minal Appeal No 118 of 1958
Appeal from the judgment and order dated May 14 1958 of the Allahabad High Court in Criminal Revision No 1594 of 1956 arising out of the judgment and order of the Court of Additional Sessions Judge at Kanpur in Criminal Revision No 13 of 1956
C P Lal for the appellant
640 Gopi Nath Dikshit for the respondent
November 24
The Judgment of the Court was delivered by VENKATARAMA AIYAR J
The facts leading up to this appeal are these On April 26 1954 the appellant was arrested by the Sisamau Police for offences under sections 420 482483 485 and 486 of the Indian Penal Code on the allegation that he was in possession of 25 packets of Chand Chhap Biri which were alleged to bear counterfeit trade marks
On May 26 1954 one Harish Chandra Jain acting on behalf of Messrs Mohan Lal Hargovind Das filed a complaint charging that the appellant was in possession of counterfeit bidis wrappers and labels and praying that a case under the sections above mentioned be registered and investigated
On that the Magistrate passed the following order   section O Sisamau
Please investigate and register a case
 After investigation the police submitted their chargesheet on September 30 1954 and summons was ordered to the appellant on July 22 1955
On September 17 1955 the appellant filed an application before the Magistrate wherein he raised a preliminary objection that the proceedings were barred by section 15 of the 4 of 1889 hereinafter referred to as the Act
That section provides   No such prosecution as is mentioned in the last foregoing section shall be commenced after the expiration of three years next after the commission of the offence or one year after the first discovery thereof by the prosecutor whichever expiration first happens
 The contention of the appellant was that the offence was discovered on April 26 1954 when he was arrested and the goods seized and that in consequence the issue of process on July 22 1955 was beyond the period of one year provided under section 15 of the Act and that the proceedings should therefore be quashed as barred by limitation
The Magistrate rejected this contention and a Revision Petition preferred against this order to the Additional Sessions Judge Kanpur 641 shared the same fate
The appellant then filed a further Revision Petition to the High Court of Allahabad being Criminal Revision No 1594 of 1956 and the same was heard along with other similar Revision Petitions by a Bench consisting of James and Takru JJ
By their judgment dated May 13 1958 the learned Judges held that the prosecution commenced when the complaint was presented on May 26 1954 and that as the discovery was on April 26 1954 the proceedings were within time under section 15 of the Act
In view of the importance of the question raised they granted leave to appeal to this Court under article 134 1c of the Constitution and that is how the matter comes before us
The point for decision is when does a prosecution commence for purposes of section 15 of the Act whether on the date when the complaint is preferred or when the process is issued thereon The word prosecution  is not defined in the Act nor are there any provisions therein bearing on this question
Now under the law and apart from statutory prescriptions a prosecution commences where it is at the instance of a private prosecutor when the complaint is preferred
The position is thus stated in Halsbury s Laws of England Vol
X 3rd Edn p 340 para
630  Criminal prosecutions except where there are statutory provisions to the contrary may be commenced at any time after the commission of the offence
A prosecution is commenced when an information is laid before a justice or if there is no information when the accused is brought before a justice to answer the charge or if there is no preliminary examination before a justice when an indictment is preferred
 It is further stated there that different statutes provide for various periods of limitation within which a prose cution could be commenced after the commission of the offence and that three years is the period provided for an offence under the Merchandise Marks Act 1887 which corresponds to the 
It is therefore settled law that unless 642 there is something to the contrary in the statute when a private complaint is presented it is the date of pre sentation thereof that marks the commencement of the prosecution
Now what is the nature of the prosecution under section 15 of the Act  It is relevant in this connection to refer to sections 13 and 14 which run as follows section 13 In the case of goods brought into India  by sea evidence of the port of shipment shall in a prosecution for an offence against this Act or section 18 of the  as amended by this Act be prima facie evidence of the place or country in which the goods were made or produced
 section 141  On any such prosecution as is mentioned in the last foregoing section or on any prosecution for an offence against any of the sections of the Indian Penal Code as amended by this Act which relate to trade property and other marks the Court may order costs to be paid to the defendant by the prosecutor or to the prosecutor by the defendant having regard to the information given by and the conduct of the defendant and prosecutor respectively
2 Such costs shall on application to the Court be recoverable as if they were fine
 The object of the above provisions is to protect the rights of persons who manufacture and sell goods with distinct trade marks against invasion by other persons passing off their goods fraudulently and with counterfeit trade marks as those of the manufacturers
Normally the remedy for such infringement will be by action in Civil Courts
But in view of the delay which is incidental to civil proceedings and the great injustice which might result if the rights of manufacturers are not promptly protected the law gives them the right to take the matter before the Criminal Courts and prosecute the offenders so as to enable them effectively and speedily to vindicate their rights
It is for this reason that a short period of limitation is provided heir preferring a complaint under a 15 of the and there is also a special provision for award of costs of the proceedings to or by the complainant
