IMPORTANT POINT
The court established that non-compliance with the Registrar's opinion requirement under the Trade Marks Act is an irregularity that does not invalidate the investigation or proceedings.

ORDER :

1. The petitioner is before this Court seeking the following reliefs:

“To set aside the order dated 26.12.2016 in Criminal Revision Petition no. 108/2016 passed by the IIIrd Additional District and Sessions Judge at Hassan vide Annexure-A and the order dated 10/05/2016 passed in C.C. No. 338/2014 by the learned Senior Civil Judge, Arsikere vide Annexure-B and for the offences punishable under Section 482, 483, 420 of IPC r/w 102, 103, 104 of Trade Mark Act 1999 in C.C. No. 338/2014 (Crime No. 297/2013) in the interest of justice and equity.”

2. The petitioner claims to be in the business of the sale of gram flour under the name and style of “MRS Ganapathi” brand. Respondent No. 2 lodged a complaint on 04.10.2013 with respondent No. 1-Police for the offences punishable under Section 63 of the Copyright Act, 1967 and Sections 482, 483 and 420 of Indian Penal Code, 1860 (hereinafter referred to as IPC for short) which came to be registered as Crime No. 297/2013 by Arasikere Town Police Station.

3. In pursuance of the said registration of the FIR, a search of the premises of the petitioner was conducted. The Police seized certain bags of gram flour and other items. Investigation was completed, and a charge sheet was laid for the offences punishable under Sections 482, 483 and 420 of the IPC read with Sections 102, 103 and 104 of the Trade Mark Act, 1999 (for short TM Act). It is challenging the same the petitioner is before this Court.

4. Sri. Praveen Kumar G.R. learned counsel for the petitioner, would submit that:

4.1. Initially, the complaint was lodged for the offence punishable under Section 63 of the Copyright Act and Sections 482, 483 and 420 of IPC. The chargesheet has been laid for the offences punishable under Sections 482, 483 and 420 of the IPC read with Sections 102, 103 and 104 of the TM Act. The said offences under Sections 102, 103, 104 of the TM Act replaced the earlier allegation of the offence punishable under Section 63 of the Copyright Act.

4.2. His submission being that the complaint was purposefully wrongly registered under Section 63 of the Copyright Act, thereafter a search and seizure was conducted at the premises of the petitioner to by-pass the requisite requirements under Sections 102, 103, and 104 of the TM Act, 1999 and it is on account of the same an abuse of the process of law has been committed by both the complainant and the Investigating Officer and subsequently the chargesheet was laid for offences under Sections 102, 103 and 104 of the TM Act without complying with the requisites of Sub-Section (4) of Section 115 of the TM Act.

4.3. In terms of proviso to Sub-Section (4) of Section 115 of the TM Act, no Police Officer below the rank of Deputy Superintendent of Police can issue instructions to conduct any search or seizure unless he obtains the opinion of the Registrar of Trade Marks and he shall abide by such opinion.

4.4. In the present case, to obviate the requirements of this proviso to sub-section (4) of Section 115 of the TM Act the complaint has been registered under Section 63 of the Copyright Act. If at all a complaint had been registered under Sections 102, 103 and 104 of TM Act, the requirements of the proviso would have been clear to the Investigating Officer which would have entailed the Investigating Officer obtaining the necessary opinion from the Registrar of Trade Marks.

4.5. Thus, he submits that the entire criminal process, which has been set in motion by way of the complaint being registered by respondent No. 2-complainant, under a wrong provision of law and obtaining the benefit thereof by way of search and seizure and subsequently substituting the provisions of Sections 102, 103 and 104 of the TM Act which required compliance of the proviso to Sub-Section (4) of Section 115 of the TM Act is completely misconceived and an abuse of the process of law and Court and is as such required to be quashed.

4.6. In the chargesheet filed, offences under Section 63 of the Copyright Act ar