Ram Nath v. State — 1967 DIGILAW 317 (ALL)

ORDER Rajeshwari Prasad, J. - Sri R.S. Agarwal, Additional Sessions Judge, Kanpur, by an order dated 14-4-1965, has made this reference to this Court. He has recommended that proceedings pending before the Additional City Magistrate II, Kanpur, in prosecution of the accused for offences Under Sections 78 and 79, Trade and Merchandise Marks Act at the instance of Sri K.N. Tandon, Inspector, Indian Trade Marks Section, Director of Industries, Kanpur, be quashed. 2. The case for the prosecution as it emerges from the aforesaid report of Sri K.N. Tandon is that M/s. Habib Bank Limited, Bombay, had been one of the firms and refineries of gold and had been carrying on the business of producing coins and pieces of gold of various shapes and sizes for sale. Such articles were sold and purchased under the description "Habib Bank Ka Sona' or "Sher Chap Sona". M/s. Habib Bank Ltd. had been applying distinct trade marks which contained the device of lion holding a sword with its forearms against the background of rising sun. The aforesaid device along with the words "Habib Bank Limited" written above it, and the words "Shudh Sona", below it, in Gujrati script and dotted circle and border on the face of the device over a coin and the device of wreath along with the border on the other face with the words "Habib Bank Limited" contained in the upper half "Pure Gold" in the lower halt of the space within it in English script besides the description of weight and quality, constituted the trade mark which was registered in the name of M/s. Habib Bank Ltd., Bombay. The Registration Number of the aforesaid trade mark is 95718. The above trade mark had been registered in the name of M/s. Habib Bank Ltd. from 12-5-1944 it was renewed for a period of 15 years from 12-5-1951. The Registration Number of the aforesaid trade mark is 95718. The above trade mark had been registered in the name of M/s. Habib Bank Ltd. from 12-5-1944 it was renewed for a period of 15 years from 12-5-1951. The prosecution case went on to allege that the accused was a partner of M/s. Panna Lal Durga Prasad and that the aforesaid firm prepared similar coins and pieces of gold and applied the aforesaid registered trade mark of M/s. Habib Bank Ltd. deceptively, the only difference being that instead of writing "Habib Bank Ltd." these articles prepared by M/s. Panna Lai Durga Prasad contained the word "Habib Quality" and the words "Pure Gold" in the aforesaid trade mark in English script were preceded by letter 'P' and 'D' on the articles produced by the aforesaid firm. This conduct on the part of the accused deceived the buyers and unwary purchasers. Searches were made at the shop of M/s. Panna Lal Durga Prasad at Nayagunj as well as at their refinery at Rail Bazar, Kanpur as a result of which certain recoveries were effected. It was alleged that the partners of the firm were liable to be prosecuted for offences Under Sections 78 and 79 of the Trade and Merchanddise Marks Act, 1958. 3. After the charge had been framed against the accused the prosecution examined before the learned Magistrate one Sri P.E. Wadia, Senior Attorney Clerk, Habib Bank Ltd., Bombay, as the first prosecution witness. After the aforesaid witness had been examined and cross examined the accused moved an application on 29-5-1964, before the trial magistrate bringing to his notice that the statement of Sri Wadia, prosecution witness, clearly indicated that Habib Bank has stopped dealing in gold and had ceased to manufacture gold coins. It was pointed out that it was apparent from the testimony of Sri Wadia that Habib Bank Ltd. had destroyed the dye sometimes in the year 1954. The accused submitted in that application that the trade mark of Habib Bank Ltd., in respect of which offence is said to have been committed by the accused, had become ineffective and consequently was thrown open to the public. It was prayed that further proceedings for prosecution of the accused be stopped, that they may not be unnecessarily harassed and that the complainant be directed to seek appropriate remedy in civil court. 4. It was prayed that further proceedings for prosecution of the accused be stopped, that they may not be unnecessarily harassed and that the complainant be directed to seek appropriate remedy in civil court. 4. The learned magistrate, however, dismissed the aforesaid application of the accused. 5. Aggrieved by the order of the learned magistrate Sri Ram Nath, Petitioner, filed a petition in revision before the Sessions Judge, Kanpur, which was disposed of by the Additional Sessions Judge, Kanpur. The learned Additional Sessions Judge took the view that the order passed by the Trial Magistrate was not appropriate and that it was a fit case in which a recommendation could be made to the High Court for quashing the entire proceedings in prosecution of the accused. 