Supreme Court of India
P.D. LAKHANI AND ANR.versusSTATE OF PUNJAB AND ANR.
- Citation
- 2008 INSC 508
- Decided
- 22 April 2008
- Disposal
- Case Allowed
- Bench
- S B SINHA
Holding
A complaint under Section 195(1) CrPC may be filed only by the public servant concerned or his superior, and a subordinate officer such as the SHO lacks jurisdiction to file it, rendering the magistrate's cognizance invalid.
Summary
The appellants, owners of Lakhani Rubber Udyog Ltd, lodged a complaint alleging trademark infringement by Saraswati Utpadan Pvt Ltd. The complaint was initially made to the Station House Officer (SHO), who directed the complainant to approach the Senior Superintendent of Police (SSP). The SSP ordered an investigation, which concluded that the complaint was false, and the SHO filed a complaint petition before a magistrate under Section 195(1) CrPC and Section 182 IPC. The High Court dismissed the appellants' challenge, but the Supreme Court held that Section 195(1) permits a complaint only by the public servant concerned or his superior, and a subordinate officer like the SHO cannot file it; consequently, the magistrate lacked jurisdiction. The Supreme Court set aside the High Court’s order and allowed the appeal.
Issues considered
- Whether a Station House Officer can file a complaint under Section 195(1) of the Code of Criminal Procedure when the investigation was ordered by a senior officer.
- Whether a magistrate can take cognizance of an offence under Section 182 IPC based on a complaint filed by an inappropriate public servant.
Legislation cited
- Code of Criminal Procedure, 1973s. 195(1), s. 340(3)
- Indian Penal Code, 1860s. 182
Subjects
Section 195 CrPCcomplaint jurisdictioncontempt of public servantSection 182 IPCmagistrate jurisdictiondelegation of powertrademark infringementfalse complaint
Judgment
[2008] 6 S.C.R. 790
,...~
A P.O. LAKHANI AND ANR.
v.
STATE OF PUNJAB AND ANR.
(Criminal Appeal No. 693 of 2008)
APRIL 22, 2008
B ,... .
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]
Code of Criminal Procedure, 1973 - s. 195(1) -
Jurisdiction to file complaint before Magistrate - Complaint
c lodged to SHO - SHO asked complainant to approach SSP -
SSP ordered investigation - On basis of investigation report,
complaint filed by SHO before Magistrate - Maintainability of
- Held: Not maintainable as s.195(1) permits only an officer
before whom the complaint was filed and who ordered
investigation to be appropriate officer to file complaint
D
"' ...
before Magistrate - Therefore only SSP or his superior
officer had ;urisdiction to file complaint but not subordinate
officer (SHO).
A complaint was lodged by the second appellant to
E SHO against respondent No.2 on the premise that
respondent no.2 was using their trade mark on inferior
goods manufactured by them. He was asked to approach
Senior superintendent of Poiice (SSP). The second
appellant approached SSP with written complaint. In the
F body of the said complaint itself, SSP directed one 'G' to
comply with the said request. The search was conducted
but nothing objectionable was found in the factory. A
report to the said fact was submitted by 'G', In-charge
Special Cell of the CIA.
G Another report was filed by SP (Detective) before the
SSP stating that application by appellant was found to be
false after investigation due to which respondent no.2 had
~..,
lost its goodwill and that the SHO was directed to take
action against the officer of appellant company under
H 790
P.O. LAKHANI AND ANR. v. STATE OF PUNJAB 791
ANDANR.
~-..,
s.182 IPC and that no further action was required on the A
application.
SHO, thereafter filed complaint petition before the
Magistrate that during investigation complaint lodged by
appellant-company was found to be false that the
r"f complaint was given by respondent No.2 to SSP. It was B
investigated by SP. After investigation they found that
complaint filed by appellant was false and they had
directed for necessary action under s.182 IPC.
Appellant filed an application under s.482 Cr.P.C. c
challenging the legality and validity of said report which
was dismissed by High Court.
