Anil Kumar vs Shri Anil Sabharwal and another

Surinder Singh, J.—Anil Sabharwal Respondent No. 1 filed a complaint before the Judicial Magistrate First Class, Patiala (C) against Anil Kumar Petitioner and one Jagdish Chand, Proprietor. International Trading Company, Patiala, under Sections 77, 78 and 79 of the Trade and Merchandise Marks Act, and Section 65 of the Copyright Act, with the allegations which are these. The Respondent is a partner of the Firm Peshawar Soap and Chemical Works, also Trading under the name and style of Pashawar Soap Factory, Adalat Bazar, Patiala. The said Firm was carrying on the business of manufacture and sale of soaps. The Firm is a Registered Proprietor of the Trade Mark ''Keshnikhar''. It is also the Registered Proprietor of the Art Work of the label of that soap under the Copyright Act. On account of long and continuous user of the Trade Mark Keshnikhar and the carton, the said Trade Mark and the distinctive carton have achieved a unique reputation. In September (year not mentioned) the complainant came to know that Anil Kumar Petitioner was running a Factory at Kharak Panda. District Jind (Haryana), through which he had started manufacturing and selling soap under the Mark ''Balnikhar''. It was alleged that the carton of the soap of the Petitioner has the same colour, orientation, get-up and size as those of the soap of the complainant ''Keshnikhar''. It was, thus, alleged that the Petitioner had committed an offence under Sections 78 and 79 of the Trade and Merchandise Marks Act In regard to Jagdish Chand accused No. 2, it was alleged in Para 19 of the complaint that he was selling the offending soap in Patiata. The Respondent, therefore, prayed that the two accused be punished under Sections 78 and 79 of the Trade and Merchandise Marks Act and Section 63 of the Copyright Act Copy of the complaint has been annexed with the present petition as Annexure P/4

As per order, dated January 17, 1984 (Copy Annexure P/6), the trial Court after recording the preliminary evidence of the complainant, summoned both the accused, i e, the Petitioner and Jagdish Chand for offences under the aforesaid provisions By means of the present petition u/s 482, Code of Criminal Procedure, the complaint Annexure P/4 and summoning order Annexure P/6 are sought to be quashed. A prayer is also made for the quashing of Search Warrants issued by the Court vide its order, dated August 11, 1984, and the proceedings of the search of the premises of the Petitioner effected on August 13, 1984 in consequences of the said Search Warrants.

When the matter was considered at the Motion stage, the Learned Counsel for the Respondent stated that he did not wish to file any reply to the petition. The arguments in the case have, therefore, been heard at considerable length.

Before the arguments were addressed, the Learned Counsel for the Petitioner was asked to explain as to why Tarsem Chand, Incharge Police Post Tripuri, Tehsil and District Patiala, had been arrayed as a Respondent in this petition. The counsel submitted that a search bad been conducted by the said Officer in the premises of the Petitioner under orders of the trial Court and the said order as also the proceedings of search has been impugned in the present petition. This does not, however, give any cause of action against the said Respondent, who is an unnecessary party in this controverty, especially when no relief is claimed against this Respondent. It is, therefore, ordered that the name of Tarsem Chand Respondent No. 2 be deleted from the roll of Respondents in the present petition.

Mr. Puran Chand, Learned Counsel for the Petitioner has submitted two points during the course of the arguments as formulated below:

(a) the Court of the Special Judge (Judicial Magistrate First Class), Patiala, had no territorial jurisdiction to entertain the complaint Annexure P/4 in so far as the Petitioner is concerned, as the complaint contains no allegation in regard to the commission of any offence by the Petitioner within the jurisdiction of that

(b) in any case, the soap manufactured by the Petitioner and the design on the carton has no similarity with the product of Respondent, No. 1, and hence there was no occasion for summoning the Petitioner under the provisions noticed above.

Adverting to the matter under point (a) above, the Learned Counsel for the Petitioner took me through the contents of the complaint Annexure P/4. As already noticed, the allegation in Para 12 of the complaint is to the effect that the complainant learnt in the month of September that the Petitioner was running his Factory at Kharak Panda, District Jind (Haryana) and was himself residing at Village Kalyat, District Jind. The Petitioner, it is allaged, had started manufacturing and selling, soap under the Mark ''(sic) which soap and its carton are stated to be of the same colour, orientation, size etc. as those of the complainant''s scap. It is material to note that the specific allegation against the Petitioner is that he is man-factoring soap at his Factory situated within District Jind in the State of Haryana. As regards the allegation, of selling the soap, there is absolutely no mention that the Petitioner was selling the soap at any particular place, much less at a place within the juris-diction of the Patiala Court. In Para 13 of the complaint, this alleged that the second accused Jagdish Chand, a stockist of the offending soap was selling and exposing it for sale. Here again, there is no allegation that the said accused is either an authorised Agent, Dealer or even Stockist of the Petitioner. There is thus, no nexus whatsoever between the alleged conduct of the Petitioner in manufacturing the soap and that of accused No. 7 in selling the soap at Patiala. In this state of affairs, the trial Court ought to have considered as to whether there was prima facie evidence to shown at the Petitioner had himself sold the alleged offending soap within the jurisdiction of that Court. This was, however, not done. On the other hand, the trial Court proceeded straightway to summon the Petitioner and his co-accused for the various offences as mentioned in the complaint.

