ORDER
Arun Madan, J.
1. In all aforementioned petitions, identical and similar questions of law and facts are involved in the dispute between the same parties seeking similar relief and, therefore, these petitions are being disposed of by this common order at the request of both the parties.
2. The first five misc. petitions Under Section 482, Cr.P.C. pertain to the relief sought by the petitioners for quashing the first information reports lodged by complainant, Shantilal, the power of attorney holder of M/s. Savdekar Thakur & Company. Pune, with his office situated at Sumerpur Rajasthan, at respective police stations within Jalore district for offences under Sections 78, 79 of the Trade and Merchandise Marks Act, 1958 (for short, the Act of 1958), Sections 63 and 64 of the Copyright Act, 1957 (for brevity, the Act of 1957) read with Sections 420 & and 120B, IPC.
3. Rest of the two petitions are revision petitions filed under Sections 397 and 401, Cr.P.C. against impugned orders dated 5-6-98 and 10-7-98 passed by the Judicial Magistrates of Jalore and Raniwara (More), whereby applications of Vimal Chand and Mangilal, petitioners herein, for release of the goods Under Section 451 and 457, Cr. P.C. were rejected.
4. The facts relevant for deciding these petitions, succinctly stated, are that Shantilal-complainant lodged complaints against the petitioners, who are engaged in the business of sale of Bidis, popularly known ,is 'Lungar Bidi', on the allegations inter alia that the complainant is engaged in business of manufacturing 'Bidi' popularly known as 'Lungar Brand Bidi' and is having its registered trade mark for the said business, and running business in partnership with his brothers and his Firm is having registered trade mark in the name and style of Tnakur Savedkar & Co, in different districts 01 Rajasthan and areas of the partners of the said Firm for running the said business are earmarked and specified as per the. agreements duly executed between the partners, and the right of sale of the 'Bidi' in question is also restricted between the partners of the complainant-Firm within specified areas of the districts. The allegations against the petitioners as unfolded in the complaints are to the effect that the manufacturers of the 'Lungar Bidi' had some disputes regarding the sale of the Bidi in some of specified areas, which were being violated by some of them arid for which it had become necessary to resolve the dispute, for which they had arrived at an agreement, which was submitted by way of an amicable settlement before the Company Law Board at New Delhi, and according to which, the trade mark of the complainant-Firm was one and the same but with minor variations, which came to their respective shares, and they would not intrude beyond their specified areas in the jurisdiction of district concerned of other partners. It was further alleged that the petitioners, who had purchased the 'Bidi' goods from the complainant-Firm in Jawai Bandh area in district Pali of Rajasthan, were found selling the same in Sayala and Raniwara of district Jalore, meaning thereby that the goods, which they had purchased from the dealer of the Bidi in district Pali, should have been confined to the sale in district Pali only whereas they have been selling the Bidi goods in district Jalore, which is in violation of the clauses of the agreement executed between the owners in the areas of other partners. According- to the allegations in the complaints, the petitioners are liable to the commission of offence punishable under Sections, referred to above in second para of this order.
5. S.B. Cr. Misc. Petition Nos. 593/98 (Vimal Chand v. State & Shantilal) and 616/98 (Dalip Kumar v. State) relate to F.I.R. (Crime) Nos. 86/ 98 dt. 4-7-98 PS Raniwara and 102/98 dt. 15-5-198 PS Sanchore respectively. FIR No. 86/98 was registered on written report lodged at PS Raniwara by complainant Shantilal against Vimal Chand, whereas FIR No. 102/98 was registered on written report to the Superintendent of Police, Jalore by complainant-Shanlilal against petitioner Dalip Kumar at PS Sanchore for offences Under Sections 78 and 79 of the Act of 1958. 63 and 64 of the Copyright Act, read with Sections 420 and 120B, IPC.
6. S.B. Cr. Misc. Petition Nos. 594/98 (Mangilal Jain v. State & Shantilal), 617/98 (Lalchand v. State), and 618/98 (Dalip Kumar v. State) relate to F.I.R. (Crime) Nos. 67/98 dt. 2-5-98 PS Sayala, 110/98 dt, 28-4-198 PS Ahore and 106/98 dt. 28-4-98 PS Jaiore respectively. All the aforesaid three F.I.Rs. were registered upon complaint filed by complainant-Shantilal before the Civil Judge (Sr. Dn.)-cum-Additional Chief Judicial Magistrate, Jalore, who sent the complaints for investigation under Section 156(3), Cr. P.C. to the aforesaid respective police stations, where the investigation is pending for offences Under Sections 78 and 79 of the Act of 1958, 63 and 64 of the Copyright Act, and 420 and 120B, IPC, on the allegations interalia that the petitioners having purchased the Bidi goods of the specified quantity from the partners of complainant-Firm, who were dealing in district Pali of Rajasthan, have been selling that goods at their places of business like' Sanchore? Ahore, Sayala and Raniwara of district Jalore of Rajasthan, which is totally in violation of the agreement between the partners of complainant-Firm and this constitutes offences punishable under sections, referred to above.
