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IN THE HIGH COURT OF BOMBAY
(Nagpur)
Puranik, S.W. J.
D.M.R. Textiles.... Applicant.
Versus
State Of Maharashtra And Another..... Non-Applicants.
Cri Appln. No. 455 of 1983 decided on 17-8-1983.
Advocate Appeared:
For applicant- V.G. Bhangde.
For non-applicants- M. A. Garud, Government Pleader.
CRIMINAL PROCEDURE CODE - SECTION 93 AND 94 - SEARCH WARRANT - ISSUANCE OF SHOW CAUSE NOTICE TO ACCUSED BEFORE ISSUING SEARCH WARRANT - ABUSE OF PROCESS OF COURT - INHERENT POWERS OF HIGH COURT TO INTERFERE - SUMMARY
Fact of the Case:
The complainant, a manufacturer of readymade garments, filed a private complaint against the accused for infringement of its registered trademarks and copyrights. The complainant also filed an application for issuance of a search warrant against the accused under Sections 93 and 94 of the Criminal Procedure Code.
Finding of the Court:
The trial court issued a show cause notice to the accused instead of issuing a search warrant. The High Court held that the trial court's order was an abuse of process and that the trial court should have issued a search warrant against the accused.
Issues: Whether the trial court erred in issuing a show cause notice to the accused instead of issuing a search warrant.
Ratio Decidendi: The High Court held that the trial court erred in issuing a show cause notice to the accused instead of issuing a search warrant. The High Court held that the issuance of a search warrant is a serious matter and that the trial court should have applied its mind to all the averments and documents before it before issuing a show cause notice. The High Court also held that the trial court's order was an abuse of process because it would have given the accused advance notice to suppress or remove the goods that were allegedly in his possession.
Final Decision: The High Court quashed the trial court's order and directed the trial court to issue a search warrant against the accused.
2. The applicant M/s. D.M.R. Textiles of P.N.Road, Tiruppur, are manufacturers of readymade garments, in particular the men's underwear known as 'banians'. The applicants are the lawful owners of the trade marks “RINGO” and “DMR”. The brand “DMR” is also registered along with the.design under the Copy Rights Act. The above trade marks are also registered under the Trade and Merchandise Marks Act, 1958, and the trade marks registration Nos. are 266940 and 334288.
3. According to the complainant, since long they have been manufacturing these banians with the respective trade mark and copy right and they have earned goodwill and valuable reputation in the market. It is the specific allegation of the complainant, present applicant, that the accused Paramanand Dhingra, a businessman trading in the name and style of “M/s. Ganga Handloom Bhandar” at Readymade Oli, ltwari, Nagpur, is also using the said neck labels on the banians which is similar or deceptively similar to the registered trade mark of the complainant. According to the complaint, the accused is selling, and also has in his possession for sale, such banians with the above trade marks fixed to them. It is further alleged that the accused is doing so with the knowledge that the said trade marks are the property of the complainant, and that the act of the accused amounts to infringement of the rights of the complainant. It is on these allegations that the complainant had filed a private complaint case before the J.M.F.C., Nagpur, which is registered as Complaint Case No. 227 of 1983. The complaint is filed on 6.8.1983 and on the same date, the complainant filed an application before the trial court for issue of search warrant against the accused under Sections 93 and 94 of the Criminal Procedure Code.
4. On hearing the counsel of the complainant and perusal of the application and documents filed with the complaint case, the trial Court passed the following order:-
“ …….Issue show cause notice to the N.A. as to why search warrant should not be issued. Emergent process be issued. Service by Hamdast is allowed.”
The trial court then posted the case for 9.8.1983.
5. It is this order regarding the issue of show cause notice which is impugned by the complainant by this application. The original accused is not joined as a non-applicant in the present proceedings under Section 482 of the Criminal Procedure Code*, inasmuch as no process has been issued to the accused nor any notice has been issued to him by the trial court so far.
6. Shri V.G. Bhangde, Advocate, appeared for the complainant, and the non-applicants, State of Maharashtra and the Trial Court are represented by Shri M.A. Garud, Public Prosecutor. I have heard the counsel for both the parties and I have also perused the application under Section 482 Criminal Procedure Code supported by affidavit of the complainant as well as the annexurcs attached herewith.
7. It is the case of the complainant that it is a manufacturer of ready made garments since lasl 15 years, that it sells its goods in large volume and have earned considerable goodwill and reputation in the market. The complainant has also averred on oath that the trade marks and labels fixed to his garments are duly registered under the Copy Rights Act as well as under the Trade Marks Act. In the said complaint, it has been specifically alleged that civil proceedings have been taken up by the complainant on the Original Side of the Madras High Court against the accused as well as against other dealers. The said civil suit is registered as Civil Suit No. 345 of 1983 be
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