Habib vs State of M.P. and Others

Shambhoo Singh, J.

This order shall govern the disposal of MCRC No. 2135/90 arising out of Cr. case No. 2165/86. MCRC No. 2136/90 arising out of Cr. Case No. 2167/86 & MCRC No. 2137/90 arising out of Cr. Case No. 2166/86 pending in the Court of CI. M. Ratlam as common question of law and facts are involved.

The prosecution case is that Habib. the supervisor of Kirloskar Oil Engine Proprietory Ltd., Pune, found that the Respondents in all the three cases, were having engine parts bearing false trade mark of this company in their possession and were selling the same representing that these parts were manufactured by the company and thereby they were inducing the purchasers to purchase them. He himself purchased some parts from the Respondents. Expert examined them and opined that the parts purchased and seized from the possession of the Respondents were spurious and were not manufactured or supplied by the company, they bore false trade mark of the company. He lodged written complaint at P.S. Station Road Ratlam where offence u/s 420 IPC was registered. During investigation some parts were seized and were sent for examination. After investigation, challans were filed against the Respondents which were registered as Cr. Case Nos. 2165/86, 2167/86 and 2166/86. On or about 3.2.1988 the learned C.J.M. framed the charge u/s 420 IPC against the Respondents.

The complainant Co. engaged private lawyer Shri N.S. Purohit. On his application filed on 21.8.90 he was permitted by the learned C.J.M. vide his order dated 5.10.90 to assist the public prosecutor u/s 302 Code of Criminal Procedure Shri Purohit filed an application u/s 216 Code of Criminal Procedure on 21.8.90 and prayed for framing charges for offence u/s 78, 79 and 88 of Trade and Merchandise Marks Act, 1958 (for short ''the Act''). The Respondents opposed the application. The learned C.J.M. rejected the application holding that his predecessors framed charge only u/s 420 IPC against the Respondents and impliedly discharged the Respondents of the offences under the Act and now framing of charges under the Act would have the effect of reviewing the order passed by his predecessors which was not permissible under Code of Criminal Procedure. The complainant filed these petitions u/s 482 Code of Criminal Procedure

Shri Purohit. I.C. for the complainant, submitted that the learned C.J.M. committed error in dismissing the application and not framing charges under the Act. Charge u/s 420 IPC has been framed against the Respondents stating that they induced the purchasers to purchase the parts of the engine representing them to be the manufacture of complainant Co. Shri Purohit further submitted that the learned C.J.M. committed error in holding that non-framing of charges under the Act had the effect of discharge and he had no jurisdiction to review that order. He submitted that u/s 216 Code of Criminal Procedure charge can be altered or added at any stage of the proceeding. The documents on record copies of which had already been supplied to the Respondents clearly prove offences under the Act. Therefore. C.J.M. be directed to frame charges u/s 78, 79 and 88 of the Act. No prejudice would be caused to the Respondents as only three prosecution witnesses have been examined till date. On the other hand. Shri Jaisingh. learned Counsel for the Respondents supported the impugned order and submitted that after framing of the charge u/s 420 IPC no evidence was recorded or additional material was produced, therefore, additional charge under the Act cannot be framed. He submitted that framing of charge u/s 420 IPC and non-framing of the charge under the Act has the effect of implied discharge of the offence under the Act and, therefore, the learned C.J.M. was right in rejecting the application. He also submitted that now addition of charge at this belated stage would cause great prejudice to the Respondents.

I considered the arguments advanced by counsel for both sides and perused the record.

In my view the opinion of the learned Magistrate that non-framing of charge under the Act amounted discharge of the Respondents of the offences under the Act and there was no provision for review in the Code of Criminal Procedure, therefore, no charge under the Act could be framed, unless some material was brought on record, is not acceptable . The perusal of record shows that offence u/s 420 was registered by the police on the written complaint of Habib and in challan also Section 420 IPC was mentioned. The learned C.J.M. on the basis of this, framed charge only u/s 420 IPC. It appears that his attention was not drawn to the written report and the report of the examination of engine parts seized from the shops of Respondents and from Habib which were allegedly sold to him representing them to be manufacture of the company. The learned CJM did not find that no offence under the Act was made out. In my opinion under such circumstances, non-framing of charge under the Act does not amount discharge of the offences under the Act. Section 216 Code of Criminal Procedure gives ample power to the Magistrate to alter or add any charge at any time before the judgment is pronounced. Addition of charge in exercise of power u/s 216 Code of Criminal Procedure does not amount reviewing of earlier order. In this case, no prejudice would be caused to the Respondents if new charges are added as the trial is at the initial stage and only three witnesses have been examined till date and they did not support the prosecution case. Copies of the documents including MR lodged by Habib and the examination report of the expert of the seized engine parts have already been supplied to the Respondents. Necessary safeguards provided in Section 217 to avoid any prejudice being caused to the accused by reason of the alteration or addition shall be observed.

The arguments of Shri Jaisingh, learned Counsel for Respondents No. 2 to 4 that the petitions are not maintainable as the impugned order could not be challenged u/s 482 Code of Criminal Procedure is also not acceptable. There is no bar in Heating these petitions filed u/s 397 of the Code of Criminal Procedure This Court can call for and examine the record of any proceeding of the lower Court for examining the correctness, legality or propriety of any order. Procedural law is designed to subserve the ends of justice and not to frustrate it. The learned C.J.M. had jurisdiction to add new charge, he failed to exercise his jurisdiction u/s 216 Code of Criminal Procedure and thereby committed illegality and grave error in passing the impugned order.

In view of above, the impugned orders deserve to be set-aside and they are hereby set-aside and it is directed that the learned C.J.M. shall hear both the parties and would frame charge/charges under the Act, if prima facie case was made out without being influenced by the observations made by this Court in this order. If new charges are framed the learned CJM shall give opportunity to Respondents to summon the witnesses already examined for further cross-examination, if they desired.

The parties shall appear before CJM on 3.4.2000. All the petitions stand disposed of as indicated above. Record of the Lower Court be transmitted immediately to the trial Court. In MCRC No. 2135/90 Respondent No. 6 has died during the pendency of this petition. His name be deleted from the array.