24 November 1958
Supreme Court
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DAU DAYAL Vs THE STATE OF UTTAR PRADESH

Case number: Appeal (crl.) 118 of 1958


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PETITIONER: DAU DAYAL

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 24/11/1958

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA GAJENDRAGADKAR, P.B. SARKAR, A.K.

CITATION:  1959 AIR  433            1959 SCR  Supl. (1) 639  CITATOR INFO :  E          1966 SC1820  (7,8)

ACT: Criminal Trial-Counterfeiting trade mark-Limitation, of  one year for prosecution-Prosecution, when commences-Whether  on filing   of   complaint  or  on  issue   of   Process-Indian Merchandise Marks Act, 1889 (4 of 1889), s. 15.

HEADNOTE: On  April 26, 954, the appellant was arrested  for  offences under  ss. 420, 482, 483, 485 and 486 Indian Penal Code  and bidis  alleged to bear counterfeit trade marks  were  seized from him.  On this a complaint was filed on May 26,  against the  appellant  that  he was in  possession  of  counterfeit bidis, wrappers and labels.  After investigation, the police submitted a charge sheet on September 30, 1954, and  summons was  ordered  to  the  appellant  on  July  22,  1955.   The appellant   raised   a  preliminary   objection   before-the Magistrate that the proceedings were barred by s. 15 of  the Indian Merchandise Marks Act.  He contended that the offence was  discovered on April 26, 1954, when he was arrested  and the  prosecution which commenced with the issue  of  process against  him on July 22, 1954, was beyond the period of  one year provided by s. 15. Held,  that the prosecution was not barred by S. 15  as  the prosecution  commenced on the presentation of the  complaint which  was within one year of the discovery of  the  offence and  not on the issuing of the process.  It is  settled  law that  unless  there  is something to  the  contrary  in  the statute,  when  a private complaint is presented it  is  the date of presentation thereof that marks the commencement  of the  prosecution.  The period of limitation is  intended  to operate  against the complainant and not against the  Court. It will defeat the object of the Act and deprive traders  of the protection of the law if it were held that the complaint should  be thrown out unless process was issued  within  one year. of the discovery of the offence.

JUDGMENT:

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 118  of 1958. Appeal  from the judgment and order dated May 14,  1958,  of the  Allahabad High Court in Criminal Revision No.  1594  of 1956, arising out of the judgment and order of the Court  of Additional Sessions Judge at Kanpur in Criminal Revision No. 13 of 1956. C.   P. Lal, for the appellant. 640 Gopi Nath Dikshit, for the respondent. 1958.  November 24.  The Judgment of the Court was delivered by VENKATARAMA  AIYAR, J.-The facts leading up to  this  appeal are these: On April 26, 1954, the appellant was arrested  by the Sisamau Police for offences under ss. 420, 482,483,  485 and  486 of the Indian Penal Code on the allegation that  he was  in possession of 25 packets of Chand Chhap Biri,  which were  alleged to bear counterfeit trade marks.  On  May  26, 1954,  one Harish Chandra Jain acting on behalf  of  Messrs. Mohan Lal Hargovind Das filed a complaint charging that  the appellant  was in possession of counterfeit bidis,  wrappers and labels and praying that a case under the sections  above mentioned  be  registered  and investigated.  On  that,  the Magistrate passed the following order : " S. O.   Sisamau.  Please investigate and register a case." After investigation, the police submitted their  chargesheet on  September  30,  1954, and summons  was  ordered  to  the appellant  on  July 22, 1955.  On September  17,  1955,  the appellant filed an application before the Magistrate wherein he raised a preliminary objection that the proceedings  were barred by s. 15 of the Indian Merchandise Marks Act, 1889 (4 of 1889), hereinafter referred to as the Act.  That  section provides : " No such prosecution as is mentioned in the last  foregoing section  shall  be commenced after the expiration  of  three years next after the commission of the offence, or one  year after  the  first  discovery  thereof  by  the   prosecutor, whichever expiration first happens." The  contention  of the appellant was that the  offence  was discovered  on April 26, 1954, when he was arrested and  the goods seized, and that, in consequence, the issue of process on July 22, 1955, was beyond the period of one year provided under  s.  15 of the Act, and that  the  proceedings  should therefore   be  quashed  as  barred  by   limitation.    The Magistrate rejected this contention, and a Revision Petition preferred  against  this order to  the  Additional  Sessions Judge, Kanpur, 641 shared  the same fate.  The appellant then filed  a  further Revision  Petition  to the High Court  of  Allahabad,  being Criminal  Revision No. 1594 of 1956, and the same was  heard along  with  other  similar Revision Petitions  by  a  Bench consisting of James and Takru, JJ.  By their judgment  dated May  13, 1958, the learned Judges held that the  prosecution commenced when the complaint was presented on May 26,  1954, and  that  as  the  discovery was on  April  26,  1954,  the proceedings  were  within time under s. 15 of the  Act.   In view of the importance of the question raised, they  granted leave  to appeal to this Court under Art. 134 (1)(c) of  the Constitution, and that is how the matter comes before us. The point for decision is, when does a prosecution  commence for  purposes of s. 15 of the Act, whether on the date  when the  complaint is preferred, or when the process  is  issued thereon?  The word "prosecution " is not defined in the Act, nor  are  there  any  provisions  therein  bearing  on  this