In appeal to this Court, appellant contended that
having regard to the terminologies used in s.195(1) Cr.P.C.,
.. .:..:·
the complaint petition could have been filed only by the D
SSP or any authority higher in rank to him and in any
event, the Managing Director of appellant-company being
not concerned with the lodgin,Q of the earlier complaint,
the complaint in question was not maintainable against
him. E
Allowing the appeal, the Court
HELD: 1_. S.195 Cr.P.C. provides for prosecution for
contempt of lawful authority of public servant, for offences
against public servant and for offences relating to F
. ..+ documents given in evidence. It contains an embargo
stating that 'no court shall take cognizance of an offence
punishable, under the aforementioned provision except
on the complaint in writing by the public servant
concerned or by some other public servant to whom he G
is administratively subordinate'. 'Contempt of a public
servant' has a definite connotation. Such contempt must
"-e-4 be provided for by law. It must be found to be false. [Para 9]
[797-D, E, F]
2.1. The SHO did not act on the complaint. He asked H
792 SUPREME COURT REPORTS [2008] 6 S.C.R.
A the appellant No.2 to bring the same to the notice of the
SSP, Complaint Branch, which he did. It was, thus, a
complaint to a higher authority. The SSP only had asked
the SP, Detective Branch to enquire into the matter and
report within seven days. 'G', pursuant thereto was asked
B to carry out the necessary search of the premises of the
second respondent. The report of compliance by 'G' was
made to the CIA staff. CIA staff, in turn, placed it before
the SSP. The proceedings, therefore, were, indisputably,
initiated by the SSP and not by the SHO. The SHO would
C have jurisdiction to investigate into the matter provided a
first information report was lodged by him in terms of the
complaint made by the appellant No.2. Whatever action
was taken in the matter was pursuant to the order of the
SSP. The High Court, thus, committed a manifest error in
so far as it held that the as the complaint was addressed
0
to the SHO, he was the appropriate authority to lodge a
complaint in respect of an offence punishable under s.182
IPC. [Para 9-12] [797-F, G; 798-A-E]
2.2. The fact that the search was made pursuant to
E the directions issued by the SSP is not in dispute. S.195
contains a bar on the Magistrate to take cognizance of
any offence. When a complaint is not made by the
appropriate public servant, the Court will have no
jurisdiction in respect thereof. Any trial held pursuant
F thereto would be wholly without jurisdiction. In a case of
this nature, representation, if any, for all intent and purport
was made before the SSP and not before the SHO. No
complaint, therefore, could be lodged before the
Magistrate by the Station House Officer. Even assuming
G that the same was done under the directions of SSP,
s.195, in no uncertain terms, directs filing of an
appropriate complaint petition only by the public servant
concerned or his superior officer. It, therefore, cannot be
done by an inferior officer. It does not provide for
delegation of the function of the public servant concerned.
H
P.O. LAKHANI AND ANR. v. STATE OF PUNJAB 793
AND ANR. [S.S. SINHA, J.]
~ [Paras 12-13] [798-E, H; 799-A] A
3. In terms of sub-section (3) of s.340 Cr.P.C., a
complaint may be signed by such an officer as the High
Court may appoint if the complaint is made by the High
Court. But in all other cases, the same is to be done by
the presiding officer of the court or by such officer of the B
.-~
court as it may authorize in writing in this behalf.
Legislature, thus, wherever thought necessary to
empower a court or public servant to delegate his power,
made provisions therefor. As the statute does not
contemplate delegation of his power by the SSP, it cannot c
be assumed that there exists such a provision. A power
to delegate, when a complete bar is created, must be
express; it being not an incidental power. [Para 13] [799-
B, C, D]
Dau/at Ram v. State of Punjab (1962) 2 SCR 812; State D
.... x of U.P. v. Mata Bhikh & Ors. (1994) 4 SCC 95 - relied on.
CRIMINALAPPELLATEJURISDICTION: CriminalAppeal
No. 693 of 2008.
From the final Judgment and Order dated 17.08.2007 of E
the High Court of Punjab and Haryana at Chandigarh, in Criminal
Misc. No. 62858-M of 2005
K. V. Vishwanathan, Gaurav Kathuria, Gautam Godara and
Ravindra Keshavrao Adsure for the Appellants.
