SRI. RAGHUNATH ANANDA ROKHADE v. THE STATE OF KARNATAKA

(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T) Heard Shri Ramachandra A. Mali., learned counsel for the petitioner and Smt. Kirtilatha Patil., learned High Court Government Pleader for respondent – State.

#2. The petitioner – accused has filed this petition under Section 482 of Cr.P.C., [528 of BNSS, 2023], praying entire proceedings C.C.No.1502/2021, on the file of learned Civil Judge and JMFC, Raibag, for the offences punishable under Sections 420 of IPC and Section 65 and 68 of the Copyrights Act,

#3. Learned counsel appearing for petitioner would submit that a co-ordinate bench of this Court, in identical circumstances, in Crl.P.No.2080/2023 disposed on

19.06.2024 and Crl.P.No.6096/2016 disposed

28.02.2019 has precisely answered the issue inter alia, - 3 - NC: 2025:KHC-D:9134 CRL.P No. 102679 of 2025 HC-KAR that without obtaining prior permission as obtaining under Section 115(4) of the Trade Marks Act, 1999 if the complaint is registered, it would become an act contrary to law. The co ordinate Bench has held as follows:  “…. …. ….

#2. Petitioner has sought to quash the FIR in Crime No.148/2015 registered for the offences punishable under Sections 51(1), 51(b) and 63 of the Copyright Act, 1957 consequent charge C.C.No.15917/2016.

#3. Learned counsel appearing for the petitioner would submit that the allegations made in the complaint and in the charge sheet would make out the offences only under sections 103 and 104 of the Trade Marks Act, 1999 and not under the provisions of Copyright Act,1957. Section 115 of the Trade Marks Act empowers a police officer not below the rank of Deputy Superintendent of Police of equivalent rank, the power to search and seizure without any warrant, the goods, dye, block, machine, plate, other instruments or things involved in committing offences. In the instant case, search and seizure was carried out by the Inspector of Police, CCB (F & M), contrary to the prescription contained in Section 115 of the Trade Marks Act. Therefore, the procedure followed by the Respondent – - 4 - NC: 2025:KHC-D:9134 CRL.P No. 102679 of 2025 HC-KAR police being opposed to the provisions of the Trade Marks Act, the impugned proceedings are bad in law and are liable to be quashed.

#4. He further submits the material collected by the Investigating agency does not make out any of the offences under Sections 51(1), 51(b) and 63 of the Copyright Act and Section 420 r/w 34 of IPC. Therefore, on this ground also, impugned proceedings are liable to be quashed.

#5. Learned SPP-II appearing Respondent-State does not dispute the fact that the allegations made in the charge sheet do not satisfy the ingredients of offences punishable under Sections 51(1), 51(b) and 63 of the Copyright Act, 1957 and that the offences made out in the charge sheet fall under the provisions of the Trade Marks Act.

#6. In order to appreciate this controversy, it is pertinent to note that the substance of accusations against the petitioner is that the petitioner herein was found in possession of 900 shirts, 200 pants, 30 T-shirts bearing the label of Allen Solly, 20 shirts of Van Heusen, 40 shirts of Peter England and 30 shirts of Louis Philippe Brand. Specific allegation against the petitioner is that he was indulging in the sale of the said counterfeit goods and thereby caused a loss of Rs.13,50,000/-to the above companies. - 5 - NC: 2025:KHC-D:9134 CRL.P No. 102679 of 2025 HC-KAR

#7. Charge sheet is filed for the offences punishable under Sections 51(1), 51(b) and 63 of the Copyright Act, 1957. As per Section 13(1) of the Copyright Act, Copyright could be claimed only on the following classes of works namely; (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; (c) sound recording. Sub-section (2) of section 13 of Copyright Act provides that, “Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of Section 40 or section 41 apply, unless.- “(i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India; (ii) in the case of an unpublished work other than [work of architecture], the author is at the date of the making of the work a citizen of India or domiciled in India; and - 6 - NC: 2025:KHC-D:9134 CRL.P No. 102679 of 2025 HC-KAR (iii) in the case of [work of architecture], the work is located in India”.

