Dau Dayal vs The State Of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 118 of 1958

Decision Date: 24 November 1958

Coram: P.B. Gajendragadkar, A.K. Sarkar, T.L. Venkatarama Aiyar

In the case titled Dau Dayal versus The State of Uttar Pradesh, the Supreme Court of India delivered its judgment on 24 November 1958. The bench hearing the matter consisted of Justice P. B. Gajendragadkar, Justice A. K. Sarkar and Justice T. L. Venkatarama Aiiyara. The citation for the decision appears as 1959 AIR 433 and 1959 SCR Suppl. (1) 639, with a further reference to E 1966 SC1820 (7,8). The case concerned an offence under the Indian Merchandise Marks Act of 1889, specifically section 15, which imposes a limitation period of one year for initiating prosecution. The factual background recorded that on 26 April 1954 the appellant was arrested by the Sisamau Police for alleged violations of sections 420, 482, 483, 485 and 486 of the Indian Penal Code, based on the claim that he possessed counterfeit bidis, wrappers and labels bearing falsified trade marks. A formal complaint against the appellant was filed on 26 May 1954 by an individual acting on behalf of certain merchants, seeking registration of a case and investigation of the alleged counterfeiting. Following the police investigation, a charge‑sheet was submitted on 30 September 1954 and a summons was issued to the appellant on 22 July 1955. The appellant subsequently raised a preliminary objection before the magistrate, arguing that the prosecution was barred by section 15 because the offence had been discovered on 26 April 1954 and the process of issuing summons occurred on 22 July 1955, which he claimed exceeded the one‑year limitation. The Court held that the limitation period begins at the date of presentation of the private complaint, not at the later issuance of process, and therefore the prosecution was not barred. It emphasized that, absent any contrary provision, the commencement of prosecution is marked by the filing of the complaint, and that the limitation period operates against the complainant rather than the court. The Court further warned that interpreting the provision to require process issuance within one year would defeat the purpose of the Act and deny traders the protection intended by the legislation. Counsel for the appellant and counsel for the respondent presented their respective arguments before the Court, which ultimately affirmed that the prosecution could lawfully proceed.

In this case, the appellant had been arrested on 26 April 1954 by the Sisamau Police on allegations that he possessed twenty‑five packets of Chand Chhap Biri that allegedly bore counterfeit trade marks, thereby violating sections 420, 482, 483, 485 and 486 of the Indian Penal Code. On 26 May 1954 a person named Harish Chandra Jain, acting on behalf of Messrs Mohan Lal and Hargovind Das, filed a criminal complaint asserting that the appellant was in possession of counterfeit bidis, their wrappers and labels, and requested that a case under the aforementioned penal sections be registered and investigated. The magistrate, upon receiving the complaint, issued an order directing the Sub‑Inspector of Sisamau to investigate the matter and to register a case. Following the investigation, the police prepared and submitted a chargesheet on 30 September 1954, and subsequently a summons was ordered against the appellant on 22 July 1955. On 17 September 1955 the appellant filed an application before the same magistrate raising a preliminary objection that the proceedings were barred by section 15 of the Indian Merchandise Marks Act, 1889. That provision states that no prosecution may be commenced after the expiration of three years from the commission of the offence or one year from the first discovery thereof by the prosecutor, whichever period expires first. The appellant argued that the offence was discovered on the date of his arrest, 26 April 1954, when the goods were seized, and therefore the issuance of process on 22 July 1955 occurred beyond the one‑year limitation prescribed by section 15, requiring the proceedings to be dismissed as time‑barred. The magistrate rejected this contention, and the appellant’s revision petition against that order before the Additional Sessions Judge at Kanpur was similarly dismissed. The appellant then pursued a further revision petition before the Allahabad High Court, recorded as Criminal Revision No. 1594 of 1956, which was heard together with other analogous petitions by a bench comprising Justices James and Takru. By their judgment dated 13 May 1958, the learned judges held that the prosecution was deemed to have commenced on the date the complaint was presented, namely 26 May 1954, and since the discovery of the offence had occurred on 26 April 1954, the proceedings fell within the limitation period prescribed by section 15 of the Act. Recognising the significance of this legal question, the High Court granted leave to appeal to the Supreme Court under article 134(1)(c) of the Constitution, and the matter therefore reached this Court. The specific issue for determination was the appropriate point at which a prosecution begins for the purpose of applying section 15 of the Act: whether it is the date on which a private complaint is filed or the date on which formal process is issued. The Act provides no definition of “prosecution,” nor does it contain any provision that directly addresses this question. In the absence of a statutory definition, the general legal principle, as reflected in Halsbury’s Laws of England, holds that where a private prosecutor initiates proceedings, the prosecution is considered to have commenced at the moment the complaint is preferred.