F
.. ....
Rahul Gupta, Gagan Gupta, H.S. Munjral and Kuldip Singh
for the Respondents.
The Judgment of the Court was delivered by
5.8. SINHA, J. 1. Leave granted. G
2. Applicability of Section 195(1) of the Code of Criminal
Procedure, 1973 (the Code) is in question in this appeal which
. ,..__.. arises out of a judgment and order dated 17.8:2007 passed by
the High Court of Punjab and Haryana in Criminal Miscellaneous
No.62858 of 2005. H
794 SUPREME COURT REPORTS [2008] 6 S.C.R.
.,..,~
A 3. Lakhani Rubber Udyog Ltd. Manufactures Hawai
Chappel. They are registered owners of a trademark. Inter alia,
on the premise that Mis. Saraswati Utpadan Pvt. Ltd.,
Respondent No.2 herein had been marketing inferior goods with
the label 'Lakhani' illegally, a complaint was lodged by the
second appellant herein to SHO, Police Station Jalandhar.
B .... .
He was asked to approach the Senior Superintendent of
Police, Jallandhar.
On or about 18.1.2005, the second appellant approached
c the Senior Superintendent of Police, Jallandhar with a written
complaint, stating :
"The inferior quality goods bearing the falsified trade mark
and as are packed infringing labels/cartons are being sold
and offered for sale at various places in Faridabad and
D the purchasing public is being deceived and cheated by
such persons. The Government is also being defrauded
by huge reveues on account of the illegal trade activities
of such persons.
... -
We wish to bring it to your notice that such persons/traders
E
have full knowledge about the legal and vested rights of
our company and are not only committing acts of
falsification/infringement and are also abetting the
infringement of copyright and are committing offence as
are cognizable and are punishable under Section 63 of
F the Copyright Act read with Section 78-79 of the Trade
~
and Merchandise Marks Act, 1958. >-
We further submit that the said unscrupulous persons have
in their power and possession dies, the goods to which
false trade marks, false trade description has been applied
G
including the material and with logo, which are used for
the purpose of falsifying our company's Trade MarK and
Logo. The said goods are also offered for sale by the said ~ ...
accused.
H You are requested to take legal action against the
P.O. LAKHANI AND ANR. v. STATE OF PUNJAB 795
AND ANR. [S.B. SINHA, J]
"'~
abovesaid parties and oblige." A
4. In the body of the said complaint itself, the Senior
Superintendent of Police directed one Gian Singh, to comply
with the said request of the second appellant and report. When
a search was sought to be carried out in the premises of the
respondent purported to be on the basis of the said direction, a B
large number of people objected thereto. They obstructed in
the proceeding of search and misbehaved with the raiding party.
However, nothing objectionable was found in the factory. A report
to the said effect was submitted by the aforementioned Gian
Singh, In-charge, Special Cell of the CIA. c
5. Another report was filed by the Superintendent of Police
(Detective) on 8.4.2005 before the Senior Superintendent of
Police, stating ;
"On inquiry of aforesaid application, it was found that ow:1er 0
of Lakhani Rubber Udyog, 130, Sector 24, Faridabad
x had submitted an application No.102-Peshi 16/1 /2005
concerning duplicate hawai chappal to the SSP. It was
forwarded to Gian Singh, lnsp. CIA for necessary action
Gian Singh lnsp. on 19/1/2005 along with employees and E
Sh. Munish Arora.Adv. Sh.N.D. Arora, Marketing Advisor,
Manohar Juneja arid Sanjay Sood, Marketing Manager of
· Lakhani Rubber Udyog Limited, Faridabad, Haryana,
reached at the factory of Saraswati Utpadan, at Oogri
. Road, for checking and made the search of the factory. F
During this period for the ·opposition put by the owners of
·the factory there was little altercation also took place.
"" During search neither anything in the name Lakhani
Chappal nor anything of the like appearance was found
and also nothing objectionable thing was found. Therefore,
G
the application submitted .by the aforesaid Lakhani Rubber
Udyog, Faridabad was found to be false after investigation .
