Crl. Misc. No.M-23090 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-23090 of 2009 Date of Decision: 11.10.2010 Satpal and another ....Petitioners Versus State of Punjab & others ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. G.S. Sandhawalia, Advocate for the petitioners. Mr. K.S. Pannu, D.A.G., Punjab for the respondent-State. Mr. R.S. Bandhel, Advocate for respondent No.3. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition under Section 482 Cr.P.C for quashing of FIR No.29 dated 17.02.2009 registered at Police Station Salem Tabri, Ludhiana under Sections 51, 52, 63 and 64 of the Copyright Act, 1957 read with Section 420 IPC and all subsequent proceedings arising therefrom. Brief facts of the case are that respondent No.3, complainant Chamkaur Singh was the employer of petitioner No.1 who was working under him as Manager for five years from the year 2001 to 2006. Petitioner no.2 was also working as his Distributor and therefore, both the petitioners are known to each other. Respondent no.3 was running an Ayurvedic Centre and manufacturing Ayurvedic drugs under License No.573-AY-PB Crl. Misc. No.M-23090 of 2009 2 issued under the Drugs & Cosmetics Act, 1940 by the Ayurvedic Department of the Government of Punjab. It was contended by learned counsel for the petitioners that petitioner No.1 left the employment of respondent No.3 in 2006. Thereafter, he joined Chander Shekhar to set up similar manufacturing of Ayurvedic medicines under license in village and Post Office Kuthar Kalan, District Una under the name and title of M/s Ayushkti Pharma. The said firm applied on 29.12.2007 to the Department of Industries for setting up industry at a cost of ` 15 lacs for manufacturing of Ayurvedic medicines like Churan, Chavanprash, Khamira and Ayurvedic oils etc along with No Objection of the Gram Panchayat of the said village. Permission was granted from the Himachal State Pollution Control Board, Una on 08.01.2008 for setting up the said industrial unit and the Director Ayurveda, Department of Indian System of Medicines and Homeopathy, Himachal Pradesh also started processing the application of M/s Ayushakti Pharma. A certificate of registration was also issued to M/s Ayushakti Pharma on 09.01.2008. This setting up of M/s Ayushakti Pharma, which was in a different state altogether, was not liked by respondent No.3 who had been trying to convince petitioner No.1 to come back to his job as a Manager and on coming to know that the unit was likely to start production, threatened petitioner No.1 that he would get him implicated in a false case. Similarly, petitioner No.2 had also stopped working with the complainant and was in touch with petitioner No.1 who wanted to utilize his services as a Distributor and thus, the complainant was also aggrieved against him as well. While praying for quashing of FIR, learned counsel for the petitioners raised his first argument that a plain reading of the FIR would show that no offence is made out under the Copyright Act, 1957 as the object and reasons of the Copyright Act provide that the Act is applicable to Crl. Misc. No.M-23090 of 2009 3 work of art which can be dramatic in nature or literary musical or work of Architecture, painting or sculpture etc. Learned counsel for respondent No.3 did not dispute the fact and rather admitted that the offence did not fall under the Copyright Act, 1957. Thus, it is evident that the Copyright Act, 1957 is not applicable to the manufacture of any Ayurvedic medicines and the provisions of said Act had been wrongly invoked. The Act not being applicable, no offence is made out under the Copyright Act, 1957. FIR is also registered under the Trademark Act. Section 115 of the Trademarks Act, 1999 is reproduced below :- “115. Cognizance of certain offences and the powers of police officer for search and seizure:- (1) No court shall take cognizance of an offence under Section 107 or Section 108 or Section 109 except on complaint in writing made by the Registrar or any officer authorized by him in writing. Provided that in relation to clause (c) of sub- section (1) of Section 107, a Court shall take cognizance of an offence on the basis of a certificate issued by the Registrar in respect of any goods or services in respect of which it is not in fact registered. (2)No court inferior to that of Metropolitan Magistrate or Judicial Magistrate of the first class shall try an offence under this Act. (3)The offences under Section 103 or Section 104 or Section 105 shall be cognizable. (4)Any police officer not below the rank of Deputy Superintendent of Police or equivalent, may if he is satisfied that any of the offences referred to in sub- section (3) has been, is being, or is likely to be, committed, search and seize without warrant of goods, die, block, machine, plate, other instruments or things involved in committing the offence, wherever found, and all the articles so seized shall, as soon as practicable, be produced before a Judicial Magistrate Crl. Misc. No.M-23090 of 2009 4 of the first class or Metropolitan Magistrate, as the case may be; Provided that the police officer, before making any search and seizure, shall obtain the opinion of the Registrar on facts involved in the offence relating to trademark and shall abide by the opinion so obtained. (5) Any person having any interest in any article seized under sub-section (4), may, within fifteen days of