Full Judgment Text
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CASE NO.:
Appeal (crl.) 693 of 2008
PETITIONER:
P.D. Lakhani & Anr
RESPONDENT:
State of Punjab & Anr
DATE OF JUDGMENT: 22/04/2008
BENCH:
S.B. Sinha & V.S. Sirpurkar
JUDGMENT:
J U D G M E N T
REPORTABLE
CRIMINAL APPEAL NO. 693 OF 2008
(Arising out of SLP (Crl.) No.5345 of 2007)
S.B. Sinha, J.
1. Leave granted.
2. Applicability of Section 195(1) of the Code of Criminal Procedure,
1973 (the Code) is in question in this appeal which arises out of a judgment
and order dated 17.8.2007 passed by the High Court of Punjab and Haryana
in Criminal Miscellaneous No.62858 of 2005.
3. Lakhani Rubber Udyog Ltd. Manufactures Hawai Chappel. They are
registered owners of a trademark. Inter alia, on the premise that M/s.
Saraswati Utpadan Pvt. Ltd., Respondent No.2 herein had been marketing
inferior goods with the label ’Lakhani’ illegally, a complaint was lodged by
the second appellant herein to SHO, Police Station Jalandhar.
He was asked to approach the Senior Superintendent of Police,
Jallandhar.
On or about 18.1.2005, the second appellant approached the Senior
Superintendent of Police, Jallandhar with a written complaint, stating :
"The inferior quality goods bearing the falsified
trade mark and as are packed infringing
labels/cartons are being sold and offered for sale at
various places in Faridabad and the purchasing
public is being deceived and cheated by such
persons. The Government is also being defrauded
by huge reveues on account of the illegal trade
activities of such persons.
We wish to bring it to your notice that such
persons/traders have full knowledge about the
legal and vested rights of our company and are not
only committing acts of falsification/infringement
and are also abetting the infringement of copyright
and are committing offence as are cognizable and
are punishable under Section 63 of the Copyright
Act read with Section 78-79 of the Trade and
Merchandise Marks Act, 1958.
We further submit that the said unscrupulous
persons have in their power and possession dies,
the goods to which false trade marks, false trade
description has been applied including the material
and with logo, which are used for the purpose of
falsifying our company’s Trade MarK and Logo.
The said goods are also offered for sale by the said
accused.
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You are requested to take legal action against the
abovesaid parties and oblige."
4. In the body of the said complaint itself, the Senior Superintendent of
Police directed one Gian Singh, to comply with the said request of the
second appellant and report. When a search was sought to be carried out in
the premises of the respondent purported to be on the basis of the said
direction, a large number of people objected thereto. They obstructed in the
proceeding of search and misbehaved with the raiding party. However,
nothing objectionable was found in the factory. A report to the said effect
was submitted by the aforementioned Gian Singh, In-charge, Special Cell of
the CIA.
5. Another report was filed by the Superintendent of Police (Detective)
on 8.4.2005 before the Senior Superintendent of Police, stating :
"On inquiry of aforesaid application, it was found
that owner of Lakhani Rubber Udyog, 130, Sector
24, Faridabad had submitted an application
No.102-Peshi 16/1/2005 concerning duplicate
hawai chappal to the SSP. It was forwarded to
Gian Singh, Insp. CIA for necessary action Gian
Singh Insp. on 19/1/2005 along with employees
and Sh. Munish Arora, Adv. Sh.N.D. Arora,
Marketing Advisor, Manohar Juneja and Sanjay
Sood, Marketing Manager of Lakhani Rubber
Udyog Limited, Faridabad, Haryana, reached at
the factory of Saraswati Utpadan, at Dogri Road,
for checking and made the search of the factory.
During this period for the opposition put by the
owners of the factory there was little altercation
also took place. During search neither anything in
the name Lakhani Chappal nor anything of the like
appearance was found and also nothing
objectionable thing was found. Therefore, the
application submitted by the aforesaid Lakhani
Rubber Udyog, Faridabad was found to be false
after investigation. Due to which the Saraswati
Utpadan Pvt. Ltd. had lost its goodwill. Whereas
the SHO Adampur is being directed to take action
against the aforesaid officer of Lakhani Rubber
Ltd. U/s 182 IPC. No misbehave with anybody
proved on the part of Gian Signh Insp. He has
complied with the orders of the senior officers. No
further action is required on the application. It is
suggested that the application is consigned to
record. Report is submitted."
6. The Station House Officer of the Police Station, Adampur thereafter
filed a complaint petition on or about 11.5.2005 before the Chief Judicial
Magistrate, inter alia, stating :
"During investigation complaint lodged by
Lakhani Rubber Udyog Limited, Faridabad was
found false. Due to this, reputation of Saraswati
Udyog Private Limited, Ahlwalpur got damage.
On this a complaint No.66-PLZ dated 14/2/05
given to Sh. SSP Sahib, bahadur, Jalandhar by
M/s. Sarswati Udyog Private Limited. It was
investigated by Sh. SP-D Sahib, Jalandhar. After
investigation they found that complaint filed by
Lakhani Rubber Udyog Limited is a false one and
they directed to take necessary action U/s 182 IPC
against the accused. Kalendera was prepared in
accordance with the order of Sh. SP-D Sahib,
Jalandhar (letter No.1086-Reader SP-D/P dated
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9.4.05 and P.S. No.512-5E dated 9.4.05) and sent
to you for necessary action. The under mentioned
witnesses will give evidence against the accused
and they should be called through summons and
accused should be given proper punishment."
