sec. (1) of sec. 300 of the Code reads as under:

(3.) It is necessary to beat in mind the fact that when a Magistrate directs investigation to be made by the police under sub-sec. (1) of sec. 202 of the Code without issuing process against the accused (in the instant case the accused was at that stage an unknown person) he takes cognizance of the offence under sec. 200 of the Code. The investigation which the police carries out is in pursuance of the order or direction issued by the Magistrate under sub-sec. (1) of sec. 202 of the Code. This investigation is thought necessary with a view to ascertaining the truth or falsehood of the allegations made in the complaint. If after the receipt of the report from the police the Magistrate comes to the conclusion that there is no sufficient ground for proceeding with the complaint he shall dismiss the complaint stating in brief the reasons in support of his order. If a complaint is not dismissed under sec. 203 of the Code the Magistrate must if the case is a summons case issue summons for the attendance of the accused and if the case is a warrant case he may issue a warrant or if he thinks fit a summons against the accused. So far as Miscellaneous Criminal Application No. 5 of 1978 is concerned it appears that after the learned Magistrate directed investigation under sub-sec. (1) of sec. 202 of the Code and after the report of the investigating officer was received he neither dismissed the complaint under sec. 203 of the Code nor did he issue process as required by sec. 204of the Code. This resulted in a stalemate and in order to break the stalemate the petitioner lodged another complaint before the same learned Magistrate which came to be registered as Criminal Case No. 394 of 1979 in which process appears to have been issued. It was only thereafter that the wheels began to move and an order was passed amalgamating both the cases namely. Criminal Miscellaneous Application No. 5 of 1978 and Criminal Case No. 394 of 1979. At that stage the accused realised that the proceedings would now proceed against them and therefore they made an application under sec. 300 of the Code stating that since they were acquitted in Criminal Cases Nos. 216 and 217 of 1979 they could not be prosecuted once again for the commission of the same offence or on the same facts for any other offence for which a different charge from the one made against them could have been made under sub-sec. (1) of sec. 221 of the Code in the aforesaid two cases.