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question.   Now,  under  the law and  apart  from  statutory prescriptions,  a prosecution commences, where it is at  the instance  of  a private prosecutor, when  the  complaint  is preferred.   The position is thus stated in Halsbury’s  Laws of England, Vol.  X, 3rd Edn., p. 340, para. 630: "  Criminal prosecutions, except where there  are  statutory provisions  to  the contrary, may be commenced at  any  time after  the  commission  of the offence.   A  prosecution  is commenced, when an information is laid before a justice, or, if  there  is no information, when the  accused  is  brought before  a justice to answer the charge, or, if there  is  no preliminary examination before a justice, when an indictment is preferred.  " It  is further stated there that different statutes  provide for  various  periods of limitation within  which  a  prose- cution  could  be  commenced after  the  commission  of  the offence, and that three years is the period provided for  an offence  under  the  Merchandise  Marks,  Act,  1887,  which corresponds  to the Indian Merchandise Marks Act, 1889.   It is therefore settled law that unless 642 there  is something to the contrary in the statute,  when  a private  complaint  is  presented it is  the  date  of  pre- sentation  thereof  that  marks  the  commencement  of   the prosecution. Now,  what is the nature of the prosecution under s.  15  of the Act ? It is relevant in this connection to refer to  ss. 13 and 14, which run as follows: S.   13: ’,In the case of goods brought into India’ by  sea, evidence of the port of shipment shall, in a prosecution for an offence against this Act or section 18 of the Sea Customs Act,  1878, as amended by this Act, be prima facie  evidence of  the  place or country in which the goods  were  made  or produced." S.   14(1): " On any such prosecution as is mentioned in the last foregoing section or on any prosecution for an  offence against  any  of the sections of the Indian Penal  Code,  as amended  by  this Act, which relate to trade,  property  and other  marks,  the Court may order costs to be paid  to  the defendant  by  the prosecutor or to the  prosecutor  by  the defendant, having regard to the information given by and the conduct of the defendant and prosecutor respectively. (2)  Such  costs  shall,  on application to  the  Court,  be recoverable as if they were fine." The object of the above provisions is to protect the  rights of  persons  who manufacture and sell  goods  with  distinct trade  marks against invasion by other persons  passing  off their goods fraudulently and with counterfeit trade marks as those  of the manufacturers.  Normally, the remedy for  such infringement will be by action in Civil Courts.  But in view of  the delay which is incidental to civil  proceedings  and the  great  injustice which might result if  the  rights  of manufacturers are not promptly protected, the law gives them the right to take the matter before the Criminal Courts, and prosecute  the offenders, so as to enable  them  effectively ,and  speedily to vindicate their rights.  It is  for  this, reason  that a short period of limitation is  provided  heir preferring a complaint under a. 15 of the and there is  also a special provision for award of costs of the proceedings to or by the complainant. in  Ruppell  v. Ponnuswami Tewan (1),  the   question  &rose whether a prosecution launched by the complainant in 1898 in respect  of goods sold and marked with what was  alleged  to be,  a  counterfeit  trade mark in 1893  was  in  time.   In deciding  that it was a barred under s. 15 of the  Act,  the