-~
;... ' . Due to which the Saraswati Utpadan Pvt. Ltd. had lost its
goodwill. Whereas the SHO Adampur is being directed to
take action against the aforesaid officer of Lakhani Rubber
H
796 SUPREME COURT REPORTS [2008] 6 S.C.R.
~#
A Ltd. U/s 182 IPC. No misbehave with anybody proved on
the part of Gian Signh lnsp. He has complied with the
orders of the senior officers. No further action is required
on the application. It is suggested that the application is
consigned to record. Report is submitted."
B 6. The Station House Officer of the Police Station, Adampur .-'f"'
thereafter filed a complaint petition on or about 11.5.2005 before
the Chief Judicial Magistrate, inter alia, stating :
"During investigation complaint lodged by Lakhani Rubber
c Udyog Limited, Faridabad was found false. Due to this,
reputation of Saraswati Udyog Private Limited, Ahlwalpur
got damage. On this a complaint No.66-PLZ dated 14/2/
05 given to Sh. SSP Sahib, bahadur, Jalandhar by M/s.
Sarswati Udyog Private Limited. It was investigated by
Sh. SP-D Sahib, Jalandhar. After investigation they found
D
that complaint filed by Lakhani Rubber Udyog Limited is
a false one and they directed to take necessary action U/ "-
s 182 IPC against the accused. Kalendera was prepared
in accordance with the order of Sh. SP-D Sahib, Jalandhar
(letter No.1086-Reader SP-DIP dated 9.4.05 and P.S.
E No.512-5E dated 9.4.05) and sent to you for necessary
action. The under mentioned witnesses will give evidence
against the accused and they should be called through
summons and accused should be given proper
punishment."
F
7. Legality and/or validity of the said report was questioned
by the appellants herein before the High Court of Punjab and
;.. ...
Haryana by filing an application under Section 482 of the Code.
By reason of the impugned judgment dated 17.8.2005, the High
Court dismissed the said application.
G
8. Mr. K.V. Vishwanathan, learned counsel appearing on
behalf of the appellant, would submit that having regard to the
terminologies used in Section 195(1) of the Code of Criminal .... ""
Procedure, 1973 the compia;.~~ :--~titian could have been filed
H only by the Senior Superintendent of Police, Jalandhar or any
P.O. LAKHANI AND ANR. v. STATE OF PUNJAB 797
AND ANR. [S.B. SINHA, J.]
~- authority higher in rank to him. In any event, the Managing A
Director of Lakhani being not concerned wi_th the lodging of the
earlier complaint, the complaint in question was not
maintainable against him.
9. Mr. Gupta, learned counsel appearing on behalf of the
respondent, on the other hand, urged as the matter is pending B
~--1-.
before the Trial Judge, this Court, at this stage, should not
interfere with the impugned judgment.
It was contended that in effect and substance, the complaint
was filed by the appellant No.2 only before the Station House c
Officer which was referred to Senior Superintendent of Police
as the question involved was infringement of the laws governing
Intellectual Properties. In any event, as the complaint petition
having been filed pursuant to the directions of the Senior
Superintendent of Police itself, it is valid in law.
D
Section 182 of the Indian Penal Code, indisputably,
x provides for an offence falling under Chapter X of the Indian
Penal Code. Section 195 provides for prosecution for contempt
of lawful authority of public servant, for offences against public
servant and for offences relating to documents given in evidence. E
It contains an embargo stating that 'no court shall take
cognizance of an offence. punishable, inter alia, under the
aforementioned provision except on the complaint in writing by
the public servant concerned or by some other public servant to
whom he is administratively subordinate'. 'Contempt .of a public F
, servant' has a definite connotation. Such contempt must be
~ provided for by law. It must be found to be false.
The Station House Officer, Jallandhar did not act on the
said complaint. He asked the appellant No.2 to bring the same
to the notice of the Senior Superintendent Police, Jalandhar, G
Complaint Branch, which he did. It was, thus, a complaint to a
higher authority.