The Learned Counsel for the Petitioner has referred to the previsions of Section 177, Code of Criminal Procedure, which prescribes that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. In the present case, even if the allegations contained in the complaint are taken to be prima facie correct, the Petitioner is only manufacturing soap at his Factory in Village Kharak Panda, District Jind (Haryana). Such manufacture does not, therefore, tantamount to the commission of an offence within the local jurisdiction of the Court at Patiala. As regards the allegation of sale of this soap, as already noticed, the same is only against the other accused who is not even stated to be an authorised Agent or Stockist of the Petitioner. The Learned Counsel for the Petitioner has placed reliance upon various authorities in support of his above contention. In Bijoyanand Patnaik Vs. Mrs. K.A.A. Brinnand, , it was held that in a case u/s 406. Indian Penal Code, where neither entrustment nor conversion has taken place within the territorial jurisdiction of the Court where the complaint is lodged, the Court has no jurisdiction to proceed with the complaint Similarly, in State Vs. Dhulaji Bavaji, , a Division Bench held that a Magistrate has no power, by virtue of Section 177 of the Code of Criminal Procedure, to try an accused for an offence committed wholly outside the limits of his jurisdiction. In a case decided by this Court as reported in Sukhdev Singh etc, v. Sukhvinder Kaur 1973 Cur. L. J. 797, it was held that in a trial of an offence initiated by a Magistrate having no territorial jurisdiction if an objection is taken by the accused at the earliest opportunity, the curative provision of Section 531, Code of Criminal Procedure, could not be invoked The High Court accepted the recommendation made by the Additional Sessions Judge in this behalf and quashed the order passed by the Magistrate summoning the accused. The Learned Counsel has cited some other authorities, but it is neediest to multiply the same.

As against the above contention, Mr. Ujagar Singh, Learned Counsel for the Respondent has tried to wriggle out of the stringent provisions of Section 177 of the Code by attempting to bring the present case within the purview of Sections 178 and 180 of the Code of Criminal Procedure. It is submitted that the offence in the present case consists of the act of manufacture in the State of Haryana and the sale of the offending soap at Patiala and in view of Sub-section (d) of Section 178 of the Code, any of the Courts having jurisdiction over the two local areas could try the case. The argument is devoid of force. There is no nexus between the alleged act of manufacture and the act of sale of the soap, more so when according to the allegation in the complaint the two acts are being performed by different persons not connected with each other in any way. Similarly the argument that in case there is an uncertainty in regard to the area where the offence is committed, the same could be tried in any of the local areas concerned is also fallacious. There is certainly no uncertainty about this matter. Section 178 of the Code of Criminal Procedure has, thus, no application to the present case at all. The other provision, namely, Section 186 of the Code merely provides that when an act is an offence by reason of its relation to any otter act which is also an offence or which would be an offence, the first-mentioned offense-may be inquired into or tried by a Court within whose local jurisdiction either act was done. As already observed, there is no co-relation between the two alleged offences in the present case. On the other hand, both the acts of manufacture and the sale are quite independent of each other. There is, thus, no occasion to invoke the provisions of Section 180, Code of Criminal Procedure. 9. In view of the finding on point (a) above, it is, neither desirable nor even appropriate to record any finding on point (b) which touches upon the merits of the case.

In the ultimate analysis, it is apparent that even if the allegations contained in the complaint are taken to be true, there was neither any justification nor cause to summon the Petitioner to face any charge in the Patiala Court. The complaint fled by the Respondent in so far as it pertains to the Petitioner (Copy Annexure F/4) and the order, dated January 17, 1984 of the trial Court, summoning the Petitioner are, therefore, quashed, as the order has been passed by a Court having no territorial jurisdiction in the matter This will, how ever, be without prejudice to the right of the complainant-Respondent to file a complaint in the Court having jurisdiction.

In regard to the prayer for the quashing of the order, dated August 11, 1984 passed by the trial Court, issuing Search Warrants u/s 93, Code of Criminal Procedure (Copy Annexure P/2) and in subsequent proceedings of Search (Copy Annexure P/1), there are fair accompli and there is no question of quashing the same. The petitions can, however, seek his remedy in regard to the articles taken into custody as a result of the search, in accordance with law as advised. The present petition is disposed of accordingly.