6. In support of this reference Mr. Ambika Prasad, advocate, who appeared for the accused, made various submissions before me. In the first place it was urged that in view of the testimony of Sri Wadia, prosecution witness, it was clear that M/s. Habib Bank Ltd., had abandoned its property in the trademark for about 8 years prior to the date when the offence is alleged to have been committed. Consequently, it has ceased to be the property of the said Bank. That being so, no offence Under Sections 78 and 79 of the Trade and Merchandise Marks Act can be said to have been committed by the accused. In support of this submission my attention has been invited to Section 46 of the aforesaid Act. Consequently, it has ceased to be the property of the said Bank. That being so, no offence Under Sections 78 and 79 of the Trade and Merchandise Marks Act can be said to have been committed by the accused. In support of this submission my attention has been invited to Section 46 of the aforesaid Act. Section 46 provides that a registered trade mark may be taken off the register in respect of any goods in respect of which it is registered, on application made in the prescribed manner to a High Court or-.to the Registrar by any person aggrieved on the ground either, that the trade mark was registered without any bonafide intention on the part of the Applicant for registration, that it should be used in relation to those goods by him or, in a case to which the provisions of Section 45 apply, by the company concerned, and that there has in fact been no bonafide use of the trade mark in relation to those goods by any proprietor thereof for the time being upto a date one month before the date of the application and that upto a date, one month before the date of the application a continuous period of 5 years or longer had elapsed during which the trade mark was registered, and during which, there was no bonafide use thereof in relation to those goods, by any proprietor thereof for the time being. The submission made by the learned Counsel is that it is clear from the testimony of Mr. Wadia (PW 1) that there has been non-user and consequently abandonment of the trade mark for a period of more than 5 years by M/s. Habib Bank Ltd. and that, therefore, the trade mark ceased to be the property of the said Bank. I find it difficult to accept this contention because, to my mind, mere proof of non-user, may be for a period of 5 years or more, does not bring about the cessation of ownership of the trade mark. Something still needs to be done before such a result can follow. That something consists of the rectification of the register u/s 46. Unless the register had been rectified the proprietary rights of the Bank could not be said to have ended only, because the trade mark had not been used for a period of more than 5 years. Something still needs to be done before such a result can follow. That something consists of the rectification of the register u/s 46. Unless the register had been rectified the proprietary rights of the Bank could not be said to have ended only, because the trade mark had not been used for a period of more than 5 years. There may be cases where the non-user of the trade mark may have been occasioned on account of special reasons and such non-user was explainable. Clause (iii) of Section 47 makes it clear, that it is open to the owner to contest the application for rectification of the register, by the plea, that the non-user of the trade mark was due to special circumstances in the trade and not due to any intention on his part to abandon or not to use the trade mark in relation to the goods to which the application relates. I am, therefore, of the view that the proceedings are not vitiated on the ground that the trade mark in question has ceased to be the property of M/s. Habib Bank Ltd. 7. It was next contended that Habib Bank Ltd., under the circumstances of the case and the facts as they emerged from the materials on the record, ceased to be the owner of the trade mark. The precise argument advanced is that it is now admitted by the prosecution witness Mr. Wadia that the head office of the Bank had shifted to Karachi in the year 1954. It has also been pointed out that the Reserve Bank declared Habib Bank as a foreign Bank sometime in the year 1960. 8. Reference was made to Article 5 of the Constitution of India to point out that it is only a person, unless he is covered by Clauses (a) and (b) of the Article, who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, who can be a citizen of India. Reference has also been made to Article 9 of the Constitution which article provides that no person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article 8, if he has already voluntarily acquired the citizenship of any foreign State. Reference has also been made to Article 9 of the Constitution which article provides that no person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article 8, if he has already voluntarily acquired the citizenship of any foreign State. It has been urged that in view of the testimony of Mr. Wadia, the Bank even if a Bank could become a citizen of any State, had ceased to be a citizen of India. The learned Counsel for the accused also referred to two documents on the record which are marked Ex. Kha 1 and Kha 2. Ex. Kha 1 is a letter sent by the Agent of Habib Bank Ltd. to one Messrs Laxmi Jwellers Nayaganj Kanpur dated 4-1-1958. What has been averred in that letter is that the Gold Department of Habib Bank Ltd. had been closed and that it did no more mint any gold coins. Ex. Kha 2 dated 21-1-1958 is another similar letter sent by the Habib Bank Ltd. to Messrs Laxmi Jwellers of Kanpur. This letter again reiterates that the Gold Department of the Bank had been closed. With such materials on the record, the accused has placed reliance, on the decision of the Supreme Court in the case of Shewpujanrai Indrasanrai Ltd. Vs. The Collector of Customs and Others, AIR 1958 SC 845 . The particular observation in that case which has been relied upon by the learned Counsel reads as follows: SO far as Nationale Handels Bank N.Y., Respondent No. 4 is concerned, it has no right Under Article 19. Assuming that a company can be a citizen as defined in the Constitution, Respondent No. 4 admittedly is a foreign company possessing no right of a citizen of this country. It has, therefore, been urged that Habib Bank Ltd. having ceased to be a citizen of India was incapable of holding any property right in the Indian dominion. Assuming