Prosecution under the Indian Merchandise Marks Act, 1889 commences when the complaint is filed, not when process is issued.

Judgement

T. L. VENKATARAMA AIYAR, J. : The facts leading up to this appeal are these : On 26th April 1954, the appellant was arrested by the Sisamau Police for offences under Ss. 120, 482, 483, 485 and 486 of the Indian Penal Code on the allegation that he was in possession of 25 packets of Chand Chhap Biri , which were alleged to bear counterfeit trade marks. On 26th May 1954 one Harish Chandra Jain acting on behalf of Messrs. Mohan Lal Hargovind Das filed a complaint charging that the appellant was in possession of counterfeit bidis, wrappers and labels and praying that a case under the sections above mentioned be registered and investigated. On that, the Magistrate passed the following order :

"S. O. Sisamau. Please investigate and register a case."

After investigation, the police submitted their charge-sheet an 30th September 1954, and summons was ordered to the appellant on 22nd July 1955. On 17th September 1955, the appellant filed an application before the Magistrate wherein he raised a preliminary objection that the proceedings were barred by S. 15 of the Indian Merchandisc Marks Act, 1889 (4 of 1889), hereinafter referred to as the Act. That section provides :

"No such prosecution as is mentioned in the last foregoing section shall be commerced after the expiration of three years next after the commisson of the offence, or one year after the first discovery thereof by the prosecutor, whichever expiration first happens."

2. The contention of the appellant was that the offence was discovered on 26th April 1954, when he was arrested and the goods seized, and that, in consequence, the issue of process on 22nd July 1955 was beyond the period of one year provided under S. 15 of the Act, and that the proceedings should therefore be quashed as barred by limitation. The Magistrate rejected this contention, and a Revision Petition preferred against this order to the Additional Sessions Judge, Kanpur, shared the same fate. The appellant then filed a further Revision Petition to the High Court of Allahabad, being Criminal Revision No. 1594 of 1956, and the same was heard along with other similar Revision Petitions by a Bench consisting of James and Takru, JJ. By their judgment dated 13th May 1958 the learned Judges held that the prosecution commenced when the complaint was presented on 26the May 1954 and that as the discovery was on 26th April 1954 the proceedings were within time under S. 15 of the Act. In view of the importance of the question raised, they granted leave to appeal to this Court under Art. 184 (1) (c) of the Constitution, and that is how the matter comes before us.

3. The point for decision is, when does a prosecution commence for purposes of S. 15 of the Act, whether on the date when the complaint is preferred, or when the process is issued thereon ? The word "prosecution" is not defined in the Act, nor are there any provisions therein bearing on this question. Now, under the law and apart from statutory prescriptions, a prosecution commences, where it is at the instance of a private prosecutor, when the complaint is preferred. The position is thus stated in Halsbury s Laws of England, Vol. X, 3rd Edn., p. 340, para. 630 :

"Criminal prosecutions, except where there are statutory provisions to the contrary, may be commenced at any time after the commission of the offence. A prosecution is commenced, when an information is laid before a justice, or, if there is no information when the accused is brought before a justice to answer the charge, or, it there is no preliminary examination before a justice, when an indictment is preferred."

It is further stated there that different statutes provide for various periods of limitation within which a prosecution could be commenced after the commission of the offence, and that three years is the period provided for an offence under the Merchandise Marks Act, 1887, which corresponds to the Indian Merchandise Marks Act, 1889. It is therefore settled law that unless there is somethin