"..+
10. The Senior Superintendent of Police only had asked
the Superintendent of Police, Detective Branch to enquire into
H
798 SUPREME COURT REPORTS [2008] 6 S.C.R.
A the matter and report within seven days. )4"" ·
Shri Gian Singh, pursuant thereto was asked to carry out
the necessary search of the premises of the second respondent.
11. The report of compliance by Gian Singh was made to
B the CIA staff. CIA staff, in turn, placed it before the Senior
Superintendent of Police. The proceedings, therefore, were, ~~
indisputably, initiated by the Senior Superintendent of Police,
Jallandhar and not by the Station House Officer,.
12. The Station House Officer would have jurisdiction to
C investigate into the matter provided a first information report
was lodged by him in terms of the complaint made by the
appellant No.2. Whatever action was taken in the matter was
pursuant to the order of the Senior Superintendent of Police
Jalandhar.
D
The High Court, in our opinion, thus, committed a manifest
error in so far as it held that the as the complaint was addressed
to the SHO, he was the appropriate authority to lodge a
complaint in respect of an offence punishable under Section
182 of the Indian Penal Code.
E
The fact that the search was made pursuant to the directions
issued by the Senior Superintendent of Police, Jalandhar is not
in dispute. Section 195 contains a bar on the Magistrate to take
cognizance of any offence. When a complaint is not made by
F the appropriate public servant, the Court will have no jurisdiction
in respect thereof. Any trial held pursuant thereto would be wholly
without jurisdiction. In a case of this nature, representation, if ~
any, for all intent and purport was made before the Senior
Superintendent of Police and not before the Station House
G Officer.
13. No complaint, therefore, could be lodged before the
learned Magistrate by the Station House Officer. Even assuming
that the same was done under the directions of Senior -... '"'
Superintendent of Police, Jallandhar, Section 195, in no
H uncertain terms, directs filing of an appropriate complaint
P.O. LAKHANI AND ANR. v. STATE OF PUNJAB 799
AND ANR. [S.B. SINHA, J.]
-.,..
.
petition only by the public servant concerned or his superior A
officer. It, therefore, cannot be done by an inferior officer. It does
not provide for delegation of the function of the public servant
concerned.
We may notice that in terms of sub-section (3) of Section
340 of the Code, a complaint may be signed by such an officer B
r·-f-
as the High Court may appoint if the complaint is made by the
High Court. But in all other cases, the same is to be done by the
presiding officer of the court or by such officer of the court as it
may authorize in writing in this behalf. Legislature, thus, wherever
thought necessary to empower a court or public servant to c
delegate his power, made provisions therefor. As the statute
does not contemplate delegation of his power by the Senior
Superintendent of Police, we cannot assume that there exists
such a provision. A power to delegate, when a complete bar is
created, must be express; it being not an incidental power. D
;•( 14. In Dau/at Ram v. State of Punjab [(1962) 2 SCR 812],
Hidayatullah, J. (as the learned Judge then was), held as under:
" ... In our opinion, this is not a due compliance with the
provisions of that section. What the section contemplates E
is that the complaint must be in writing by the public servant
concerned and there is no such compliance in this case."
The said decision was followed by a Division Bench of
this Court in State of UP v. Mata Bhikh & Ors. ((1994) 4 SCC
95], stating F
"A cursory reading of Section 195(1 )(a) makes out that in
case a public servant concerned who has promulgated an
order which has not been obeyed or which has been
disobeyed, does not prefer to give a complaint or refuses
G
to give a complaint then it is open to the superior public
servant to whom the officer who initially passed the order
. . +- is administratively subordinate to prefer a complaint in
respect of the disobedience of the order promulgated by
his subordinate. The word 'subordinate' means
H
800 SUPREME COURT REPORTS [2008] 6 S.C.R.
A administratively subordinate, i.e., some other public servant
who is his official superior and under whose administrative
control he works."
The said decisions are squarely applicable to the facts of
the present case.
B
15. For the reasons aforementioned, the impugned ,.. ~
judgment cannot be sustained. It is set aside accordingly. Appeal
is allowed. However, there cannot be any doubt whatsoever that
another complaint petition would be maintainable at the instance
c of the appropriate authority.
D.G. Appe2I allowed
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