#8. It is not the case of the prosecution that the petitioner is claiming any copyright in the goods found in his possession or that he has been manufacturing shirts or pants containing the Brand names Allen Solly, Van Heusen or Louis Philippe. The specific case of the prosecution is that he was found selling counterfeit goods containing the labels of different brands. These facts do not amount to infringement of copyrights within the meaning of Copyright Act, 1957. From the facts averred in the FIR, the petitioner is seen to have committed the offences punishable under section 104 of Trade Marks Act, 1999 and not under sections 51 and 63 of the Copyright Act, 1957 as alleged in the FIR.

#9. Section 104 of the Trade Marks Act, 1999 provides for penalty for selling goods bearing trade marks. Section reads as under:- “104. Penalty for selling goods or providing services to which false trade mark or false trade description is applied. — Any person who sells, lets for hire or exposes for sale, or hires or has in his possession for sale, goods or things, or provides or hires services, to which any false trade mark or false trade description is applied or which, being required under section 139 to have applied to them an indication of the country or place in - 7 - NC: 2025:KHC-D:9134 CRL.P No. 102679 of 2025 HC-KAR which they were made or produced or the name and address of the manufacturer, or person for whom the goods are manufactured or services provided, as the case may be, are without the indications so required, shall, unless he proves,— (a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of commission of the alleged offence no reason to suspect the genuineness of the trade mark or trade description or that any offence had been committed in respect of the goods or services; or (b) that, on demand by or on behalf of the prosecutor, he gave all the information in his power with respect to the person from whom he obtained such goods or things or services; or (c) that otherwise he had acted innocently, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees”. - 8 - NC: 2025:KHC-D:9134 CRL.P No. 102679 of 2025 HC-KAR

#10. Section 115 of the Trade Marks Act, 1999 provides for the procedure for taking cognizance of the offences committed in relation to the trade marks. Sub sections (3) and (4) of section 115 which are relevant for our purpose read as under:-

#115. Cognizance of certain offences and the powers of police officer for search and seizure.— … (3) The offences under section 103 or section 104 or section 105 shall be cognizable. (4) Any police officer not below the rank of Deputy Superintendent of Police or equivalent, may, if he is satisfied that any of the offences referred to in sub-section (3) has been, is being, or is likely to be, committed, search and seize without warrant the goods, dye, block, machine, plate, other instruments or things involved in committing the offence, wherever found, and all the articles so seized shall, as soon as practicable, be produced before a Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be: Provided that the police officer, before making any search and seizure, shall obtain the opinion of the Registrar on facts involved in the offence relating to trade mark and shall abide by the opinion so obtained. - 9 - NC: 2025:KHC-D:9134 CRL.P No. 102679 of 2025 HC-KAR From the above provision it is clear that only the police officer not below the rank of Deputy Superintendent of Police, if he is satisfied that an offence under sections 103 or 104 or 105 has been committed or is likely to be committed, he may search and seize goods, dye, block, machine, plate etc., without warrant. In the instant case, the search and seizure has been conducted by the Sub Inspector or Police contrary to the mandate. Thus the mandatory provisions of the Trade Marks Act, 1999 have not been complied with. Therefore, registration of the FIR and consequent investigation thereon is vitiated.

#11. Even with regard to the offence under section 420 of Indian Penal Code is concerned, there is no complaint from any person or consumers that they have been cheated by the purchase of pants and shirts from the complainant. Therefore, from the facts averred in the complaint, even the ingredients of section 420 of Indian Penal Code are not made out. Consequently, registration of the FIR and the consequent investigation against the petitioner for the alleged offences cannot be sustained. Accordingly, the petition is allowed. FIR in Crime No.148/2015 of Thyagarajanagar Police Station and the consequent proceedings in C.C.No.15917/2016 on the file of IX Additional Metropolitan Magistrate, Bengaluru are quashed.” - 10 - NC: 2025:KHC-D:9134 CRL.P No. 102679 of 2025 HC-KAR

#4. In the light of the issue standing answered, as admittedly, there is no permission taken or granted from the hands of the Deputy Superintendent of Police, as necessary under Section 115(4) of the Trade Marks Act, the petition deserves to succeed.

#5. For the aforesaid reasons, the following: (i) (ii) ORDER Criminal Petition is allowed. The entire proceedings in C.C.No.1502/2021, pending before learned Civil Judge and JMFC Court, Raibag, insofar as the petitioner is concerned, stands quashed. Sd/- (VENKATESH NAIK T) JUDGE AM/- CT-AN List No.: 1 Sl No.: 20