Case: P.D. Lakhani  Vs. State Of Punjab

3. Lakhani Rubber Udyog Ltd. Manufactures Hawai Chappel. They are registered owners of a trademark. Inter alia, on the premise that M/s. Saraswati Utpadan Pvt. Ltd., Respondent No.2 herein had been marketing inferior goods with the label Lakhani illegally, a complaint was lodged by the second appellant herein to SHO, Police Station Jalandhar. He was asked to approach the Senior Superintendent of Police, Jallandhar. On or about 18.1.2005, the second appellant approached the Senior Superintendent of Police, Jallandhar with a written complaint,inferior quality goods bearing the falsified trade mark and as are packed infringing labels/cartons are being sold and offered for sale at various places in Faridabad and the purchasing public is being deceived and cheated by such persons. The Government is also being defrauded by huge revenues on account of the illegal trade activities of such persons.We wish to bring it to your notice that such persons/traders have full knowledge about the legal and vested rights of our company and are not only committing acts of falsification/infringement and are also abetting the infringement of copyright and are committing offence as are cognizable and are punishable under Section 63 of the Copyright Act read with Section 78-79 of the Trade and Merchandise Marks Act, 1958.We further submit that the said unscrupulous persons have in their power and possession dies, the goods to which false trade marks, false trade description has been applied including the material and with logo, which are used for the purpose of falsifying our companys Trade Mark and Logo. The said goods are also offered for sale by the said accused.You are requested to take legal action against the above said parties and oblige.In the body of the said complaint itself, the Senior Superintendent of Police directed one Gian Singh, to comply with the said request of the second appellant and report. When a search was sought to be carried out in the premises of the respondent purported to be on the basis of the said direction, a large number of people objected thereto. They obstructed in the proceeding of search and misbehaved with the raiding party. However, nothing objectionable was found in the factory. A report to the said effect was submitted by the aforementioned Gian Singh, In-charge, Special Cell of the CIA.5. Another report was filed by the Superintendent of Police (Detective) on 8.4.2005 before the Senior Superintendent of Police,inquiry of aforesaid application, it was found that owner of Lakhani Rubber Udyog, 130, Sector 24, Faridabad had submitted an application No.102-Peshi 16/1/2005 concerning duplicate hawai chappal to the SSP. It was forwarded to Gian Singh, Insp. CIA for necessary action Gian Singh Insp. on 19/1/2005 along with employees and Sh. Munish Arora, Adv. Sh.N.D. Arora, Marketing Advisor, Manohar Juneja and Sanjay Sood, Marketing Manager of Lakhani Rubber Udyog Limited, Faridabad, Haryana, reached at the factory of Saraswati Utpadan, at Dogri Road, for checking and made the search of the factory. During this period for the opposition put by the owners of the factory there was little altercation also took place. During search neither anything in the name Lakhani Chappal nor anything of the like appearance was found and also nothing objectionable thing was found. Therefore, the application submitted by the aforesaid Lakhani Rubber Udyog, Faridabad was found to be false after investigation. Due to which the Saraswati Utpadan Pvt. Ltd. had lost its goodwill. Whereas the SHO Adampur is being directed to take action against the aforesaid officer of Lakhani Rubber Ltd. U/s 182 IPC. No misbehave with anybody proved on the part of Gian Singh Insp. He has complied with the orders of the senior officers. No further action is required on the application. It is suggested that the application is consigned to record. Report is submitted.The Station House Officer of the Police Station, Adampur thereafter filed a complaint petition on or about 11.5.2005 before the Chief Judicial Magistrate, inter alia,investigation complaint lodged by Lakhani Rubber Udyog Limited, Faridabad was found false. Due to this, reputation of Saraswati Udyog Private Limited, Ahlwalpur got damage. On this a complaint No.66-PLZ dated 14/2/05 given to Sh. SSP Sahib, bahadur, Jalandhar by M/s. Sarswati Udyog Private Limited. It was investigated by Sh. SP-D Sahib, Jalandhar. After investigation they found that complaint filed by Lakhani Rubber Udyog Limited is a false one and they directed to take necessary action U/s 182 IPC against the accused. Kalendera was prepared in accordance with the order of Sh. SP-D Sahib, Jalandhar (letter No.1086-Reader SP-D/P dated 9.4.05 and P.S. No.512-5E dated 9.4.05) and sent to you for necessary action. The under mentioned witnesses will give evidence against the accused and they should be called through summons and accused should be given proper punishment.Legality and/or validity of the said report was questioned by the appellants herein before the High Court of Punjab and Haryana by filing an application under Section 482 of the Code. By reason of the impugned judgment dated 17.8.2005, the High Court dismissed the said application.

Reasoning:
12. The Station House Officer would have jurisdiction to investigate into the matter provided a first information report was lodged by him in terms of the complaint made by the appellant No.2. Whatever action was taken in the matter was pursuant to the order of the Senior Superintendent of Police Jalandhar. The High Court, in our opinion, thus, committed a manifest error in so far as it held that the as the complaint was addressed to the SHO, he was the appropriate authority to lodge a complaint in respect of an offence punishable under Section 182 of the Indian Penal Code. The fact that the search was made pursuant to the directions issued by the Senior Superintendent of Police, Jalandhar is not in dispute. Section 195 contains a bar on the Magistrate to take cognizance of any offence. When a complaint is not made by the appropriate public servant, the Court will have no jurisdiction in respect thereof. Any trial held pursuant thereto would be wholly without jurisdiction. In a case of this nature, representation, if any, for all intent and purport was made before the Senior Superintendent of Police and not before the Station House Officer.13. No complaint, therefore, could be lodged before the learned Magistrate by the Station House Officer. Even assuming that the same was done under the directions of Senior Superintendent of Police, Jallandhar, Section 195, in no uncertain terms, directs filing of an appropriate complaint petition only by the public servant concerned or his superior officer. It, therefore, cannot be done by an inferior officer. It does not provide for delegation of the function of the public servant concerned. We may notice that in terms of sub-section (3) of Section 340 of the Code, a complaint may be signed by such an officer as the High Court may appoint if the complaint is made by the High Court. But in all other cases, the same is to be done by the presiding officer of the court or by such officer of the court as it may authorize in writing in this behalf. Legislature, thus, wherever thought necessary to empower a court or public servant to delegate his power, made provisions therefor. As the statute does not contemplate delegation of his power by the Senior Superintendent of Police, we cannot assume that there exists such a provision. A power to delegate, when a complete bar is created, must be express; it being not an incidental power.