such seizure, make an application to the Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be, for such article being restored to him and the Magistrate, after hearing the applicant and the prosecution, shall make such order on the application as he may deem fit.” As per sub-clause (4) of Section 115 of the Trademarks Act, 1999, no police officer below the rank of Deputy Superintendent of Police can search and seize for goods regarding offence under Sections 103, 104 and 105. Secondly, as per the proviso, the said police officer will have to obtain opinion of the Registrar on facts involved in the offence relating to Trademarks Act, 1999 and shall abide by the opinion before such search and seizure is carried out, whereas, in the present case, admittedly the search and seizure had been done by the Sub Inspector without taking any opinion from the Registrar. The proceedings are, therefore, vitiated. The word “shall” in the proviso is indication of the fact that the provision is indeed mandatory. Moreover, the said offences could have only been investigated by the Officer not below the rank of Deputy Superintendent of Police. Learned counsel for the respondent-State, however, tried to justify the same on the ground that subsequently the approval of Deputy Superintendent of Police was obtained. The patent illegality cannot be rectified by a subsequent approval. No provision has been brought to the notice of this Court which may allow the Deputy Superintendent of Police to Crl. Misc. No.M-23090 of 2009 5 delegate the said power. Thus, the said argument carries no merit. Learned counsel for the petitioners has relied on the judgment of Hon'ble the Apex Court rendered in the case of R.P. Kapur vs. State of Punjab reported as AIR 1960 SC 866 to state that the present case fell in one of the categories of cases summarized, where the inherent power can be exercised. “6. Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court under S. 561-A of the Code. The said section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the magistrate before whom the police report has been filed under S. 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction Crl. Misc. No.M-23090 of 2009 6 can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the Crl. Misc. No.M-23090 of 2009 7 accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point.” Thus, there being a legal bar, the proceedings are liable to be quashed. In the case of Baijnath Jha vs. Sita Ram and another reported as 2008(8) SCC 77, Hon'ble the Supreme Court while relying on the judgment of R.P. Kapur (supra), as well as, the case of State of Haryana vs. Bhajan Lal reported as 1992 Supp(1) SCC 335 quashed the proceedings after arriving at the conclusion that the proceedings instituted were mala fide, based on vague assertions and were initiated with mala fide intents and constitute sheet abuse of process of law. Thus, even in the earlier judgment of R.P. Kapur (supra) and thereafter, in the case of State of Haryana (supra), two of the various categories of cases, in which, the power under Section 482 Cr.P.C. should be exercised, are as under :- (i) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. Crl. Misc. No.M-23090 of 2009 8 (ii)Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” Therefore, applying the test in the facts of the present case, the same falls in both of the above categories. Admittedly, the present case does not fall under the Copyright Act, 1957. The proceedings are, therefore, patently illegal. The mandatory provisions of the Trademark Act, 1999 while registering the FIR have not been complied with resulting in legal bar to the registration of the FIR. When statutes, which create an offence provide for a procedure, the courts or the authorities cannot ignore the same. Faced with the above situation, learned counsel for the respondent submitted that since Section 420 IPC had also been incorporated in the FIR, the same could not be quashed on the ground that the provisions of said Act were not complied with. Learned counsel for the petitioner, on the other hand, raised a specific plea that respondent No.3 was upset with the fact that the petitioner had left the job and started his own manufacturing company. Accordingly, initiating the present proceedings, which are a patent misuse of process of law to settle business scores and result of business rivalry fall under the above category as laid down in the case of R.P. Kapur (supra) and therefore, deserves to be quashed. Section 420 IPC reads as under :- “420. Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceived any property to any person, or to make, alter or destroy the whole or any part of a valuable Crl. Misc. No.M-23090 of 2009 9 security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” There is no complaint from any person or consumer that they have been cheated by the purchase of any such drugs. The allegations are covered under the Trademarks Act, 1999. Thus, the offence, if at all, under the said Act cannot be given the colour of cheating by adding Section 420 IPC. In view of the above, the present petition is allowed and the FIR No.29 dated 17.02.2009 registered at Police Station Salem Tabri, Ludhiana under Sections 51, 52, 63 and 64 of the Copyright Act, 1957 read with Section 420 IPC and all subsequent proceedings arising therefrom are, hereby, quashed. (NIRMALJIT KAUR) 11.10.2010 JUDGE gurpreet