7. S. B. Cr. Revision Petition Nos. 425/98 (Mangilal v. State) and 426/98 (Vimal Chand v. State) respectively have been preferred against the orders elated 5-6-98 of the Judicial Magistrate, Jalore and dated 10-7-98 of the Judicial Magistrate, Raniwala, whereby the learned Judicial Magistrates have declined the petitioners' request Under Sections 451 and 457, Cr. P.C. for release of Bidi goods seized from the petitioners during investigation in F.I.R. Nos. 67/98 PS Sayala and 86/98 PS Raniwara.
8. Hence the petitioners have come up in these petitions, as indicated above in first para of this order for quashing of the aforesaid F.I.Rs. by invoking inherent jurisdiction of this Court Under Section 482, Cr. P.C. and against the orders of the learned Judicial Magistrates, referred to above, who declined to release the Bidi goods seized in FIR Nos. 67/98 PS Sayala and 86/98 PSJ Raniwara, in revisional jurisdiction Under Sections 397/401, Cr. P.C.
9. I have heard the learned counsel for the parties, and perused the first information reports and the impugned orders of the learned Judicial Magistrates, who declined to release the Bidi goods for the reason that since the investigation by the police is in progress notwithstanding the request of the petitioners for release of the goods on superdginama since otherwise the goods are perishable and may loose their utility if they are kept in custody of the police at the Malkahans of respective police stations for indefinite period.
10. At the very outset, the learned counsel for the complainant vociforcely (vociferously) contended that there was an agreement duly executed between the manufacturers of 'Lungar' Bidi and the partners of the Firm manufacturing the Bidi under the Brand name 'Lungar'; thereby the right of sale was restricted within specified areas of different districts of Rajasthan and the petitioners after the purchase of the goods had in violation of the agreement sold the goods earlier in district Pali and subsequently in Raniwara of district Jalore of Rajasthan in infringement of the complainant's trade mark and the petitioners have been selling these goods in violation of the agreement in different areas and, therefore, are liable for punishment for offences referred to in the complaints. It has also been contended that earlier there had been disputes between partners of the complainant-Firm with regard to the use of trade mark, which was resolved by the Board of Control of Trade Mark at New Delhi and it was resolved that the trade mark of the said Bidi would be used by the respective partners but their sale was restricted to different districts of Rajasthan State.
11. The case as revealed from the first information reports and complaints is that the petitioners are traders in selling the Bidis arid they have been allegedly using the trade mark of the complainant party while the restricted allegations are that the accused persons had no right to sell the Bidis in districts, which were earmarked in favour of the partners of the complainant-Firm.
12. Contrarily as per case set up by the petitioners, they are neither manufacturers nor partners of the complainant-Firm and hence the question Is as to whether violation of agreement or infringement of right of sale of the Bidis within specified districts is applicable to the petitioners and at the most can it be said to be a dispute inter se between the partners of the complainant-Firm, who are engaged in the business of manufacturing/setting of 'Lungar' Brand Bidi? It is also the case of the petitioners that they are petty shop keepers engaged in the sale of 'Lungar' Brand Bidi and other brands also, which they purchased from different manufacturer;! and dealers of the Bidis etc. and sold the same in different districts under their constitutional right to earn livelihood Trade and business. However, the petitioners have not disputed this fact that they purchased the goods of 'Lungar' Brand Bidi from the complainant-Firm for some consideration and have been selling the same in the areas like Sayalan, Ahore, and Raniwara of district Jalore. They have further contended that since they are neither partners of the said complainant-Firm nor signatories to the said agreement executed between the complainant and other partners of their Firm, therefore, the question of violation of any of the clauses of the said agreement does not arise attributing commission of any of the offences as alleged in the first information reports in question.
