Safdar Hussain and Others vs S.K. Abdul Rahim

(1) These are related criminal revision proceedings involving the same question of law. In all of them, the concerned revision petitioners were

respective accused in prosecutions under S. 78(c) of the Trade and Merchandise Marks Act 43 of 1958. I may here state, purely for the purpose

of setting forth the background of the facts, that S. 78(c) relates to the making, disposal or possession of any instrument for the purpose of

falsification of a trade mark. The broad allegation was that, with respect to the Tajmahal trade mark beedies, the concerned revision petitioners

were found in possession of counterfoil blocks and other articles which would bring them within the mischief of the offence defined in S. 78(c).

(2) It appears that, originally the police of Tiruchirapalli registered a case under SS. 420 and 120-B I. P. C. against the revision petitioners, and

conducted investigation into that case. A charge sheet under those sections of the Penal Code was ultimately filed, and we are not now concerned

with the subsequent facts of those prosecutions. During the course of that investigation, the police also found that the revision petitioners had

committed an offence punishable under S. 78(c) of the Trade and Merchandise Marks Act. They made separate reports or complaints in respect

of this non-cognisable offence, before the Addl. First Class Magistrate, Tiruchirapalli. With regard to these prosecutors under S. 78(c), the learned

Magistrate before whom they were pending discharged the accused(revision petitioners) under S. 251-A(2) Crl. P. C. purely on the ground that

the police had no power to investigate into such a non-cognisable offence, and, hence, that the prosecution itself was bad in law.

(3) The matter came up in revision before the learned District Magistrate(J) of Tiruchirapalli, and the learned Magistrate took the view that, even in

respect of a non-cognisable offence, the police could properly file a charge sheet or report, which would then be treated as a complaint, and dealt

with according to law; this was on the authority of Public Prosecutor v. Munuswami Naidu, 1942 Mad WN Cri 56. The learned District

Magistrate(J) also pointed out that a defect or illegality in the investigation, even if it be conceded had no direct bearing on the competence of the

trial, or the procedure at trial. He set aside the order of discharge, and remitted the prosecutions for disposal according to law.

(4) There is some reference, I find, in the order of the learned District Magistrate, to some earlier F. I. R. filed at Kumbakonam, in these same

cases, under S. 486 I. P. C. It is very difficult to see what that has do with the matter now in controversy and it is unnecessary to refer to it further.

The argument of learned counsel for revision petitioners can be put in this very simple form. The offence, punishable u/s 78(c) of the Special Act is,

undoubtedly a non-cognisable offence. In respect of such an offence, there cannot be any charge-sheet by the police. The police themselves

cannot investigate into such an offence, u/s 155(2) Crl. P. C. without the special order of a magistrate. Hence, the reports by the police in these

cases, upon which the prosecution ensued, were themselves be initio void. Nor is this, according to learned counsel an irregularity curable under S.

537 Crl. P. C.

(5) This line of argument is clearly misconceived, and the authorities are very clear that, even in non-cognisable cases, nothing will prevent the

police from competently filing a report, which should then be treated as a complaint under S. 200(aa) Crl. P. C. with the sole variation that no

sworn statement need be recorded from the police officer lodging the complaint. A situation practically identical with the present situation was dealt

with by the Supreme Court in Pravin Chandra Mody Vs. State of Andhra Pradesh, . That was also a case in which a police officer was

investigating an offence under S. 420 I.P.C. which was cognisable. While doing so, on the same facts, he investigated an offence under S. 7 of the

Essential Commodities Act, which was non-cognisable. Actually, he filed a single charge-sheet in that case, including both the offences. The

Supreme Court referred to the three claused of S. 190(1) Crl. P.C. and held that both the offences could be investigated, and that the charge-

sheet was also competent. The Full Bench decision of this court in The Public Prosecutor Vs. Ratnavelu Chetty, is authority for the view that under

S. 190 Crl. P.C. magistrates could take cognisance of even non-cognisable offences upon report made in writing by a police officer, without

examining the officer on oath. In other words, such a report would be treated as a complaint, but the provisions of S. 200(aa) Crl. P.C. would

obviate the necessity for examining the police officer on oath.

(6) As regards the bar of S. 155(2) Crl. P.C. the Supreme Court decision cited by me is authority for the view that where, on the same set of

facts, both a cognisable and a non-cognisable offence would appear to be involved, the police investigating the cognisable offence can also

investigate the non-cognisable offence, and take action thereon. The order of the learned District Magistrate(J) in revision is perfectly correct, and

must be upheld. It follows that these revision proceedings must be dismissed, and that the revision petitioners must take their trials upon the merits

of the case against them under S. 78(c) of the Trade and Merchandise Marks Act, concerning which, of course I am expressing no view whatever.

The court seized of the cases will now follow the procedure applicable to warrant cases, in respect of these charges. The revision proceedings are

accordingly dismissed.

(7) Revision Dismissed.