that a company can be a citizen as defined in the Constitution, Respondent No. 4 admittedly is a foreign company possessing no right of a citizen of this country. It has, therefore, been urged that Habib Bank Ltd. having ceased to be a citizen of India was incapable of holding any property right in the Indian dominion. Having ceased to be a citizen of India and having become a citizen of Pakistan, it had ceased to have a right to hold any property in the India dominion, the trade mark in question, therefore, no more was owned by Messrs Habid Bank Ltd. There is some force in the submission made by the learned Counsel and the question raised by him is a substantial question of law involving the interpretation of the articles of the Constitution of India. Such a question can more properly be decided in a civil action rather than by the Magistrate in a criminal case. I have already mentioned that the prayer that was made on behalf of the accused before the learned Magistrate was that if necessary, complainant may be directed to have his remedy in the civil court. One of the learned Single Judges of this Court expressed such a view in the case of Karan Singh v. Mohan Lal 1964 AWR 208 : ACrR 143. The view taken was that a controversy between the parties relating to complicated questions of abandoment of user and expressed or implied consent of the registered holder of the trade mark, is a question which should be decided in a civil action rather than by the criminal court. For the view taken by the learned Single Judge, reliance was placed on a decision of a Full Bench of the Calcutta High Court in the case of Ashutosh Das Vs. Keshab Chandra Ghosh, AIR 1936 Cal 488 . I am in respectful agreement with the view expressed by the learned Single Judge and I consider, it was appropriate for the learned Magistrate to grant the prayer made on behalf of the accused on that basis if otherwise permissible. 9. The third submission made on behalf of the learned Counsel for the accused was that in this particular case, no complaint has been made by a proprietor of the trade mark. 9. The third submission made on behalf of the learned Counsel for the accused was that in this particular case, no complaint has been made by a proprietor of the trade mark. Prosecution of the accused on the complaint of the Inspector, Indian Trade Marks and a subsequent investigation by the police is according to the learned Counsel therefore incompetent. Reference has been made to various sections of the aforesaid Act and the provisions of the IPC as well as those of the Code of Criminal Procedure in support of the aforesaid contention of the learned Counsel. It appears that formerly an offence of this nature was an offence within the meaning of the provisions of the IPC. Sections 482 and 483 of the IPC relate to the offence of the present nature. Those two sections, however, were amended in view of the provisions of the Trade and Merchandise Marks Act, 1958. The words "Trade Mark" and "Trade" were deleted from Sections 482 and 483 of the IPC. Offences Under Sections 482 and 483 after that amendment related only to property mark. The reason for this amendment appears to be that such an offence against trade mark was made an offence under the provisions of the Trade and Merchandise Marks Act, 1958. The offences, therefore, alleged to have been committed by the accused are those which are covered by Sections 78 and 79 of the aforesaid Act and not under any provision of the IPC. The complaint made by the Inspector Indian Trade Marks also refers to Sections 78 and 79 of the Act and not to any offence under the IPC. I have no manner of doubt that the prosecution case is, therefore, for offences which are offences Under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 and not for any offence within the meaning of IPC. 10. In order to support the contention that a complaint for offences Under Sections 78 and 79 of the aforesaid Act cannot be competently made by the Inspector of Indian Trade Marks but has necessarily to be made by the registered owner of that Trade Mark, I have been referred to Section 28 of the Act. Section 28 devotes itself to the consideration of the right conferred by registration. Section 28 devotes itself to the consideration of the right conferred by registration. It lays down that registration, if valid, gives to the registered proprietor of the trade mark exclusive right to the e of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by that Act. On the basis of the provision of Section 28 referred to above, it has been urged that exclusive right to the use of the trade mark has been reserved in the person who is the registered proprietor of the trade mark. Likewise, the right to obtain relief in respect of infringement of the trade mark has also been given to such a proprietor. Before dealing further with the question it may be pointed out at this stage, that my attention has not been drawn to any provision of law or any notification under the aforesaid Act, which could go to show that the Inspector Trade Marks was competent to make a complaint for offences Under Sections 78 and 79 of the aforesaid Act. Section 89 of the aforesaid Act says that no court shall take cognizance of an offence u/s 81, Section 82 or Section 83 except on complaint in writing made by the Registrar or any officer authorised by him in writing. It has to be noted that express power has been given to the Registrar and to officer authorised by him, to make a complaint in respect of offences Under Sections 81, 82 and 83 of the Act. Section 81 deals with the offence of false representation that a trade mark was registered. Section 82 prescribed penalty for improperly describing