13. The learned counsel for the petitioners strenuously contended that from a bare look at the first information reports as also the complaints lodged against the petitioners at the respective police stations it is explicitly clear that no case is made out at all against any of the petitioners for the alleged violation of provisions of the aforesaid Acts of 1957 and 1958, nor they can be held liable for commission of offences under Section 420 read with Section 120B, IPC, as it cannot be inferred from the contents of the FIRs or complaints that the petitioners have dishonestly inducted the complainant-Firm to deliver the goods in question with a view to make, alter, or destroy whole or any part of the valuable security or anything, which is signed or sealed and which is capable of being converted into a valuable security, and, therefore, they cannot be held liable for commission of offence of cheating Under Section 417, IPC, punishable Under Section 420, IPC. According to the petitioners, since the complainant has failed to make out any case against them for having entered into any conspiracy in furtherance of commission of any illegal act or an act, which is not legal by illegal means and, therefore, the ingredients envisaged in Section 120A, which defines criminal conspiracy, are not attracted and consequently they cannot be held liable for commission of such offence punishable under Section 120B, IPC.
14. I have considered the rival contentions of the learned counsel for both the parties and the legal position of various provisions of the Act as well as the Penal Code. Prima facie, I am of the considered view that from a careful perusal of the first information reports registered at different police stations, it is apparent that the petitioners are neither manufacturers nor the partners of the complainant Firm and, therefore, the question of either violation or infringement of the trade mark of the complainant-Firm does not arise, nor they can be held liable for having sold the goods of 'Lungar' Brand Bidi in different areas of Pali district or Jalore since they are not either parties or signatories to the agreement in question, so for which they cannot be held liable for violation of any of the clauses of the said agreement. During the course of hearing, the learned counsel for the complainant-Firm has not produced the copy of the said agreement executed between the partners of the complainant-Firm. In my view, when the very basis of the case set up by the complainant is absent, merely by saying that the petitioners have committed violation of any of the clauses of the agreement, the petitioners cannot be attributed to any culpability. In fact, the petitioners are bona fide purchasers of the goods of Bidi under trade mark and brand name of 'Lungar' Bidi in their own right with unrestricted right of its sale. I am further of the view that the bona fide purchasers for consideration cannot be held liable for sale of the goods in question because their Right to carry on any occupation, trade or business as guaranteed under Article 19(1)(g) of the Constitution of India cannot be curtailed or abridged in any manner whatsoever except on reasonable restrictions being imposed by a competent authority under the law within the parameters of such restrictions as envisaged under the Constitution, since otherwise it will amount to violation of Articles Hand 16. Hence freedom of trade can neither be curtailed nor restricted at the mere whims and fancies of any private individual or a Firm like the complainant's. Instead of proceeding against its own co-partners, who have allegedly violated clauses of the agreements or for infringement of the trade mark if any, the complainant-Firm has under obvious misconception and legal fallacy had choosen to lodge these first information reports against the petitioners, who are in no way connected with the said agreement, and therefore, in the absence of any violation of any of the clauses of the said agreement or any independent and prima facie evidence on record, it cannot be inferred that the petitioners have committed any of the offences referred to in the first information reports or in the impugned orders, whereby the learned Judicial Magistrate declined the petitioners' requests for release of the goods in question on execution of 'superdginama' subject to imposition of such conditions as may appear to be just and proper in accordance with law.
15. On a careful analysis of the contentions advanced by the learned counsel for the complainant-Firm it can only be inferred that the right to purchase or sale of the goods of 'Lungar' Brand Bidi is restricted between the partners of the Firm only within the areas specified in their agreement and it is a case of inter se rivalry between the parties of the said firm only for which the petitioners cannot be held liable or responsible for implication arising thereto in any manner whatsoever.
16. I have also given my thoughtful consideration to the contents of the first information reports and examined the same very minutely within the parameters of inherent powers under Section 482, Cr. P.C. It is true that this Court in exercise of its inherent powers under Section 482, Cr.P.C. should normally not interfere with the investigation under progress, or where the case is pending trial before the Court at interlocutory stage. However, this does not prevent this Court to exercise its inherent powers in appropriate cases if exercise of such powers is just and proper within the guiding principles of law enunciated in a catena of decision of the Apex Court to prevent abuse of process of any Court or law or otherwise to secure the ends of justice. It is also well settled that the inherent powers at interlocutory stage should be exercised sparingly with great caution and circumspection in .rare/cases only and that too with a view to prevent illegality or where some miscarriage of justice or abuse of process of law has occasioned to the aggrieved party.