7. Legality and/or validity of the said report was questioned by the
appellants herein before the High Court of Punjab and Haryana by filing an
application under Section 482 of the Code. By reason of the impugned
judgment dated 17.8.2005, the High Court dismissed the said application.
8. Mr. K.V. Vishwanathan, learned counsel appearing on behalf of the
appellant, would submit that having regard to the terminologies used in
Section 195(1) of the Code of Criminal Procedure, 1973 the complaint
petition could have been filed only by the Senior Superintendent of Police,
Jalandhar or any authority higher in rank to him. In any event, the
Managing Director of Lakhani being not concerned with the lodging of the
earlier complaint, the complaint in question was not maintainable against
him.
9. Mr. Gupta, learned counsel appearing on behalf of the respondent, on
the other hand, urged as the matter is pending before the Trial Judge, this
Court, at this stage, should not interfere with the impugned judgment.
It was contended that in effect and substance, the complaint was filed
by the appellant No.2 only before the Station House Officer which was
referred to Senior Superintendent of Police as the question involved was
infringement of the laws governing Intellectual Properties. In any event, as
the complaint petition having been filed pursuant to the directions of the
Senior Superintendent of Police itself, it is valid in law.
Section 182 of the Indian Penal Code, indisputably, provides for an
offence falling under Chapter X of the Indian Penal Code. Section 195
provides for prosecution for contempt of lawful authority of public servant,
for offences against public servant and for offences relating to documents
given in evidence. It contains an embargo stating that ’no court shall take
cognizance of an offence punishable, inter alia, under the aforementioned
provision except on the complaint in writing by the public servant concerned
or by some other public servant to whom he is administratively subordinate’.
’Contempt of a public servant’ has a definite connotation. Such contempt
must be provided for by law. It must be found to be false.
The Station House Officer, Jallandhar did not act on the said
complaint. He asked the appellant No.2 to bring the same to the notice of
the Senior Superintendent Police, Jalandhar, Complaint Branch, which he
did. It was, thus, a complaint to a higher authority.
10. The Senior Superintendent of Police only had asked the
Superintendent of Police, Detective Branch to enquire into the matter and
report within seven days.
Shri Gian Singh, pursuant thereto was asked to carry out the necessary
search of the premises of the second respondent.
11. The report of compliance by Gian Singh was made to the CIA staff.
CIA staff, in turn, placed it before the Senior Superintendent of Police. The
proceedings, therefore, were, indisputably, initiated by the Senior
Superintendent of Police, Jallandhar and not by the Station House Officer,.
12. The Station House Officer would have jurisdiction to investigate into
the matter provided a first information report was lodged by him in terms of
the complaint made by the appellant No.2. Whatever action was taken in the
matter was pursuant to the order of the Senior Superintendent of Police
Jalandhar.
The High Court, in our opinion, thus, committed a manifest error in so
far as it held that the as the complaint was addressed to the SHO, he was the
appropriate authority to lodge a complaint in respect of an offence
punishable under Section 182 of the Indian Penal Code.
The fact that the search was made pursuant to the directions issued by
the Senior Superintendent of Police, Jalandhar is not in dispute. Section 195
contains a bar on the Magistrate to take cognizance of any offence. When a
complaint is not made by the appropriate public servant, the Court will have
no jurisdiction in respect thereof. Any trial held pursuant thereto would be
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wholly without jurisdiction. In a case of this nature, representation, if any,
for all intent and purport was made before the Senior Superintendent of
Police and not before the Station House Officer.
13. No complaint, therefore, could be lodged before the learned
Magistrate by the Station House Officer. Even assuming that the same was
done under the directions of Senior Superintendent of Police, Jallandhar,
Section 195, in no uncertain terms, directs filing of an appropriate complaint
petition only by the public servant concerned or his superior officer. It,
therefore, cannot be done by an inferior officer. It does not provide for
delegation of the function of the public servant concerned.
We may notice that in terms of sub-section (3) of Section 340 of the
Code, a complaint may be signed by such an officer as the High Court may
appoint if the complaint is made by the High Court. But in all other cases,
the same is to be done by the presiding officer of the court or by such officer
of the court as it may authorize in writing in this behalf. Legislature, thus,
wherever thought necessary to empower a court or public servant to delegate
his power, made provisions therefor. As the statute does not contemplate
delegation of his power by the Senior Superintendent of Police, we cannot
assume that there exists such a provision. A power to delegate, when a
complete bar is created, must be express; it being not an incidental power.
14. In Daulat Ram v. State of Punjab [(1962) 2 SCR 812], Hidayatullah, J.
(as the learned Judge then was), held as under :
"\005 In our opinion, this is not a due compliance
with the provisions of that section. What the
section contemplates is that the complaint must be
in writing by the public servant concerned and
there is no such compliance in this case."
The said decision was followed by a Division Bench of this Court in
State of U.P. v. Mata Bhikh & Ors. [(1994) 4 SCC 95], stating
"A cursory reading of Section 195(1)(a) makes out
that in case a public servant concerned who has
promulgated an order which has not been obeyed
or which has been disobeyed, does not prefer to
give a complaint or refuses to give a complaint
then it is open to the superior public servant to
whom the officer who initially passed the order is
administratively subordinate to prefer a complaint
in respect of the disobedience of the order
promulgated by his subordinate. The word
’subordinate’ means administratively subordinate,
i.e., some other public servant who is his official
superior and under whose administrative control he
works."
The said decisions are squarely applicable to the facts of the present
case.
15. For the reasons aforementioned, the impugned judgment cannot be
sustained. It is set aside accordingly. Appeal is allowed. However, there
cannot be any doubt whatsoever that another complaint petition would be
maintainable at the instance of the appropriate authority.