Case Note & Summary
The applicant, Shrenik Shantilal Dhadiwal, proprietor of a firm, faced criminal prosecution arising from FIR No. 97/2003 registered at Shrirampur City Police Station under sections 78 and 79 of the Trade and Merchandise Marks Act, 1958, and sections 420, 486 read with 34 of the Indian Penal Code. The complaint, lodged by respondent No. 2 Panditrao Santuji Thorat, alleged that the applicant was manufacturing and selling soap under the brand name 'GEET', which was deceptively similar to the respondent's 'GETTA' soap, a trade mark used since 1980. The respondent claimed exclusive use and had applied for registration. The incident allegedly occurred on 04.05.2003, when the respondent visited distributors and learned of the similar product. After registration of the FIR, investigation was carried out by the Local Crime Branch, Ahmednagar, and a charge-sheet was filed resulting in RTC No. 135/2003 pending before the Judicial Magistrate First Class, Shrirampur. The applicant filed the present application under section 482 of the Code of Criminal Procedure seeking quashing of the FIR and proceedings. The High Court noted that the date of offence was 04.05.2003, thus the Trade Marks Act, 1999 applied, not the 1958 Act, and the correct provisions were sections 102, 103, and 104 of the 1999 Act. The core legal issue was non-compliance with section 115(4) of the Trade Marks Act, 1999. Section 115(4) provides that offences under sections 103, 104, or 105 are cognizable, but any police officer conducting search and seizure must be not below the rank of Deputy Superintendent of Police and must obtain the opinion of the Registrar on facts before proceeding. The court observed from the investigation papers that the investigation was conducted by an Assistant Police Inspector, Local Crime Branch, Ahmednagar, and no opinion of the Registrar was obtained. Thus, there was a clear contravention of section 115(4) and its proviso. The investigating officer was not authorized to carry out the investigation, and the charge-sheet filed consequently was without authority. The court held that such procedural illegality vitiated the proceedings, and in exercise of its inherent powers under section 482 CrPC, it quashed the FIR and the criminal case. The application was allowed, and relief was granted in terms of prayer clause 'C', quashing FIR No. 97/2003 and RTC No. 135/2003 pending before JMFC, Shrirampur. The judgment was pronounced on 01.08.2018, allowing the application and making the rule absolute.
Headnote
A) Criminal Procedure – Investigation – Trade Marks Act, 1999 – Sections 103, 104, 105, 115(4) and proviso – The mandatory requirement that investigation of offences under Sections 103, 104 or 105 be conducted by a police officer not below the rank of Deputy Superintendent of Police, who must first obtain and abide by the opinion of the Registrar – Non-compliance renders the investigation without authority and vitiates the consequent charge-sheet – Held, the application under Section 482 CrPC is allowed and the FIR and criminal case are quashed. (Paras 9-12)
Issue of Consideration
Whether the investigation conducted by an Assistant Police Inspector without obtaining the Registrar's opinion and by an officer not of the rank of Deputy Superintendent of Police violates Section 115 of the Trade Marks Act, 1999, and whether the FIR and consequent criminal case are liable to be quashed?
Final Decision
Application allowed; relief granted in terms of prayer clause 'C'; rule made absolute; criminal application disposed of, thereby quashing FIR No. 97/2003 and Criminal Case RTC No. 135/2003 pending before JMFC, Shrirampur.
Law Points
- Investigation for offences under sections 103
- 104
- 105 Trade Marks Act must be conducted by police officer not below rank of Deputy Superintendent of Police
- police officer must obtain and abide by Registrar's opinion before search/seizure
- non-compliance vitiates investigation
- proceedings quashed under section 482 CrPC
