High Court | Courts & Cases

Judgment

1. Heard Shri Satyaveer Singh, learned Amicus Curiae, along with learned counsel for the applicant, learned A.G.A. for the State- respondent, and perused the material available on record.

2. The applicant has challenged the summoning order dated

29.04.2022 passed in Case No. 10849 of 2022, which is pending trial before the learned Chief Judicial Magistrate, Gorakhpur. The applicant has also prayed to quash the impugned charge-sheet no. 1/2021, filed in connection with Case Crime No.0395 of 2021, registered under Section 420 IPC, read with Sections 63 and 65 of the Copyright Act, 1957.

3. In brief, the prosecution's case is that the applicant is the proprietor of a retail paint shop operating under the name Krishna Hardware Paints Centre, located at Shanti Nagar, Bichhiya, District Gorakhpur and on spot inspection by the officers of the authorised company, the applicant was found selling counterfeit Asian Paints products, and huge quantity of counterfeit paints have been recovered from the applicant's shop. Whereas the applicant's case is that she had procured paint products from a wholesale distributor, namely Force Trading, situated at Dharamshala Bazar, Gorakhpur, through valid tax 2 invoices/receipts issued at the time of purchase. The paints were sold from the applicant's retail outlet in the ordinary course of business.

4. Learned counsel for the applicant submitted that the applicant had no knowledge or reason to believe that the paint products or packaging received from the wholesaler were counterfeit or adulterated. The alleged presence of counterfeit paint boxes only came to light during a raid conducted by the authorised representative of the complainant's company at the applicant's shop.

4.1 Even assuming the allegations to be true on their face, the essential ingredients required to constitute an offence under Section 420 IPC read with Sections 63 and 65 of the Copyright Act, 1957, are not satisfied. There is no dishonest intention or mens rea attributable to the applicant, nor any act of infringement knowingly committed by her. Thus, the continuation of the criminal proceedings against the applicant is a gross abuse of the process of law, as the statutory prerequisites for invoking the said penal provisions are clearly absent in the present case.

5. Per contra, learned A.G.A. submitted that during a spot inspection conducted at the applicant's premises by the authorised representative of SGS IPR Consultancy- the complainant- a substantial quantity of counterfeit Asian Paints products was recovered, indicating that the applicant was deriving significant illegal profit. As regards the applicant's knowledge and intention to earn such profit, these matters are to be examined during trial and can only be determined after the prosecution witness has deposed. At this stage, the veracity and probative value of the prosecution's evidence cannot be assessed and placed reliance on the principle laid down in State of Haryana v. Bhajan Lal1. 1 1992 Suppl. (1) 335 3

6. In the given facts and circumstances, the applicant was afforded an opportunity to address the merits of the case. However, learned counsel for the applicant has submitted that unless the trial court proceedings are stayed at the very outset during the pendency of the present petition, the applicant would be compelled to surrender before the trial court, be remanded to judicial custody, and only thereafter her bail application would be considered on merits. Although the applicant was not arrested during the investigation. Such a course of action, it is submitted, runs contrary to the established jurisprudence governing bail post-filing of a charge sheet within the criminal justice system, and the whole purpose of filing the present petition would be frustrated.

7. To address the issue raised herein, Shri Satyaveer Singh, learned Advocate present in court, voluntarily offered to assist. Accordingly, he has been appointed as Amicus Curiae to assist the court in facilitating a just and logical conclusion of the matter.

8. The present petition is one among several wherein the applicant(s) seek a limited relief- namely, to be permitted to appear before the trial court to face trial without being taken into judicial custody. Alternatively, the applicant(s) prays that the application(s) be disposed of with an observation or direction permitting the

applicant(s) to file an application for discharge before the trial court, without the risk of being remanded to custody during the pendency or consideration of such application.

9. This court has observed a recurring and concerning trend in applications filed under Section 482 Cr.P.C. (corresponding section 528 of BNSS, 2023), wherein, barring a few instances where arguments are addressed on merits, most of such applications are filed prematurely. These applications are accompanied only by the FIR, bail orders, and the police report filed under Section 173 Cr.P.C. (corresponding section 193 of the BNSS, 2023), but are notably 4 deficient in essential documents such as the statements of witnesses recorded under Sections 161 and 164 of the Cr.P.C. (corresponding sections 180 & 183 of the BNSS), seizure memos, site plans, or other incriminating material evidence relied upon by the police. This appears to be a consequence of such petitions being instituted before the stage contemplated under Section 207 of Cr.P.C. (corresponding section 230 of the BNSS, 2023)- i.e. supply to the accused(s) of the copy of police report and other documents.