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Court observed as follows: Section 15 of the Merchandise Mark,% Act IV of 1889,  enacts that  no prosecution such as the present shall be  commenced after  the expiration of one year after the first  discovery of  the  offence  by the prosecutor.  The  reason  for  this limitation is clear. Ordinarily  the  infringement of a trade. mark is  rather  a civil  than a criminal wrong, but as civil  proceedings  may require  much  time  and  expenditure to  bring  them  to  a conclusion,  the  Legislature,  in its  anxiety  to  protect traders,  has  allowed  resort to  the  criminal  courts  to provide  a speedy remedy in cases where the aggrieved  party is diligent and does not by his conduct show that the  case. is  not one of urgency. if, therefore, the person  aggrieved fails to resort to the criminal courts within a year of  the offence  coming to his knowledge, the law assumes  that  the case  is not one of urgency, and it leaves him to his  civil remedy by an action for injunction." It  will  be  noticed that the complainant  is  required  to resort to the Court within one year of the discovery of  the offence if he is to have the benefit of proceeding under the Act.   That means that if the complaint is presented  within one  year of such discovery, the requirements of s.  15  are satisfied.    The  period  of  limitation,  it   should   be remembered,  is intended to operate against the  complainant and  to  ensure’ diligence on his part  in  prosecuting  his rights, and not against the Court.  Now, it will defeat  the object  of  the  enactment  and  de-Drive  traders  of   the protection  which the law intended to give them, if we  were to  hold  that unless process is issued on  their  complaint within  one year of the discovery of the offence, it  should be  thrown out. - It will be an unfortunate - state  of  the law  if the trader whose rights -had been-infringed and  who takes lip the matter promptly before the Criminal (1)  (1899) I.L.R. 22 Mad. 488. 644 Court is, nevertheless, denied redress owing to the delay in the issue of process which occurs in Court. The  appellant relies on certain decisions as showing  that. the  prosecution must be held to commence only when  process is issued and not when complaint is filed.  In Sheik  Meeran Sahib  v.  Ratnavelu Mudali (1), De Rozario v.  Gulab  Chand Anundjee (2) and Golap Jan v. Bholanath Khettry (3) cited by the  appellant,  the  question was  whether  an  action  for damages  for  malicious  prosecution  would  lie  when   the complaint was dismissed without notice to the plaintiff.  It was  held that the plaintiff could not be held to have  been prosecuted  unless process was issued to him and that  where the  complaint  was  dismissed without  such  process  being issued,  there was no prosecution and no action for  damages in  respect of such prosecution would lie.  These  decisions have  no  bearing  on the present question.   In  suits  for damages  for malicious prosecution, one of the points to  be decided is, whether the plaintiff was, in fact,  prosecuted; and if he was, no question arises as to when the prosecution commenced.   On the other hand, the point for decision in  a prosecution  under  the  Act is, not  whether  there  was  a prosecution  but when it was instituted ; and a question  as to  whether  there was prosecution or not  would  be  wholly foreign  to  it.   Indeed,  in an  action  for  damages  for malicious  prosecution,  when  it is  held  that  there  was prosecution,  that could properly be held to have  commenced when  the complaint was filed and not when the  process  was issued.   Vide  the observations of Woodroffe,  J.,  in  the course of the argument in Golap Jan v. Bholanath Khettry (3)

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at p. 884.  The decisions in Sheik Meeran Sahib v. Ratnavelu Mudali (1), De Rozario v. Gulab Chand Anundjee (2) and Golap Jan  v.  Bholanath Khettry (3) therefore do  not  throw  any light on the matter now under consideration.  It may be that these decisions may have to be reconsidered in the light  of the recent decision of the Privy Council in Mohamed Amin  v. Jogendra Kumar Bannerjee (4), wherein it was observed: (1)  (1912)  I.L.R. 37 Mad. 181  (2) (1910) I.L.R.  37  Cal. 358. (3) (1911) I.L.R. 38 Cal. 890.  (4) [1947] A.C. 322, 331. 645 "  The  test is not whether the  criminal  proceedings  have reached  a  stage  at  which they  may  be  described  as  a prosecution;  the  test  is whether  such  proceedings  have reached a stage at which damage to the plaintiff results." Vide  also Ramaswami Iyer on The Law of Torts, 4th Edn.,  p. 318. The  decision in R.  R. Chari v. The State of Uttar  Pradesh (1)  was  relied on by the appellant as showing  that  until process  was issued, there was no prosecution.   There,  the appellant was proceeded against under the provisions. of the Prevention  of  Corruption Act No. 2 of  1947.   The  Deputy Magistrate,  Kanpur,  issued  a warrant for  his  arrest  on October  22,  1947.  Thereafter, on December  6,  1948,  the prosecution  obtained the necessary sanction under the  Act. The  contention  of the appellant was that  the  prosecution must be held to have been instituted against him on  October 22, 1947, when he was arrested, that as no sanction for  his prosecution had been obtained at that time, the  proceedings were  bad,  and that the defect was not  cured  by  sanction being obtained subsequently on December 6, 1948.  This Court held that under the special provisions of the Prevention  of Corruption  Act,  the  police had the power  to  arrest  the appellant pending investigation and that was all the  effect of  the  order of the Deputy Magistrate  dated  October  22, 1947,  and  that therefore there was no prosecution  on  the date of the arrest.  But here, we are dealing with a private complaint,  and as pointed out at p. 315 of the  Report,  s. 190(1)(a) of the Criminal Procedure Code would apply to such cases,  and  the  Magistrate  must be  held  to  have  taken cognizance when the complaint was received.  This  decision, in our opinion, does not assist the appellant; nor does  the decision  in  Gopal Marwari  v.  King-Emperor  (2).   There, considering ss. 200 and 202 of the Criminal Procedure  Code, the  learned  Judges observed that there was  a  distinction between initiation of proceedings before the Magistrate  and his taking cognizance of the same.  It is Sufficient to  say that that is not (1) [1951] S.C.R. 312. (2) (1943) I.L.R. 22 Pat- 433. 646 the question ’which we have got to -decide here, and on  the language of s. 15 of the Act, which is what we are concerned with in this appeal, all that is-required is that a  private ’prosecutor’ should prefer this complaint within one year of the discovery of the offence’, and if that is done,’ the bar under that section cannot apply.  We agree with the decision of  the  learned  Judges of the Court.  below  that  -  the, proceedings are not barred by s. 15 of the Act. This appeal is accordingly dismissed.          Appeal  dismissed.