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CASE NO.: Appeal (crl.)  693 of 2008

PETITIONER: P.D. Lakhani & Anr

RESPONDENT: State of Punjab & Anr

DATE OF JUDGMENT: 22/04/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T REPORTABLE

CRIMINAL APPEAL NO.     693        OF 2008 (Arising out of SLP (Crl.) No.5345 of 2007)

S.B. Sinha, J.

1.      Leave granted. 2.      Applicability of Section 195(1) of the Code of Criminal Procedure,  1973 (the Code) is in question in this appeal which arises out of a judgment  and order dated 17.8.2007 passed by the High Court of Punjab and Haryana  in Criminal Miscellaneous No.62858 of 2005. 3.      Lakhani Rubber Udyog Ltd. Manufactures Hawai Chappel.  They are  registered owners of a trademark.  Inter alia, on the premise that M/s.  Saraswati Utpadan Pvt. Ltd., Respondent No.2 herein had been marketing  inferior goods with the label ’Lakhani’ illegally, a complaint was lodged by  the second appellant herein to SHO, Police Station Jalandhar.   He was asked to approach the Senior Superintendent of Police,  Jallandhar.   On or about 18.1.2005, the second appellant approached the Senior  Superintendent of Police, Jallandhar with a written complaint, stating :  "The inferior quality goods bearing the falsified  trade mark and as are packed infringing  labels/cartons are being sold and offered for sale at  various places in Faridabad and the purchasing  public is being deceived and cheated by such  persons.  The Government is also being defrauded  by huge reveues on account of the illegal trade  activities of such persons. We wish to bring it to your notice that such  persons/traders have full knowledge about the  legal and vested rights of our company and are not  only committing acts of falsification/infringement  and are also abetting the infringement of copyright  and are committing offence as are cognizable and  are punishable under Section 63 of the Copyright  Act read with Section 78-79 of the Trade and  Merchandise Marks Act, 1958. We further submit that the said unscrupulous  persons have in their power and possession dies,  the goods to which false trade marks, false trade  description has been applied including the material  and with logo, which are used for the purpose of  falsifying our company’s Trade MarK and Logo.   The said goods are also offered for sale by the said  accused.

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You are requested to take legal action against the  abovesaid parties and oblige."

4.      In the body of the said complaint itself, the Senior Superintendent of  Police directed one Gian Singh, to comply with the said request of the  second appellant and report. When a search was sought to be carried out in  the premises of the respondent purported to be on the basis of the said  direction, a large number of people objected thereto.  They obstructed in the  proceeding of search and misbehaved with the raiding party.  However,  nothing objectionable was found in the factory.  A report to the said effect  was submitted by the aforementioned Gian Singh, In-charge, Special Cell of  the CIA. 5.      Another report was filed by the Superintendent of Police (Detective)  on 8.4.2005 before the Senior Superintendent of Police, stating : "On inquiry of aforesaid application, it was found  that owner of Lakhani Rubber Udyog, 130, Sector  24, Faridabad had submitted an application  No.102-Peshi 16/1/2005 concerning duplicate  hawai chappal to the SSP.  It was forwarded to  Gian Singh, Insp. CIA for necessary action Gian  Singh Insp. on 19/1/2005 along with employees  and Sh. Munish Arora, Adv. Sh.N.D. Arora,  Marketing Advisor, Manohar Juneja and Sanjay  Sood, Marketing Manager of Lakhani Rubber  Udyog Limited, Faridabad, Haryana, reached at  the factory of Saraswati Utpadan, at Dogri Road,  for checking and made the search of the factory.   During this period for the opposition put by the  owners of the factory there was little altercation  also took place.  During search neither anything in  the name Lakhani Chappal nor anything of the like  appearance was found and also nothing  objectionable thing was found.  Therefore, the  application submitted by the aforesaid Lakhani  Rubber Udyog, Faridabad was found to be false  after investigation.  Due to which the Saraswati  Utpadan Pvt. Ltd. had lost its goodwill.  Whereas  the SHO Adampur is being directed to take action  against the aforesaid officer of Lakhani Rubber  Ltd. U/s 182 IPC.  No misbehave with anybody  proved on the part of Gian Signh Insp.  He has  complied with the orders of the senior officers.  No  further action is required on the application.  It is  suggested that the application is consigned to  record.  Report is submitted."

6.      The Station House Officer of the Police Station, Adampur thereafter  filed a complaint petition on or about 11.5.2005 before the Chief Judicial  Magistrate, inter alia, stating : "During investigation complaint lodged by  Lakhani Rubber Udyog Limited, Faridabad was  found false.  Due to this, reputation of Saraswati  Udyog Private Limited, Ahlwalpur got damage.   On this a complaint No.66-PLZ dated 14/2/05  given to Sh. SSP Sahib, bahadur, Jalandhar by  M/s. Sarswati Udyog Private Limited.  It was  investigated by Sh. SP-D Sahib, Jalandhar.  After  investigation they found that complaint filed by  Lakhani Rubber Udyog Limited is a false one and  they directed to take necessary action U/s 182 IPC  against the accused.  Kalendera was prepared in  accordance with the order of Sh. SP-D Sahib,  Jalandhar (letter No.1086-Reader SP-D/P dated

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9.4.05 and P.S. No.512-5E dated 9.4.05) and sent  to you for necessary action.  The under mentioned  witnesses will give evidence against the accused  and they should be called through summons and  accused should be given proper punishment."