in Ruppell vs Ponnuswami Tewan 1 the question rose whether a prosecution launched by the complainant in 1898 in respect of goods sold and marked with what was alleged to be a counterfeit trade mark in 1893 was in time
In deciding that it was a barred under section 15 of the Act the Court observed as follows Section 15 of the Merchandise Mark Act IV of 1889 enacts that no prosecution such as the present shall be commenced after the expiration of one year after the first discovery of the offence by the prosecutor
The reason for this limitation is clear
Ordinarily the infringement of a trade
mark is rather a civil than a criminal wrong but as civil proceedings may require much time and expenditure to bring them to a conclusion the Legislature in its anxiety to protect traders has allowed resort to the criminal courts to provide a speedy remedy in cases where the aggrieved party is diligent and does not by his conduct show that the case
is not one of urgency
if therefore the person aggrieved fails to resort to the criminal courts within a year of the offence coming to his knowledge the law assumes that the case is not one of urgency and it leaves him to his civil remedy by an action for injunction
 It will be noticed that the complainant is required to resort to the Court within one year of the discovery of the offence if he is to have the benefit of proceeding under the Act
That means that if the complaint is presented within one year of such discovery the requirements of section 15 are satisfied
The period of limitation it should be remembered is intended to operate against the complainant and to ensure  diligence on his part in prosecuting his rights and not against the Court
Now it will defeat the object of the enactment and de Drive traders of the protection which the law intended to give them if we were to hold that unless process is issued on their complaint within one year of the discovery of the offence it should be thrown out
It will be an unfortunate state of the law if the trader whose rights had been infringed and who takes lip the matter promptly before the Criminal 1 Mad 488
644 Court is nevertheless denied redress owing to the delay in the issue of process which occurs in Court
The appellant relies on certain decisions as showing that
the prosecution must be held to commence only when process is issued and not when complaint is filed
In Sheik Meeran Sahib vs Ratnavelu Mudali 1 De Rozario vs Gulab Chand Anundjee 2 and Golap Jan vs Bholanath Khettry 3 cited by the appellant the question was whether an action for damages for malicious prosecution would lie when the complaint was dismissed without notice to the plaintiff
It was held that the plaintiff could not be held to have been prosecuted unless process was issued to him and that where the complaint was dismissed without such process being issued there was no prosecution and no action for damages in respect of such prosecution would lie
These decisions have no bearing on the present question
In suits for damages for malicious prosecution one of the points to be decided is whether the plaintiff was in fact prosecuted and if he was no question arises as to when the prosecution commenced
On the other hand the point for decision in a prosecution under the Act is not whether there was a prosecution but when it was instituted  and a question as to whether there was prosecution or not would be wholly foreign to it
Indeed in an action for damages for malicious prosecution when it is held that there was prosecution that could properly be held to have commenced when the complaint was filed and not when the process was issued
Vide the observations of Woodroffe J in the course of the argument in Golap Jan vs Bholanath Khettry 3 at p 884
The decisions in Sheik Meeran Sahib vs Ratnavelu Mudali 1 De Rozario vs Gulab Chand Anundjee 2 and Golap Jan vs Bholanath Khettry 3 therefore do not throw any light on the matter now under consideration
It may be that these decisions may have to be reconsidered in the light of the recent decision of the Privy Council in Mohamed Amin vs Jogendra Kumar Bannerjee 4 wherein it was observed 1 Mad
181 2 Cal
3 Cal
4  331 645  The test is not whether the criminal proceedings have reached a stage at which they may be described as a prosecution the test is whether such proceedings have reached a stage at which damage to the plaintiff results
 Vide also Ramaswami Iyer on The Law of Torts 4th Edn p 318
The decision in R R Chari vs The State of Uttar Pradesh 1 was relied on by the appellant as showing that until process was issued there was no prosecution
There the appellant was proceeded against under the provisions
of the Prevention of Corruption Act No 2 of 1947
The Deputy Magistrate Kanpur issued a warrant for his arrest on October 22 1947
Thereafter on December 6 1948 the prosecution obtained the necessary sanction under the Act
The contention of the appellant was that the prosecution must be held to have been instituted against him on October 22 1947 when he was arrested that as no sanction for his prosecution had been obtained at that time the proceedings were bad and that the defect was not cured by sanction being obtained subsequently on December 6 1948
This Court held that under the special provisions of the Prevention of Corruption Act the police had the power to arrest the appellant pending investigation and that was all the effect of the order of the Deputy Magistrate dated October 22 1947 and that therefore there was no prosecution on the date of the arrest
But here we are dealing with a private complaint and as pointed out at p 315 of the Report section 1901a of the Criminal Procedure Code would apply to such cases and the Magistrate must be held to have taken cognizance when the complaint was received
This decision in our opinion does not assist the appellant nor does the decision in Gopal Marwari vs King Emperor 2
There considering sections 200 and 202 of the Criminal Procedure Code the learned Judges observed that there was a distinction between initiation of proceedings before the Magistrate and his taking cognizance of the same