10. It has been consistently observed that applications under section 482 Cr.P.C. (corresponding section 528 of the BNSS, 2023), are routinely filed before this Court immediately after the trial court takes cognisance and issues summoning orders. In such applications, litigants primarily seek quashing of the charge-sheet and setting aside of the cognizance order passed upon its filing. The underlying objective behind such applications appears, more often than not, to be the avoidance of judicial custody during trial or the securing of interim relief aimed at staying Non-Bailable Warrants (NBWs) or proceedings initiated under Sections 80 to 83 of Cr.P.C. (corresponding sections 82(1) to 85 of the BNSS, 2023) - reliefs which, in substance, are in the nature of final reliefs.

11. It is further observed that, on any given working day, approximately 350 to 500 cases are listed before this Court, and nearly 50 to 75 learned advocates make oral mentions of their matters, expressing apprehensions that, if their petitions are not taken up on that very day, the concerned trial courts may issue Non-Bailable Warrants (NBWs) against their clients or commit them to judicial custody. This concern is frequently raised even in cases where the charge-sheet has been filed without arresting the accused, and where the accused has fully cooperated during the investigation. It is pertinent to note that, in such cases, the investigating agency often either chooses not to arrest the accused at all, or the accused secures 5 anticipatory bail till the filing of the charge-sheet. In some instances, the accused also obtains interim protection in the form of a "no coercive action" order by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, until the conclusion of the investigation – a routine practice.

12. Surprisingly, there is another disturbing trend, in most of such cases, learned counsel do not press for quashing of the charge-sheet on merits. Instead, the primary concern appears to be securing an order from this Court that the petition be disposed of with liberty to the accused to raise all permissible legal and factual contentions at the stage of arguments on the application for discharge before the trial court. Such liberty is, as a matter of practice, invariably sought and granted by the High Court, along with protection to the accused from being taken into judicial custody upon appearance before the trial court in compliance with a summons issued pursuant to cognizance, for a limited period of a couple of weeks or so. However, this relief, though commonly granted, neither fulfils the requirements of law nor provides any substantive benefit to the litigants.

13. It is also commonly observed that in cases where the police have not arrested the accused during investigation and have filed the charge-sheet without custodial interrogation, the prevailing practice in the trial courts is to require the accused, nonetheless, to undergo, even if briefly, judicial custody in order to obtain regular or anticipatory bail after cognizance is taken. As a result, to avoid incarceration, the accused is compelled to file a fresh anticipatory bail application- either before the Court of Sessions or the High Court. If such anticipatory bail is not granted, the accused is then left with no option but to surrender before the trial court, whereupon they are remanded to judicial custody until a regular bail order is passed or approach the High Court under section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for limited purpose discussed herein above, 6 generally. This practice persists regardless of the fact that the accused was either on bail during the investigation or that the investigating agency did not find it necessary to arrest the accused at any stage before the filing of the charge-sheet.

14. This prevailing practice, which often results in the accused being compelled to spend anywhere from a month to several years in judicial custody, is neither sanctioned by law nor aligned with the principles consistently laid down by the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab2, Sushila Aggarwal v. State (NCT of Delhi)3, Siddharth v. State of U.P.4 and Satender Kumar Antil v. CBI5. Despite the settled legal position discouraging unnecessary pre-trial incarceration, this deviation has continued unabated and remains widely prevalent across district courts in Uttar Pradesh, without effective checks or corrective intervention.

15. In order to appreciate the gravity of the issue, it is essential to examine the procedural framework followed by trial courts in cases where the charge-sheet has been filed without the arrest of the accused during investigation, regardless of the reasons for such non-arrest. At this juncture, the learned Amicus Curiae's submission offers a comprehensive overview of the procedure followed by the trial courts. Upon submission of the charge sheet, the trial court issues a summons to ensure the accused's presence. In accordance with district court practices, the accused has three procedural options, which are outlined as follows:

15.1 First Option– Appearance and Surrender: The accused may choose to appear before the court in response to the summons and surrender. Upon surrender, the accused is invariably taken into custody. A regular bail application is then filed. The court, in turn, 2 3 4 5