17. I am fortified by the observations of the Apex Court made in Pepsi Foods Ltd. v. Special Judicial Magistrate (1997) 4 Crimes 212 : 1998 Cri LJ 1, wherein the question which had arisen for consideration was as to whether the powers conferred on the High Court under Article 226 and 227 of the Constitution of India and Section 482, Cr. P.C. have any limits and whether the petitioners are entitled to seek relief of quashing of the complaint filed against them under Section 7/16 of the Prevention of Food Adulteration Act. The Apex Court after having examined rival contentions advanced by the learned counsel for the parties held that the exercise of such powers would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure ends of justice. It was further observed that one of such guidelines is, where the allegations made in the FIR or complaint, even' if they are taken at their face value and accepted on their entirety, do not prima facie constitute any offence or make out a case against the accused. The Apex Court also observed that nomenclature, under which petition is filed is not quite relevant, and that does not debar the Court from exercising its jurisdiction, which otherwise it possesses unless there is special procedure prescribed which is mandatory. It has further been held as under (Para 29 of Cri LJ)
No doubt the Magistrate can discharge the accused at any stage of the trial, if he considers the charge to be groundless, .but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial.' It was further observed (Para 22 of Cri LJ):
19. It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 : 1992 Cri LJ 527, this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. While laying down certain guidelines where the Court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. One of such guildeline is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code, it may not always be necessary to invoke the provisions of Article 226.' Hence in my view, nomenclature under which petitions are filed is not quite relevant and that does not debar the Court from exercising the jurisdiction which otherwise it possesses unless there is special procedure prescribed by a legislation, which is mandatory.
18. In State of Haryana v. Ch. Bhajan Lal AIR 1992 SC 604 : 1992 (2) Supp (1) SCC 335 : 1992 Cri LJ 527, relied upon by the learned counsel for the complainant, the question which had arisen for consideration was in the context of the commission of cognisable offences and safeguards, which the police should have observed before the commencement of the investigation, which is subjected to two conditions (i) police officer should have reason to suspect commission of cognizable offence; (ii) he has to subjectively satisfy himself as to existence of sufficient ground for entering on investigation even before he starts an investigation into the facts and circumstances of the case as contemplated under Clause (b) of the proviso to Section 157(1), Cr. P.C. In this context, the Apex Court observed that in following category of cases, the High Court may in exercise of its powers under Article 226 of the Constitution or Section 482, Cr. P.C. interfere in the proceedings relating to the cognizable offences to prevent abuse of process of any Court or otherwise to secure ends of justice with the rider that the power should be exercised sparingly and that too in the rarest of rare cases :-
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused,
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) 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.
(4) 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.
(5) 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.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provisions in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge.
(8) Where allegations in the complaint did not constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.
19. Applying the ratio of aforesaid decisions of the Apex Court, I am of the considered opinion that the allegations made in the first information reports against the petitioners even if they are taken at their face value and accepted in their entirety, prima facie do not constitute any offence within the ambit of the provisions of the aforesaid Acts and Sections 420/120B, IPC nor they make out any case regarding culpability of the petitioners for the alleged offences.
20. This is not a case of infringement of any trade mark or Copyright Act, but the dispute, if any, is with regard to sale of articles in the territorial areas 'earmarked' for the complainant party for which the petitioners cannot be held responsible. It is not the prosecution case that any counterfeit trade mark has been used by the accused. The F.I.Rs. also do not make out any case because in view of Sections 78 and 79 of the Act, 1958 read with Sections 420 and 120B, IPC are wholly inapt. Therefore as the undisputed allegations made in the first information reports do not disclose commission of any offence nor any documentary evidence has been placed on record by the complainant-Firm which may prima facie establish the commission of cognizable offences within the ambit of the Acts or Sections 420 and 120B, IPC by the petitioners, nor there is any evidence showing that the petitioners are partners of the said Firm and have committed any of the specified offences as partners of the Firm nor there is any evidence to establish that the petitioners had committed violation of the trade mark of the complainant-Firm, hence, in my view, it will be grossly improper and unjust to allow the police to continue with the investigation in the aforesaid FIRs, as it would not only result in miscarriage of justice besides cause undue harassment to the petitioners resulting in abuse of process of the Court, and, therefore, it would not secure ends of justice in allowing the investigation to continue since prima facie the FIRs do not disclose commission of any cognizable offence alleged therein against the petitioners. On the contrary, if the investigation is allowed to continue, the possibility of vexatious prosecution and the resultant damage to the good-will and reputation of the petitioners which they may have established in their business by influx of time cannot be ruled out. Therefore, it is an appropriate case in which this Court should not hesitate in exercise of its inherent powers under Section 482, Cr.P.C. to quash the FIRs.
