Dau Dayal Vs. The State of Uttar
Pradesh  INSC 120 (24 November 1958)
AIYYAR, T.L. VENKATARAMA GAJENDRAGADKAR, P.B.
CITATION: 1959 AIR 433 1959 SCR Supl. (1) 639
CITATOR INFO :
E 1966 SC1820 (7,8)
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.
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
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.
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 trademarks. 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 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 prosecution 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 presentation thereof that marks the commencement of
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 trademarks 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 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
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) 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
(1) (1912) I.L.R. 37 Mad. 181 (2) (1910)
I.L.R. 37 Cal.
(3) (1911) I.L.R. 38 Cal. 890. (4) 
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. 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)  S.C.R. 312.
(2) (1943) I.L.R. 22 Pat433.
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.