Amar Bir Singh Gill, J. — The petitioners have invoked the inherent jurisdiction of this Court under Section 482 Cr. PC for quashing FIR No. 294, dated 3.8.1989 under Sections 78 and 79 of Trade and Merchandise Marks Act, 1958 (for short to be referred as “the Act”) read with Section 420 IPC.
2. The facts giving rise to the present controversy are that one Kishan Kumar Jindal failed a complaint under Sections 78 and 79 of the Act which was endorsed by the Magistrate under Section 156(3) Cr. PC vide order dated 10.5.1989, for inquiry with a further direction to seize the goods containing false trade marks from the person whoever found in possession of such goods and to take necessary action against such person or any other person found to be guilty of committing an offence punishable under Sections 78 and 79 of the Act. In complaint with the said directions, the police seized some iron girders and recorded DDR No. 38 dated 22.6.1989 in this respect alongwith bilty issued by Ashoka Akal Transport Company, G.T Road, Mandi Gobindgarh. Thereafter, the police made a report that since offences under Sections 78 and 79 of the Act were non-cognizable and as such, the police could not proceed further Page: 291. On receipt of the report of the Police, the Magistrate passed the following order on 27.7.1989 :—
“Heard. Report received. Perusal of the report shows that the offence of cheating was committed which is cognizable offence. Hence the case is remanded back to the S.H.O concerned for necessary investigation, under Section 156(3) Cr. PC. Report be awaited for 5.8.89
Sd/- CJM Hisar 27.7.89”
3. On receipt of the above order, formal FIR was registered against the petitioners. However, before the proceedings in the trial Court could commence, the parties entered into a compromise, Annexure P-2. Annexure P-3 is the composition deed, Annexure P-4 is the statement made by the complaint himself in this respect and Annexure P-5 is the statement of the petitioners. The Magistrate by the impugned order dated 12.12.1990, Annexure P-6, declined to accept the compromise. The petitioners have challenged the impugned order, Annexure P-6, as well as the proceedings including the FIR pending before the trial Court.
4. Shri R.S Cheema, learned senior counsel for the petitioners has mainly contended that the procedure adopted by the Magistrate in directing the inquiry/investigation in a case, by the police, which was of non-cognizable offence, was not as per the provisions given in the Criminal Procedure Code. Admittedly, offence under Sections 78 and 79 of the Act being non-cognizable, the police could not investigate the same.
5. In a similar case reported as Zakir Ahmed v. Azam Khan, 1996 Crl. Law Journal 296, the Calcutta High Court observed as under :—
“8. To the alleged offence punishable under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958. First the punishment prescribed for the aforesaid offence appear to be two years. Undeniably, the said alleged offences are clearly not cognizable offences. Such alleged offences could not be investigated by the police as cognizable offence as such. The Learned Magistrate could neither conceivably have directed investigation of such offences by the police under Section 156(3) of the Code, as he did by passing the relevant order dated 22.4.1994”
6. On receipt of the report from the police, the offence made out from the complaint was non-cognizable and the Magistrate passed second order re-directing further investigation in the offence under Section 420 IPC, by the police by holding, as already reproduced above, that “perusal of the report shows that the offence of cheating was committed which is cognizable offence”. This was the judicial finding and as such further inquiry under Section 156(3) Cr. PC was not called for, whether an offence under Section 420 IPC is also attracted on the allegations which cover the commission of offence under Sections 78 and 79 of the Act. It is suffice to mention that earlier to the inclusion of offences under Sections 78 and 79 in the Act, Section 482 of IPC as it then stood, covered the commission of such offence. Section 482 IPC stands deleted from the Indian Penal Code because of availability of punishment for such offences under Section 78 and 79 of the Act. It would, thus, be un-reasonable to add Section 420 IPC as well for the same very allegations which are covered by Sections 78 and 79 of the Act. It is also observed in Syed Kaleem v. M/S Mysore Lakshmi Beedi Works*, 1993 Crl. LJ 232, as under :—
“In view of Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 providing penalty for applying false trade descriptions etc. and selling goods to which a false trade mark or false trade description is applied, as alleged in the relevant case before us, a charge under Section 420 IPC becomes wholly inapt.”
6. Obviously, the very existence of Sections 78 and 79 of the Act which is self contained Act, provides for punishment to the person committing offence under the said Act. It would be improper to use Section 420 IPC by altogether ignoring the provisions of Sections 78 and 79 of the Act. The allegations for committing offence under Section 420 IPC, in the complaint, are so vague in nature that it is mentioned in para 11 of the complaint that, “committing offences punishable under Sections 78-79 of the Trade and Merchandise Marks Act, 1958 and also under Section 420 of the Indian Penal Code.” It would also be interesting to note that the complainant did not mention any name in the complaint as an accused person Page: 292and in para 8 of the complaint, he mentioned only that “the complainant has come to know that certain persons/firms/companies, whose names and addresses are not known to the complainant at this stage, are engaged in the manufacture and sale of girders under the false trade mark JDL and false trade description as to the character and origin of the said goods.” The impugned order by the trial Court was passed at the stage when it was proceeding to frame the charge under Section 420 IPC against the petitioners read with Sections 78 and 79 of the Act.
7. As has been indicated above, the Magistrate himself initiated the process of investigation into the case of non-cognizable by the police being unwarranted under the Code and directed to register a case under Section 420 IPC on the allegations covered by the offence under Sections 78 and 79 of the Act which is unsustainable under the law. First Information Report No. 294, dated 8.8.1989, under Sections 78 and 79 of the Act read with Section 420 IPC, in the circumstances, need be quashed and the same is hereby quashed. However, the Magistrate shall proceed with the complaint under Sections 78 and 79 of the Act in accordance with law.
The petition is allowed to the extent indicated above.
Petition allowed.