In the learned report on page 340, paragraph 630, it was explained that, except where a statute expressly provides otherwise, a criminal prosecution may be begun at any time after the offence has been committed. The report further clarified that a prosecution is considered to have begun when an information is presented before a magistrate, or, if no information is filed, when the accused is brought before a magistrate to answer the charge, or, if there is no preliminary examination before a magistrate, when an indictment is lodged.

The commentary added that different statutes prescribe different limitation periods within which a prosecution may be initiated after the commission of the offence. It noted that the Merchandise Marks Act of 1887, which is the counterpart of the Indian Merchandise Marks Act of 1889, prescribes a limitation period of three years for offences under that legislation. Consequently, it is settled law that, unless a statute provides a contrary rule, the date on which a private complaint is filed marks the commencement of the prosecution.

The Court then turned to the question of the character of the prosecution contemplated under section 15 of the Act. To illuminate this point, the relevant provisions of sections 13 and 14 of the Act were reproduced. Section 13 provides that, in cases where goods have been imported into India by sea, evidence of the port of shipment shall, in a prosecution for an offence against this Act or against section 18 of the Sea Customs Act 1878 as amended, constitute prima facie evidence of the place or country in which the goods were manufactured or produced. Section 14(1) states that, in any prosecution referred to in the preceding section or in any prosecution for an offence under any provision of the Indian Penal Code as amended by this Act that relates to trade, property or other marks, the Court may order costs to be paid to the defendant by the prosecutor or to the prosecutor by the defendant, taking into account the information supplied and the conduct of the parties. Section 14(2) adds that such costs, upon application to the Court, may be recovered as if they were a fine.

The purpose of these provisions is to safeguard the rights of persons who manufacture and sell goods bearing distinctive trade marks against unauthorized use or counterfeit imitation by others. While the ordinary remedy for such infringement lies in civil litigation, the Court recognised that civil proceedings can be protracted and that a delay in enforcing the rights of manufacturers may cause serious injustice. Accordingly, the legislation permits the aggrieved party to bring the matter before the criminal courts and to prosecute the infringers, thereby providing a more immediate and effective means of vindication. For this reason, a relatively short limitation period is prescribed for the filing of a complaint under section 15, and a special provision also exists for the award of costs in such proceedings, although the text of that provision is truncated in the present excerpt.

In the earlier decision of Ruppell v. Ponnuswami Tewan (1), the Court was asked to determine whether a prosecution that had been instituted by the complainant in the year 1898 concerning goods that were sold and marked in 1893 with an alleged counterfeit trade mark was filed within the period allowed by law. The Court concluded that the prosecution was barred by section 15 of the Merchandise Marks Act IV of 1889. The Court explained that section 15 provides that no prosecution of the present kind may be commenced after the expiry of one year from the date on which the prosecutor first discovers the offence. The Court further observed that the purpose of this limitation is evident. Generally, an infringement of a trade mark is treated more as a civil wrong than a criminal offence; however, civil proceedings often require considerable time and expense before they reach a final determination. To protect traders from the delay inherent in civil litigation, the Legislature, motivated by a desire to safeguard commercial interests, permitted aggrieved parties to approach the criminal courts so that a swift remedy could be obtained, provided the complainant acted diligently and did not, by his own conduct, indicate that the matter was not urgent. Consequently, if the aggrieved person does not approach the criminal courts within one year after becoming aware of the offence, the law presumes that the matter lacks urgency and therefore directs the complainant to seek the ordinary civil remedy of an injunction.