a place of business as connected with the Trade Marks Office, and Section 83 penalises falsification of entries in the register. It is conspicuous to note that all the aforesaid provisions relate to offences against the registration of the trade mark. Logically, the power to make a complaint in respect of such offences needed to be vested in the Registrar or any officer authorised by him in that behalf. So far as offences Under Sections 78 and 79 of the Act are concerned, the Act does not contain any provision similar to the provision of Section 89 referred to above. Logically, the power to make a complaint in respect of such offences needed to be vested in the Registrar or any officer authorised by him in that behalf. So far as offences Under Sections 78 and 79 of the Act are concerned, the Act does not contain any provision similar to the provision of Section 89 referred to above. With a view to substantiate the contention that for a prosecution for offences Under Sections 78 and 79 of the Act, a complaint by the owner of the Trade Mark is necessary, reference has been made to Section 87 of the Act. Section 87 provides the procedure to be followed in prosecution for offences Under Sections 78 and 79 of the Act in relation to a registered trade mark. If in such a case, the accused pleads that the registration of the trade mark was invalid and the Magistrate trying the case is satisfied that the defence was prima facie tenable, it is enjoined that the Magistrate shall not proceed with the charge but shall adjourn the proceedings for three months from the date on which the plea of the accused was recorded, to enable the accused, to file an application before the High Court under this Act for the rectification of the register on the ground that the registration was invalid. It is further provided by Section 87 of the Act that if it is proved before the Magistrate that such an application has been made within time, the Magistrate will proceed to stay the hearing of the criminal case till that application for rectification and appeal preferred from such an order of rectification have been disposed of the further contingency provided by Section 87 is that where before the institution of the complaint for an offence Under Sections 78 and 79 of the Act, any application for the rectification of the register concerning the trade mark in question on the ground of invalidity of the registration thereof had already been properly made to and was pending before the Tribunal, the Magistrate must stay the further proceedings in the case pending the disposal of the application aforesaid and must determine the charge against the accused in conformity with the result of the application for rectification in so far as the complainant relied upon the registration of his mark. On the basis of the provisions of Section 87, it has been urged that a prosecution for offences Under Sections 78 and 79 of the Act contemplates a complaint by the owner of the trade mark. The learned Counsel for the accused has also invited my attention to the objects and reasons in relation to provision of Section 87 of the Act. That may be usefully quoted at this stage: This clause sets down the procedure to be followed in a case where the accused charged with an offence Under Clause 78 or 79 sets up a defence that the registration of the trade mark is valid. The procedure is similar to that in civil suits where a similar defence is raised by the Defendant Under Clause 111. With regard to Sub-section (2) in which the words "in so far as the complainant relies upon the registration of mark" occur, the objects and reasons further proceed to say: Under Clauses 77, 78 and 79, a complainant may rely not only on his registration but a so on his right to use of the mark. 1 he committee considers that the complainant's right to proceed with a prosecution on the basis of his right of user need not be affected by the invalidity of the registration. The sub-clause has been amended accordingly. 11. The language of Section 91 of the Act further throws substantial light on the question that is under consideration. The marginal note in Section 91 is "Costs of defence or prosecution." The section reads as follows: In any prosecution under this Act, the Court may order such costs to be paid by the accused to the complainant or by the complainant to the accused, as the Court deemed reasonable having regard to all the circumstances of the case and the conduct of the parties. Costs so awarded shall be recoverable as if they were a fine. 12. A perusal of the various provisions to which reference has been made above, shows that they do not admit of a prosecution by a person other than the owner of the trade mark. In any case, they do not admit of a prosecution at the instance of the Registrar or any office authorised by him. 13. 12. A perusal of the various provisions to which reference has been made above, shows that they do not admit of a prosecution by a person other than the owner of the trade mark. In any case, they do not admit of a prosecution at the instance of the Registrar or any office authorised by him. 13. Section 190 of the Code of Criminal Procedure, on which reliance has been placed on behalf of the State with a view to meet the argument advanced on behalf of the accused, provides as follows: 190(1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence-- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police-officer; (c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed. Section 190 Code of Criminal Procedure, therefore, contains the general rule relating to the jurisdiction of the various courts to take cognizance of any offence. If the various provisions of the Trade and Merchandise Marks Act, 1952 rule out a prosecution for offences Under Sections 78 and 79 of the Act, except on the basis of a complaint by the owner, then those provisions constitute special enactment. The learned Counsel for the accused, therefore, has rightly urged that it is the provision of the aforesaid Act itself which must apply to an offence which is not an offence under the IPC but is an offence within the meaning of the aforesaid Act. The general provision of Section 190, therefore, would not be applicable to this particular subject. I, therefore, find it difficult to accept that a prosecution for offences Under Sections 78 and 79 of the Act not on the basis of a complaint by the registered owner of the trade mark, but on the basis of a report made by the Inspector Indian Trade Marks Act, is competent. 