IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1953 of 2009() ------------------------------ AGAINST THE ORDER DATED 05/05/2009 IN CC No.131 OF 2006 IN CRMP.217/2009 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER: --------------------- KABEER, AGED 50, S/O.MOIDEEN, KANJIRAPARAMBU, MANNAM PO, NORTH PARAVOOR. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/12/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN,J. ----------------------------------- Crl.R.P.No.1953 of 2009 ---------------------------------- Dated this the 7th day of December, 2009 ORDER The revision petitioner is the 1st accused in C.C.No.131 of 2006 on the file of the Chief Judicial Magistrate,Ernakulam. The Sub Inspector of Police, Central Police Station, Ernakulam in Crime No.734 of 2006 filed a report against the revision petitioner and another alleging offence under Section 103 of the Trade Marks Act, Section 63 of the Copy Right Act and 420 read with Section 34 I.P.C. Seeking an order for discharge both accused filed a petition Crl.M.P.No.217 of 2009. The ground urged is that the search and the investigation were conducted by an officer below the rank specified in Section 115(4) of the Trade Marks Act and therefore the prosecution is vitiated. The learned magistrate by order dated 5/5/2009 dismissed the petition. The reasons stated is that offences under Section Copy Right Act and 420 read with Section 34 I.P.C. were also alleged to have been committed. The learned magistrate did not consider as to whether the allegation made by the accused is correct and if so whether the revision petitioner shall be sent for trial for offence under Section 103 of the Trade Marks Act. In the event the Crl.R.P.No.1953 of 2009 2 investigation is by an officer not competent or authorized it is not at all warranted to ask the revision petitioner to face for trial for offence under Section 103 of the Trade Marks Act. The learned magistrate ought to have considered that aspect. In the above circumstance, I find that the matter has to be remitted back to the trial court for considering the above aspect. In the result, this revision petition is allowed. The order impugned is set aside and the matter is remitted back to lower court to consider whether the accused shall undergo trial for offence under Section 103 of the Trade Marks Act or not and then to proceed in accordance with law. P.S.GOPINATHAN, JUDGE skj.