The Court noted that the statute requires the complainant to bring the matter before the court within one year of discovering the offence in order to benefit from the provisions of the Act. This requirement means that when the complaint is filed within the one‑year period following discovery, the conditions of section 15 are fulfilled. The limitation period, the Court emphasized, is intended to operate on the complainant, compelling him to act with diligence in protecting his rights, and is not aimed at the court itself. To interpret the provision otherwise—by insisting that the issuance of process must also occur within one year of discovery—would frustrate the purpose of the legislation and deprive traders of the protection the law was designed to afford. It would be an undesirable state of the law if a trader whose rights had been infringed, and who promptly presented the matter before the criminal court, were nevertheless denied redress because of a delay in the court’s issuance of process. The appellant, relying on certain authorities, argued that a prosecution should be deemed to commence only when process is issued, not when the complaint is filed. The appellant cited the cases of Sheik Meeran Sahib v. Ratnavelu Mudali (1), De Rozario v. Gulab Chand Anundjee (2) and Golap Jan v. Bholanath Khettry (3) to support this position, contending that the issue was whether an action for damages for malicious prosecution could arise when a complaint was dismissed without notice to the plaintiff. The Court, however, held that those decisions, which concerned the existence of a prosecution in the context of damages for malicious prosecution, were not applicable to the question before it, which focused on when a prosecution under the Merchandise Marks Act is instituted.

The Court explained that a plaintiff could not be said to have been prosecuted unless a formal process had been issued to him, and that where a complaint was dismissed without such process, there was no prosecution and consequently no cause of action for damages based on that prosecution. The Court therefore held that the earlier decisions cited by the appellant did not affect the question before it. In actions for damages for malicious prosecution, the Court noted, the essential issue is whether the plaintiff was actually prosecuted; once that fact is established, the question of when the prosecution began does not arise. By contrast, in a prosecution brought under the statute, the critical issue is not whether a prosecution existed but the date on which it was instituted, and a consideration of the existence of a prosecution is wholly irrelevant. The Court further observed that, in a malicious‑prosecution claim, when it is determined that a prosecution did occur, it is proper to regard the commencement of that prosecution as the date the complaint was filed, not the date on which process was issued, citing the observations of Woodroffe, J. in the arguments of Golap Jan v. Bholanath Khettry at page 884. Accordingly, the decisions in Sheik Meeran Sahib v. Ratnavelu Mudali (1), De Rozario v. Gulab Chand Anundjee (2) and Golap Jan v. Bholanath Khettry (3) were held not to illuminate the matter presently before the Court. The Court allowed that those decisions might need to be reconsidered in light of the recent Privy Council judgment in Mohamed Amin v. Jogendra Kumar Bannerjee (4), which declared that the relevant test is not whether the criminal proceedings have reached a stage that may be described as a prosecution, but whether they have progressed to a point where damage to the plaintiff has occurred, and referred to Ramaswami Iyer’s commentary on The Law of Torts, fourth edition, page 318. The Court also addressed the decision in R. R. Chari v. The State of Uttar Pradesh (1), which the appellant had relied upon to argue that no prosecution existed until a process was issued. In that case, the appellant had been proceeded against under the provisions of the Prevention of Corruption Act No. 2 of 1947. The Deputy Magistrate of Kanpur had issued a warrant for his arrest on 22 October 1947, and subsequently, on 6 December 1948, the prosecution secured the sanction required by the Act. The appellant contended that the prosecution should be deemed to have been instituted on the date of his arrest, arguing that the absence of sanction at that time rendered the proceedings invalid, and that the later acquisition of sanction did not cure the defect. The Court held, however, that under the special provisions of the Prevention of Corruption Act, the police possessed the authority to arrest the appellant pending further proceedings, and that the arrest did not, by itself, constitute the institution of a prosecution.

In the earlier case, the Court explained that the order issued by the Deputy Magistrate on October 22, 1947, merely empowered the police to continue their investigation and that such an order did not, by itself, constitute the commencement of a prosecution on the date of the arrest. In the present matter, however, the proceedings arise from a private complaint rather than a government‑initiated prosecution. As noted on page 315 of the Report, section 190(1)(a) of the Criminal Procedure Code applies to private complaints, and consequently the magistrate is deemed to have taken cognizance of the offence at the moment he receives the complaint. The Court observed that this principle does not aid the appellant, and it also does not receive support from the decision in Gopal Marwari v. King‑Emperor (2). In that decision, the learned judges considered sections 200 and 202 of the Criminal Procedure Code and pointed out a clear distinction between the mere initiation of proceedings before a magistrate and the magistrate’s actual taking of cognizance of those proceedings. The present question, which the Court needed to resolve, turned on the wording of section 15 of the Act that is under consideration on appeal. According to that provision, a private “prosecutor” must prefer the complaint within one year of discovering the offence; if this time limit is complied with, the bar created by section 15 cannot be invoked. The Court therefore agreed with the earlier judges that the proceedings are not barred by section 15 of the Act. As a result, the appeal was dismissed, and the order of dismissal stands.