21. From perusal of the FIRs as also the contentions advanced by the learned counsel for the complainant it is apparent that it is not the case of the complainant that the petitioners have either violated or falsified any trade mark or falsely applied to goods any trade mark or have made or disposed of and have in their possession any die, block, machine, plate or other instrument for the purpose of falsifying, or of being used for falsifying a trade mark; or applied any false trade description to goods, to which an indication of the country or place in which they were made or produced or the name and address of the manufacturer or person for whom the goods are manufactured is required to be applied under Section 117, a false indication of such country, place, name or address; or tampered with, altered or effaced an indication of origin which has been applied to any goods to which it is required to be applied under Section 117 of the Act of 1958 or have caused any of the things abovementioned in this section to be done. Further it is also not the case of the complainant in the FIRs that as is provided in Section 78 of the Act of 1958, the petitioners have acted while committing the aforesaid offences described in Sub-sections (a) to (g), with intent to defraud with a view to cause wrongful loss to complainant or wrongful gain to themselves. From a perusal of provisions of Sections 78 and 79 of the Act of 1958, which deal with imposition of penalty for selling goods to which a false trade mark of false description is applied, it is apparent that the ingredients of said provisions of the Act of 1958 are neither attracted nor applicable to the present cases, and therefore, the petitioners cannot be held liable for these offences.
22. As regards provisions of Section 63 and 64 of the Copyright Act, I may like to state that these provisions are attracted in those cases only, where only persons intentionally infringes or abets the infringement of (a) the copyright in a work, or (b) any other right conferred by this Act, and where the Magistrate has taken cognizance of any offence under Section 63 in respect of the infringement of copyright in any work, it shall be lawful for any police officer, not below the rank of Sub-Inspector, to seize without any warrant from the Magistrate, all copies of the work wherever found, which appear to him to be infringed copies of the work and all copies so seized shall, as soon as practicable, be produced before the Magistrate. However, under Sub-section (2) of Section 64 of the Copyright Act, the person aggrieved by such seizure may within fifteen days apply to the concerned Magistrate for restoration of seized articles and the Magistrate may after hearing the complainant make an order after making such further inquiry as may be necessary. Thus, in my view, provisions of the aforesaid Acts which provides special mechanism to be followed by the investigating agency as well as by the Court* do not constitute any commission of any offence by the petitioners since bona fide purchasers for consideration like the petitioners cannot be held liable for infringement of any such provisions, referred to above, which may amount to violation of the copyright of the complainant's goods nor they can be said to have falsified any trade mark or tampered with the same or have used with intent to defraud the complainant (sic) the trade mark of his Firm dealing with manufacture to brand name 'Lungar Bidis'. Hence in the absence of the ingredients contemplated in aforesaid provisions of the Acts of 1957 as also 1958 and the Penal Code, which are not attracted to the present cases, it will be wholly improper and
grossly unjust to allow the investigation to continue which has so far proceeded on erroneous assumption by the investigating agency that the petitioners have been using the trade mark of complainant-Firm on their goods which is lacking as would be evident from the contents of the FIRs, no documentary evidence worth any credence has been placed on record wherefrom any such conclusions can be drawn attributing commission of any of the offences referred to therein against the petitioners.
23. In the result, S. B. Cr. Misc. Petition Nos. 593/98, 594/98, 616/98, 617/98 and 618/98 and S. B. Criminal Revision Petition Nos. 425/98 and 426/98 are hereby allowed. F.I.R. Nos. 86/98 dt. 4-7-98 PS Raniwara, 67/98 dt. 5-2-98 PS Sayala, 102/98 dt. 15-5-98 PS Sanchore, 110/98 dt. 28-4-98 PS Ahore, and 106/98 PS Jalore and the investigation therein are hereby quashed and set aside; The impugned orders dated 5-6-98 and 10-7-98 passed by the Judicial Magistrates, Jalore and Raniwara, respectively are also quashed and set aside. Since the FIR Nos. 67/98 PS Sayala and 86/98 PS Raniwara have been quashed, as indicated above, the goods seized under these FIRs be released forthwith in favour of the petitioners, from whom they have been seized.