It is Sufficient to say that that is not 1  2 Pat 433 646 the question which we have got to decide here and on the language of section 15 of the Act which is what we are concerned with in this appeal all that is required is that a private prosecutor  should prefer this complaint within one year of the discovery of the offence  and if that is done  the bar under that section cannot apply
We agree with the decision of the learned Judges of the Court
below that the proceedings are not barred by section 15 of the Act
This appeal is accordingly dismissed
Appeal dismissed


Summary:
The appellants and Writ Petitioners are serving the Time Keeping Department of the Naval Dockyard Bombay under the control of the Western Naval Command
With a view to removing the stagnation in the cadre of Time Keepers for lack of promotion avenues the Government of India Ministry of Defence by its letter dated 1491966 addressed to the Chief Naval Staff conveyed the sanction of the President to the merger of the Time Keepers Cadre with the Clerical Cadre in all Naval establishments
Consequent to this merger the Jr Time Keepers were to be re designated as Lower Division Clerks and Sr
Time Keepers as Upper Division Clerks
A few days thereafter the office of the Rear Admiral Western Naval Command issued a letter dated 5121966 which reads as under        2
This merger is intended only to give promotion to the Time Keepers along with the LDCUDC
Their duties terms and conditions 220 of Services will remain the same and their hours of work will also continue to be 45 in a week
Consequent upon the issue of this order and in order to distinguish them from the UDCLDC and UDCsLDCs the suffix T will be added after their designation
As per their conditions of service the employees serving in the Time keeping Department were entitled to the benefit of over time and productivity linked bonus but those belonging to the clerical cadre working in the Administrative Offices of the Dockyard were not entitled to these benefits
One Thoppil Ramakrishnan on being transferred in August 1980 as UDCT in the Spare Parts Distribution Centre challenged his transfer by a Writ Petition in the High Court of Bombay wherein he contended that as he was initially appointed Jr Time Keeper and promoted as UDCT in 1967 he belonged to a special cadre and could not be transferred to the general cadre as that would entail loss of benefit of over time and bonus
The High Court treating the letter dated 5th December 1966 as merely clarificatory held that there was no complete merger of the two cadres and on the statement of the counsel for the petitioner that the petitioner will not claim the benefit of promotion in the clerical cadre allowed the writ petition quashing the transfer order
Realising the situation created by its letter of 5th December 1966 the western Naval Command cancelled the said letter and consequently inter se transfer became possible
Thereafter some employees in the Time Keeping Department were transfered by orders dated 1741985 and 5101985
The affected employees filed a Writ Petitions in the High Court which were later transfered to the Central Administrative Tribunal
The Tribunal came to the conclusion that after the cancellation of the Order dated 5121966 the field was held by the Presidential Order dated 1491966 that under the merger Scheme envisaged by the said order the employees in the Time Keeping Department no longer belonged to a separate Cadre and as such the Authorities were entitled to transfer them to other ministerial branches
The Petitions were accordingly dismissed by a common judgment dated 9th October 1989
This judgment is assailed by the concerned employees in the appeals before this court
One Writ Petition has also been filed by some other 221 employees apprehending similar transfers
Allowing the appeals partly insofar as they relate to five employees who belonged to the separate cadre of the Time Keeping Department at the date of issuance of the Presidential Order and dismissing the same in respect of the remaining appellants and also dismissing the Writ Petition this Court HELD The letter of 14th September 1966 clearly refers to the Presidential sanction to the merger of the cadre of Time Keepers with the clerical cadre in all Naval establishments
Consequent on this merger the Junior Time Keepers were to be redesignated as Lower Division Clerks and the Senior Time Keepers as Upper Division Clerks
There is nothing in this letter to convey that they were to retain their identity as Time Keepers227E The subsequent order of 5th December 1966 issued by the Western Naval Command could not alter this Presidential Order
If that subsequent order was found to be inconsistent with the Presidential Order it had to ignored for the simple reason that the Officers of the Naval establishment were not competent to alter very or modify a Presidential Order
228B It is difficult to understand how those who entered the Time Keeping Department after the merger order can refuse to go on transfer on the plea that they would suffer a financial loss
They can have no right to the post in the Time Keeping Department
So long as they are there and are discharging the functions of the Time Keeper they would be entitled to the special benefit of over time and bonus but on that plea they cannot contend that they are not transferable to the ministerial posts
We have therefore no hesitation in concludingthat those who joined the Time Keeping Department after the Presidential Order became effective have no right to continue in that department merely because their transfer would entail economic loss since they are governed by the merger scheme which had become operative before their entry in that department
They were borne on the common cadre and were never members of the original Time Keepers Cadre
229G 230B So far as those Time Keepers who were serving in the Time Keeping Department on and before the date of implementation of the Presidential Order and who continue to serve in the same department are concerned the department should give them an option if they are proposed to be transferred outside that department or the depart 222 ment should undertake to make good the economic loss which they are likely to suffer on transfer
230F G The State of Kerala vs MK Krishnan Nair  Ors  referred to