The court emphasized the mandatory requirement of obtaining the opinion of the Registrar for infringement of Trade Mark before registering an FIR for offenses under sections 103 to 105 of the Trade Mark Act.

JUDGMENT :

1. Rule. Learned advocate Mr. Apurva Dave waives service of rule for respondent no.2 and learned APP Ms. Asmita Patel waives service of rule for respondent no.1 and respondent no.3.

2. With the consent of learned advocates for the parties, the matter is taken up for final hearing.

3. Heard learned advocate Mr. Sachin Vasavada for the applicant, learned advocate Mr. Apurva Dave for respondent no.2 and learned APP for respondent no.1 – State and respondent no.3.

4. This petition is filed under section 482 of the Cr.P.C. witnessing following reliefs :-

“(A) Your Lordships may be pleased to admit and allow the present petition.

(B) Your Lordships may be pleased to quash and set aside the FIR registered as Crime Register No.3432 of 2013 at Annexure A and further pleased to quash and set aside the charge sheet dated 23.01.2014 which is filed in pending Criminal Case No.96 of 2014 at Court of Metropolitan Magistrate alongwith the Criminal Case No.305 of 2013.

(C) Pending admission and final hearing of the present petition, Your Lordships may be pleased to stay the pending criminal proceedings being Criminal Case No.96 of 2014 and further be pleased to stay the FIR registered as Crime Register No.3432 of 2013 dated 25.11.2013 and further proceedings on the basis of the said FIR.”

5. Stated briefly, the facts of the case are as under :-

5.1. That the petitioner is carrying out business of selling auto parts in Ahmedabad City in the name and style of Rushab Automobiles. One Sanjay Kumar Verma having claimed that he is officer of IPR Vigilance India Company and has contract with various companies to file FIR. On 25.11.2013, he received tip that Rushab Automobiles, owner of the petitioner/accused is selling duplicate part of Hyundai motor company. Upon receipt of such tip, complainant approached CID (Crime), Gandhinagar and produced certain evidence. Consequent thereto shop of the petitioner was raided by the police along with the complainant. It was found that spare parts of Hyundai motor company at the shop were duplicate. On completion of raid, FIR being C.R.No.3432 of 2013 was registered with Naranpura Police Station, Ahmedabad for the offence under sections 101, 102, 103, 104, 105 of the Trade Mark Act, 1999 (in short ‘the Act’). Investigation was completed and charge sheet is also filed. Criminal Case No.96 of 2014, therefore, is pending before the learned Metropolitan Magistrate Court along with Criminal Case No.305 of 2013.

6. Learned advocate Mr. Sachin Vasavada would submit two fold submissions. Firstly, he would submit that prior to filing of FIR under section 103 and 104 of the Act, in view of section 115(4) of the Act read with Rule 110 of the Trade Mark Rules, it is mandatory upon the Investigating Officer to obtain opinion of the Registrar for infringement of Trade Mark about infringement of the trade mark. The investigating officer has not obtained the opinion. Hence, there is breach of statutory provision. He would further submit that bare reading of the FIR does not indicate that selling of duplicate spare parts of Hyundai Motor Company would fall within offence of section 101 to 105 of the Act. He would bring to the notice order dated 27.06.2023 passed by the Co-ordinate Bench in Special Criminal Application No.693 of 2014 between Atulbhai Rasikbhai Dudhwala v/s. State of Gujarat. The said Special Criminal Application was filed to quash FIR being C.R.No.3042 of 2013 and Criminal Case No.305 of 2013 arising out of said FIR. Vide order dated 27.06.2023, Coordinate Bench allowed the petition and quashed and set aside the FIR. Upon such submissions, learned advocate Mr. Vasavada submits that on the face of FIR, it is absurd and improbable and not in consonance with the provisions of law and allowing proceeding under said FIR would be abuse of process of law. Thus, he submits to allow this petition.

7. Jointly, learned advocate Mr. Apurava Dave for the original complainant and learned APP Mr. Asmita Patel for the State woul