7.      Legality and/or validity of the said report was questioned by the  appellants herein before the High Court of Punjab and Haryana by filing an  application under Section 482 of the Code.  By reason of the impugned  judgment dated 17.8.2005, the High Court dismissed the said application. 8.      Mr. K.V. Vishwanathan, learned counsel appearing on behalf of the  appellant, would submit that having regard to the terminologies used in  Section 195(1) of the Code of Criminal Procedure, 1973 the complaint  petition could have been filed only by the Senior Superintendent of Police,  Jalandhar or any authority higher in rank to him.  In any event, the  Managing Director of Lakhani being not concerned with the lodging of the  earlier complaint, the complaint in question was not maintainable against  him. 9.      Mr. Gupta, learned counsel appearing on behalf of the respondent, on  the other hand, urged as the matter is pending before the Trial Judge, this  Court, at this stage, should not interfere with the impugned judgment.   It was contended that in effect and substance, the complaint was filed  by the appellant No.2 only before the Station House Officer which was  referred to Senior Superintendent of Police as the question involved was  infringement of the laws governing Intellectual Properties.  In any event, as  the complaint petition having been filed pursuant to the directions of the  Senior Superintendent of Police itself, it is valid in law.  Section 182 of the Indian Penal Code, indisputably, provides for an  offence falling under Chapter X of the Indian Penal Code.  Section 195  provides for prosecution for contempt of lawful authority of public servant,  for offences against public servant and for offences relating to documents  given in evidence.  It contains an embargo stating that ’no court shall take  cognizance of an offence punishable, inter alia, under the aforementioned  provision except on the complaint in writing by the public servant concerned  or by some other public servant to whom he is administratively subordinate’.   ’Contempt of a public servant’ has a definite connotation.  Such contempt  must be provided for by law.  It must be found to be false.   The Station House Officer, Jallandhar did not act on the said  complaint.  He asked the appellant No.2 to bring the same to the notice of  the Senior Superintendent Police, Jalandhar, Complaint Branch, which he  did.  It was, thus, a complaint to a higher authority. 10.     The Senior Superintendent of Police only had asked the  Superintendent of Police, Detective Branch to enquire into the matter and  report within seven days.   Shri Gian Singh, pursuant thereto was asked to carry out the necessary  search of the premises of the second respondent.  11.     The report of compliance by Gian Singh was made to the CIA staff.   CIA staff, in turn, placed it before the Senior Superintendent of Police.  The  proceedings, therefore, were, indisputably, initiated by the Senior  Superintendent of Police, Jallandhar and not by the Station House Officer,.  12.     The Station House Officer would have jurisdiction to investigate into  the matter provided a first information report was lodged by him in terms of  the complaint made by the appellant No.2.  Whatever action was taken in the  matter was pursuant to the order of the Senior Superintendent of Police  Jalandhar.   The High Court, in our opinion, thus, committed a manifest error in so  far as it held that the as the complaint was addressed to the SHO, he was the  appropriate authority to lodge a complaint in respect of an offence  punishable under Section 182 of the Indian Penal Code.   The fact that the search was made pursuant to the directions issued by  the Senior Superintendent of Police, Jalandhar is not in dispute.  Section 195  contains a bar on the Magistrate to take cognizance of any offence.  When a  complaint is not made by the appropriate public servant, the Court will have  no jurisdiction in respect thereof.  Any trial held pursuant thereto would be

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wholly without jurisdiction.  In a case of this nature, representation, if any,  for all intent and purport was made before the Senior Superintendent of  Police and not before the Station House Officer. 13.     No complaint, therefore, could be lodged before the learned  Magistrate by the Station House Officer.  Even assuming that the same was  done under the directions of Senior Superintendent of Police, Jallandhar,  Section 195, in no uncertain terms, directs filing of an appropriate complaint  petition only by the public servant concerned or his superior officer.  It,  therefore, cannot be done by an inferior officer.  It does not provide for  delegation of the function of the public servant concerned.   We may notice that in terms of sub-section (3) of Section 340 of the  Code, a complaint may be signed by such an officer as the High Court may  appoint if the complaint is made by the High Court.  But in all other cases,  the same is to be done by the presiding officer of the court or by such officer  of the court as it may authorize in writing in this behalf.  Legislature, thus,  wherever thought necessary to empower a court or public servant to delegate  his power, made provisions therefor.  As the statute does not contemplate  delegation of his power by the Senior Superintendent of Police, we cannot  assume that there exists such a provision.  A power to delegate, when a  complete bar is created, must be express; it being not an incidental power. 14.     In Daulat Ram v. State of Punjab [(1962) 2 SCR 812], Hidayatullah, J.  (as the learned Judge then was), held as under : "\005 In our opinion, this is not a due compliance  with the provisions of that section.  What the  section contemplates is that the complaint must be  in writing by the public servant concerned and  there is no such compliance in this case."

       The said decision was followed by a Division Bench of this Court in  State of U.P. v. Mata Bhikh & Ors. [(1994) 4 SCC 95], stating "A cursory reading of Section 195(1)(a) makes out  that in case a public servant concerned who has  promulgated an order which has not been obeyed  or which has been disobeyed, does not prefer to  give a complaint or refuses to give a complaint  then it is open to the superior public servant to  whom the officer who initially passed the order is  administratively subordinate to prefer a complaint  in respect of the disobedience of the order  promulgated by his subordinate.  The word  ’subordinate’ means administratively subordinate,  i.e., some other public servant who is his official  superior and under whose administrative control he  works."

       The said decisions are squarely applicable to the facts of the present  case. 15.     For the reasons aforementioned, the impugned judgment cannot be  sustained.  It is set aside accordingly.  Appeal is allowed.  However, there  cannot be any doubt whatsoever that another complaint petition would be  maintainable at the instance of the appropriate authority.