MIHIR SURENDRABHAI SHAH …..Petitioner
Versus
STATE OF GUJARAT & others ……Respondents
Date of Order:- 31.07.2023
What the Petition is all about ?
That the petitioner was in business of selling auto parts in Ahmedabad City in the name and style of Rushab Automobiles.
On 25.11.2013, One Sanjay Kumar Verma, who claimed to be an officer of IPR Vigilance India Company, received tip that Rushab Automobiles, owner of the petitioner / accused is selling duplicate part of Hyundai motor company.
Upon receipt of such tip, complainant(Sanjay Kumar Verma) approached CID (Crime), Gandhinagar and produced certain evidence. Consequent thereto shop of the petitioner was raided by the police along with the complainant. It was found that spare parts of Hyundai motor company at the shop were duplicate.
On completion of raid, FIR being C.R.No.3432 of 2013 was registered with Naranpura Police Station, Ahmedabad for the offence under sections 101, 102, 103, 104, 105 of the Trade Mark Act, 1999. Investigation was completed and charge sheet was also filed. Criminal Case No.96 of 2014, therefore, is pending before the learned Metropolitan Magistrate Court along with Criminal Case No.305 of 2013.
After reading FIR, it was seen that complainant claims himself as Officer of IPR (Vigilance) and further claims that he has authority to lodge complaint on behalf of IPR (Vigilance) for lodging offence of selling duplicate auto parts. Perusal of the FIR along with charge sheet papers,
It was proved that complainant was authorized to file complaint on behalf of Hyundai Motor Company or on behalf of IPR (Vigilance). Investigation showed that no contract between IPR (Vigilance) and Hyundai Motor Company which permits complainant to search for selling of duplicate auto parts and lodging complaint. In absence of appropriate authorization, FIR failed.
The charge sheet papers did not disclosed that the first informant was authorized to file complaint under the provisions of the Act.
Prior Opinion of Registrar of Trademark is Mandatory, which was missing.
In view of bar contained in section 115(4) of the Act read with Rule 110 of the Trade Mark Rules, would not permit registration of FIR for the offence punishable under sections 103 to 105 of the Act without obtaining opinion from the Registrar for infringement of Trade Mark. Charge sheet papers didn’t showed that such opinion has been obtained by the first informant / complainant. It didn’t disclosed that Registrar for infringement of Trade Mark has opined that spare parts which are sold at shop of the accused were infringing provision of sections 103 to 105 of the Act. In simple words, opinion which is mandatory is missing.
Investigation to be carried out by Officer of rank of DSP or equivalent
Section 115 of the Act mandates that investigation of the offence has to be carried out by the officer of rank of DSP or officer of equivalent rank. That investigation has been carried out by PSI who is below rank of DSP. In that way, statutory provision is breached and benefit of such breach should be given to the accused. Perusal of section 101 and 102 of the Act describes meaning of applying trade marks and trade descriptions of some other or falsifying and falsely applying trade marks of some other. Sections 103 to 105 of the Act describes penalty for such offences.
Section 115 of Tradmarks Act says, “Cognizance of certain offences and the powers of police officer for search and seizure:- (1) No Court shall take cognizance of an offence under Section 107 or Section 108 or Section 109 except on complaint in writing made by the Registrar or any officer authorized by him in writing Provided that in relation to clause (c) of subsection (1) of Section 107, a Court shall take cognizance of an offence on the basis of a certificate issued by the Registrar in respect of any goods or services in respect of which it is not in fact registered. (2) No court inferior to that of Metropolitan Magistrate or Judicial Magistrate of the first class shall try an offence under this Act. (3) The offences under Section 103 or Section 104 or Section 105 shall be cognizable. (4) Any police officer not below the rank of Deputy Superintendent of Police or equivalent, may, if he is satisfied that any of the offences referred to in subsection (3) has been, is being, or is likely to be, committed, search and seize without warrants of goods, die, block, machine, plate, other instruments or things involved in committing the offence, wherever found, and all the articles so seized shall, as soon as practicable, be produced before a Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be; Provided that the police officer, before making any search and seizure, shall obtain the opinion of the Registrar on facts involved in the offence relating to trademark and shall abide by the opinion so obtained. (5) Any person having any interest in any article seized under sub-section (4), may, within fifteen days of such seizure, make an application to the Judicial Magistrate of the first Class or Metropolitan Magistrate, as the case may be, for such article being restored to him and the Magistrate, after hearing the applicant and the prosecution, shall make such order on the application as he may deem fit.”
Rule 110 of the Trade Mark Rules is in relation with section 115 of the Trade Mark Act.
Provisio to section 115(4) of the Act is clear and unambiguous. Undeniably, the police officer who on the complaint has searched that accused is applying trade mark and trade description of complaint or falsifying and falsely apply trade mark of the complaint is required to take opinion of the Registrar for infringement of Trade Mark prior to search and seizure. Rule 110 also spells the same. In the present case, FIR does not disclose obtaining opinion of the Registrar.
Court observed that, mandatory provisions are breached in registering FIR. The complainant has failed to establish that he has authority to file complaint. He cannot give opinion that accused is applying trade mark / trade description or falsifying and falsely applying trade mark of complaint without taking opinion of the Registrar for infringement of trade mark. The circumstances, spells that there is clear breach of statutory provision.
Only police officer not below the rank of DSP or equivalent can investigate the offence. Charge sheet papers in the present case indicates that investigation has been carried by Mr. J.P.Agarvat, PSI, Naranpura Police Station, Ahmedabad. Once again statutory provision of law is breached.
Reasons spells herein above indicates that parameters set out in the case of State of Haryana v/s Bhajan Lal [AIR 1992 SC 604] and Som Mittal v/s. State of Karnataka [(2008) 3 SCC 574] are attracted and applicable for quashing of FIR and also consequent proceedings arising out of said FIR. Parameters which are stated in the said decisions can be stated as under :-
“Where the allegations made in the First Information Report or the complaint, even if they are taken at their fact value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
Where, the allegations in the F.I.R do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a magistrate as contemplated under Section 155 (2) of the Code.
Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.”
Above parameters are applicable to the facts of the present case. In wake of above reasons, the petition is allowed. FIR being C.R.No.3432 of 2013 registered with Naranpura Police Station as well as Criminal Case No.96 of 2014 arising out of said FIR and all consequential proceedings arising out of the said FIR are hereby quashed and set aside. Rule is made absolute.
Read, Reviewed & Edited by
Neeraj Gogia,
Advocate
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