SHIV DAYAL Vs. SOHAN LAL BASSAR

JUDGEMENT

(1.) THESE are three references by the Additional Sessions Judge, Jullundur, by three separate orders dated 5th August, 1968, recommending that in one case the order of the Judicial Magistrate First Class, Jullundur, dated 21st August, 1967, and in other two cases the order of the Judicial Magistrate First Class, Phillaur, dated 22nd May, 1968, whereby search warrants for taking possession of trade marks, bill books, etc. , were issued, be quashed. As all these references involve common questions of law and fact and the cases out of which these references have arisen relate to the same parties, the present order will dispose of all the three references.

(2.) THE facts giving rise to these references have been stated in detail in the referring orders and are not in dispute. Bakshi Ram and his two brothers Shiv dayal and Kishan Chand were joint owners of two firms known as. Amin Chand and Sons and Landra Engineering and Foundry Works. These were partnership firms and were engaged in the manufacture and sale of chaff cutters, their parts, etc. The firms were using registered trade marks on the manufactured goods in their factories which were situated at Landra and Phillaur. The trade marks were registered with the Registrar of Trade Marks at Bombay under different names which it is not necessary to set out. Bakshi Ram, the father of Sohan Lal respondent, suspecting that his partners had become dishonest and had started misappropriating the assets of the firms served a notice on his partners dissolving the firms. The notice was received by the other partners in February, 1967, and in reply it was requested by the other two partners that the dissolution be postponed till 31st March, 1968, being the end of the financial year. Bakshi Ram, however, did not agree to this and only allowed the firms to continue running for the purpose of winding up till 31st March, 1967. In spite of the dissolution of the firms the partners other than Bakshi Ram continued to run the business of manufacture and sale of agricultural implements under the trade marks which had been got registered by the firms for their own exclusive use and benefit. Being of the view that the acts of Shiv Dayal and Kishan Chand offended Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958, and Sections 416, 420, 478, 482, 463, 485 and 486 of the Indian Penal Code, Bakshi Ram got a complaint filed through his son Sohan Lal against his two partners Shiv Dayal and Kishan chand in the Court of the Judicial Magistrate First Class at Jullundur. In that complaint he also made an application for the issuance of warrants under Section 96 of the Criminal Procedure Code and on that application search warrants for the recovery of the goods bearing the infringed trade marks and other materials such as seals, stamps, patterns, etc. , were issued. Shiv Dayal and Kishan Chand filed a revision petition before the Court of Session and obtained a stay order. In the meantime, Bakshi Ram died on 4th February, 1968, and his son Sohan Lal learning that the other two partners of the firms, namely, Shiv Dayal and Kishan chand, have formed two separate firms by the inclusion of a third partner in each firm under the name and style of Messrs Amin Chand and Sons and Landra engineering and Foundry Works, filed two separate complaints in the Court of the judicial Magistrate First Class, Phillaur on 21st May, 1968, under Sections 78 and 79 of the Trade and Merchandise Marks Act. 1958, and Sections 416, 420, 478, 482, 483. 485 and 486 of the Indian Penal Code on the allegations that the accused in those cases were using the Infringed trade marks which they had no right or authority to use and which were the property of the firms before they were dissolved. In these complaints applications under Section 96 of the Criminal Procedure Code for issuance of search warrants for the search of the office, factory and go-down and recovery of trade marks, patterns and bill books were also made. On these applications search warrants as prayed for were issued on 22nd May. 1968. Against these orders Shiv Dayal and Kishan Chand filed revision petitions praying for the quashing of the search warrants. The learned Additional Sessions Judge, jullundur, by three separate orders dated 5th August, 1968, has recommended that the search warrants in all the three cases should be quashed. The recommendation has been made on the following two grounds:- (1) To issue a search warrant for the production of the papers and books in a particular premises for the purpose of an enquiry as to whether the owner of the premises had used or sold articles with counterfeit trade marks was a gross perversion of law and that the warrant had been issued without the learned magistrate fully appreciating the gravity of the situation and the effect of his order, (2) It was not stated in the order that the documents were necessary or desirable for the purpose of the enquiry before him and the Magistrate had not given any reason for issuing the search warrants under Section 96 of the Criminal P. C.

(3.) I have heard the learned counsel for the parties at length. In order to appreciate the rival contentions of the parties, a reference will have to be made to the applications filed by Sohan Lal under Section 96 and the orders passed thereon. The applications in all the three cases are in identical terms and the relevant portions of one of those are as follows:--