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BOMBAY HIGH COURT (AT NAGPUR)
SHIMPI, J.
Laxmikant Vyankatesh Pande – Applicant
Versus
Gokuldas Popatlal Sindhi and another - Opponents.
Criminal Revn. Appln. No. 252 of 1973
Decided On:- 29 -3 -1974.
CRIMINAL PROCEDURE CODE - SECTION 202, 203 - COMPLAINT - DISMISSAL - JURISDICTION OF MAGISTRATE - ENQUIRY - PARTICIPATION OF ACCUSED - DOCUMENTS - CONSIDERATION - LEGALITY - SUPREME COURT INTERPRETATION - SECTION 203, CR. P.C. - SCOPE AND PURPOSE - MATERIAL TO BE CONSIDERED - EXTRANEOU MATERIAL - CONSIDERATION - ILLEGALITY - ORDER OF MAGISTRATE AND ADDITIONAL SESSIONS JUDGE - SET ASIDE - MAGISTRATE TO PASS ORDERS ON COMPLAINT ACCORDING TO CRIMINAL PROCEDURE CODE PROVISIONS.
Fact of the Case:
The complainant, Controller of Brooke Bond India Limited, filed a complaint under Section 79 of the Trade and Merchandise Marks Act, 1958, and Section 420 of the Indian Penal Code against unknown persons for selling tea packets with identical wrappers to the complainant's registered brand. The Magistrate ordered the police to search for the sellers and sent the complaint for enquiry to the police station. During the enquiry, one Gokuldas, a partner of a firm selling the tea, filed an application under Section 203 of the Criminal Procedure Code (Cr. P.C.) for dismissing the complaint. He submitted that the complainant was aware of the Indore firm's manufacture of the tea brand and that a civil suit was filed in the District Judge, Indore's court, for permanent injunction and other reliefs. The Magistrate allowed Gokuldas to produce certain documents, including the plaint filed by Brooke Bond India Limited and the order passed on an application for temporary injunction. The Magistrate dismissed the complaint, concluding that there was no sufficient ground for proceeding against Gokuldas or his firm. The complainant filed a revision application, which was also dismissed by the Additional Sessions Judge.
Finding of the Court:
The High Court held that the Magistrate acted in excess of jurisdiction by allowing Gokuldas to produce extraneous material and considering it while dismissing the complaint. The Court observed that the Magistrate should have considered only the complaint, the statement of the complainant recorded on oath, and the result of the enquiry under Section 202, Cr. P.C., and not relied on any other material. The Court further held that the accused has no right to take part in the enquiry under Section 202, Cr. P.C., and the Magistrate cannot permit such participation. The Court set aside the orders of the Magistrate and the Additional Sessions Judge and directed the Magistrate to pass orders on the complaint according to the provisions of the Cr. P.C. in light of the observations made in the revision application.
Issues: 1. Whether the Magistrate had the jurisdiction to allow the accused to produce documents and consider them while dismissing the complaint under Section 203, Cr. P.C.? 2. Whether the accused can participate in the enquiry under Section 202, Cr. P.C.? 3. What is the scope and purpose of Section 203, Cr. P.C., and what material can be considered by the Magistrate while deciding whether to issue process or dismiss the complaint?
Ratio Decidendi: 1. The Magistrate does not have the jurisdiction to allow the accused to produce documents and consider them while dismissing the complaint under Section 203, Cr. P.C. The Magistrate is entitled to consider only the complaint, the statement of the complainant recorded on oath, and the result of the enquiry under Section 202, Cr. P.C., and not rely on any other material. 2. The accused cannot participate in the enquiry under Section 202, Cr. P.C. The accused has the right to remain present either personally or through a counsel or agent, but cannot take part in the proceedings or examine witnesses. 3. The scope and purpose of Section 203, Cr. P.C., is to determine whether there is sufficient ground for proceeding with the complaint. The Magistrate can consider the evidence taken by him or recorded in an enquiry under Section 202, or statements made in an investigation under that section, as the case may be. The Magistrate cannot rely upon any material besides this.
Final Decision: The High Court set aside the orders of the Magistrate and the Additional Sessions Judge and directed the Magistrate to pass orders on the complaint according to the provisions of the Cr. P.C. in light of the observations made in the revision application.
2. The facts in brief are as under -
The complainant is the Controller of Akola area of Brooke Bond India Limited, a Company incorporated under the Indian Companies Act having its registered office at Calcutta. The Company has got branches all over India. The Company is selling one brand which is known as "Special Hotel Blend." The said tea is wrapped in a packet with a floral design with a rose flower with green leaves and a stem underneath. The details about this wrapper is to be found in paragraph No. 3 of the complaint. The complainant further recited in the complaint that the necessary trade mark of the said wrapper has been duly obtained by the Brooke-Bond India Limited in their own name and accordingly the same is used by them for selling their products stated above. The complainant further asserted that another tea is being sold in wrappers containing identical packets with the only difference in the name, namely, Flower Brand Tea but the wrappers, the floral designs are very much identical to the one which has been got registered by Brooke Bond India Limited. The design used by those sellers also shows a floral design identical to the one used by the complainant's company and on these allegations filed a complaint under Section 79 of Trade and Merchandise Marks Act, 1958 and under Section 420 of the Indian Penal Code against some unknown persons within the jurisdiction of the Judicial Magistrate First Class Akola. Along with the complaint an application was given under Section 96 of the Criminal P.C. for seizing the packets of the tea wrapped in imitative brand. On receipt of the complaint, the Judicial Magistrate First Class ordered the police to search for whether anybody was selling tea packets as stated in the complaint and has also sent the complaint for enquiry to the police station of Akola. This complaint was filed on 4-5-1973. On the very day or on 5-5-1973 the police seized 72 boxes in the premises of a firm known as "Gemandas Popatlal and Company." The non-applicant No. 1 in this revision application is one Gokuldas who is the partner of this Company. On 5-3-1973 Shri Gokuldas made an application that these boxes were taken possession from his firm. He was selling them as an Agent of some firm from Indore and they should be returned in his custody on passing an order of Supratnama. Accordingly 67 boxes were returned to him and 5 boxes were retained in Court.
3. When the enquiry was in progress before the police, it appears that on 11-5-1973 Gokuldas made an application under Section 203 of the Criminal P.C. for dismissing the complaint. In this application Gokuldas stated that he was the agent for Gold Brand Tea Manufacturer, a partnership firm of Indore for Akola District. He further stated that complainant that is the Controller of Brooke Bond India Limited was fully aware of this fact that this brand of tea was manufactured by the firm of Indore. He has stated that Brooke Bond India Limited had given a notice to Gokuldas in the year 1962 that the Indore firm had violated provisions of Sections 105 and 106 of the Indian Trade Merchandise Marks Act, 1958. The Indore firm gave a reply and in the year 1967 the Brooke Bond India Limited filed a civil suit in the Court of the District Judge, Indore, for permanent injunction and other necessary reliefs. In that suit a prayer was made by filling an application that temporary injunction be granted against the firm of Indore. That application was not pressed for temporary injunction on certain terms and conditions. It is unnecessary for the disposal of this revision application to enumerate
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