1. This order shall govern the disposal of MCRC No. 2135/90 arising out of Cr. case No. 2165/86. MCRC No. 2136/90 arising out of Cr. Case No. 2167/86 & MCRC No. 2137/90 arising out of Cr. Case No. 2166/86 pending in the Court of C.J. M. Ratlam as common question of law and facts are involved.

2. The prosecution case is that Habib. the supervisor of Kirloskar Oil Engine Proprietary Ltd.. Pune, found that the respondents in all the three cases were having engine parts hearing false trade mark of this company in their possession and were selling the same representing that these parts were manufactured by tile company and thereby they were inducing the purchasers to purchase them. He himself purchased some parts from the respondents. Exper examined them and opined that the parts purchased and seized from the possession of the respondents were spurious and were not manufactured or supplied by tile company. they bore false trade mark of the company. He lodged written complaint at P.S. Station Road Ratlam where offence u/s 420 IPC was registered. During investigation some parts were seized and were sent for examination. After investigation, challans were filed against the respondents which were registered as Cr. Case Nos. 2165/86, 2167/86 and 2166/86. On or about 3.2.1988 the learned C.J.M. framed the charge u/s 420 IPC against the respondents.

3. The complainant Co. engaged private lawyer Shri N.S. Purohit. On his application filed on 21.8.90 he was permitted by the learned C.J.M. vide his order dated 5.10.90 to assist the public prosecutor u/s 302 Cr.P.C. Shri Purohit filed an application u/s 216 Cr.P.C. on 21.8.90 and prayed for framing charges for offence u/s. 78,79 and 88 of Trade and Merchandise Marks Act. 1958 (for short 'the Act'). The respondents opposed the application. The learned C.J.M. rejected the application holding that his predecessors framed charge only u/s 420 IPC against the respondents and impliedly discharged the respondents of the offences under the Act and now framing or charges under the Act would have the effect of reviewing the order passed by his predecessors which was not permissible under Criminal Procedure Code. The complainant tiled these petitions u/s 482 Cr.P.C..

4. Shri Purohit. LC for the complainant, submitted that the learned C.J.M. committed error in dismissing the application and not framing charges under the Act. Charge u/s. 420 IPC has been framed against the respondents stating that they induced the purchasers to purchase the parts of the engine representing them to be the manufacture of complainant Co. Shri Purohit further submitted that the learned C.J.M. committed error in holding that non-framing of charges under the Act had the effect of discharge and he had no jurisdiction to review that order. He submitted that under Section 216 Cr.P.C. charge can be altered or added at any stage of the proceeding. The documents on record copies of which had already been supplied to the respondents clearly prove offences under the Act. Therefore, C.J.M. be directed to frame charges u/s 78, 79 and 88 or the Act. No prejudice would be caused to the respondents as only three prosecution witnesses have been examined till date. On the other hand, Shri Jaisingh, learned counsel for the respondents. supported the impugned order and submitted that after framing of the charge u/s 420 IPC no evidence was recorded or additional material was produced, therefore, additional charge under tile Act cannot be framed. He submitted that framing or charge u/s 420 IPC and non-framing of the charge under the Act has the effect or implied discharge or the offence under the Act and. therefore, the learned C.J.M. was right in rejecting the application, He also submitted that now addition or charge at this belated stage would cause great prejudice to the respondents.

5. I considered the arguments advanced by counsel for both sides and perused the record. In my view, the opinion of the learned Magistrate that non-framing of ch