14. Mr. P.C. Srivastava, learned Counsel for the State who has argued the case before me has placed reliance on the decision in the case of State of Uttar Pradesh v. Ram Kishore 1964 ALJ 180. 14. Mr. P.C. Srivastava, learned Counsel for the State who has argued the case before me has placed reliance on the decision in the case of State of Uttar Pradesh v. Ram Kishore 1964 ALJ 180. That decision, however, involved the consideration whether the omission of the owner of the Trade Mark in not filing a complaint resulted in acquiescence to the use of the trade mark by the accused or not. 15. Mr. Srivastava has further relied on the decision of the Calcutta High Court in the case of Madan Lal Arora Vs. The State, AIR 1961 Cal 240 . It is not possible for me to apply the principles of that decision to the facts of the instant case inasmuch as that was a case u/s 10 read with Section 7 of the Essential Commodities Act. 16. I am, therefore, of the view that the prosecution of the accused in the instant case is contrary to the provisions of law. 17. The question that then arises is, whether this Court is competent to quash the proceedings pending before the trial Magistrate in this case or not. Mr. Srivastava has vehemently urged that the accused did not file any petition in revision against the order of the learned Magistrate by which charge was framed against him. It was only when the prosecution examined one of its witnesses, that an application was made on behalf of the accused before the learned Magistrate to drop the proceedings. The prayer for dropping the proceedings was not based on any illegality in the charge framed by the learned Magistrate but was based on the facts emerging from the testimony or Mr. Wadia prosecution witness. This being so, according to Mr. Srivastava, no revision lay before the learned Sessions Judge against that order of the learned Magistrate. Consequently, reference to this Court in pursuance of that revision petition is incompetent and this Court should not, therefore, interfere in the matter. 18. It has also been urged that in deciding a matter which has come up before this Court by means of reference made by the Sessions Judge, recourse should not be made to the inherent powers of this Court u/s 561-A of the Code of Criminal Procedure. 18. It has also been urged that in deciding a matter which has come up before this Court by means of reference made by the Sessions Judge, recourse should not be made to the inherent powers of this Court u/s 561-A of the Code of Criminal Procedure. It has further been urged that even if power u/s 561-A of the Code of Criminal Procedure can be utilised in disposing of this matter, it is not a fit case in which that power should be exercised. It is the correctness of these submissions that has now to be considered. I do not find it necessary to deal at length with the first two submissions made by Mr. Srivastava. But I assume for the purpose of the order that I propose to make that the learned trial Magistrate after having framed the charge against the accused and having recorded some prosecution evidence, did not have the jurisdiction to discharge the accused. I shall also assume that the learned Sessions Judge for the same reason did not have jurisdiction to entertain an application in revision against the order of the trial Magistrate. The question, however, is that the entire matter having been brought to the notice of this Court, irrespective of the manner in which that has been brought whether this Court, has the power, to quash the proceedings in order to meet the ends of justice or not. Section 561-A of the Code of Criminal Procedure undoubtedly gives wide power to this Court which can be invoked provided the case is a suitable one for so doing. This Court in the exercise of such powers can make orders as may be necessary to give effect to any order under the Code of Criminal Procedure, or to prevent abuse of process of any court or to otherwise secure the ends of justice. If this be the width of the power of this Court u/s 561-A of the Code of Criminal Procedure, I am unable to think of any logical basis for holding that that power could be exercised in disposing of a proceeding before this Court which is based directly on a petition u/s 561-A Code of Criminal Procedure, but is not based on a reference made by the court below. I am, therefore, clearly of the view that jurisdiction u/s 561-A Code of Criminal Procedure can be invoked for disposing of any proceeding before this Court, provided the Court is satisfied that it is a fit case for so doing. I do not find any authority for the proposition that the power u/s 561-A Code of Criminal Procedure can be exercised only when there is a regular application on behalf of some party for so doing. 19. The next question is whether the instant case is a fit one in which powers u/s 561-A Code of Criminal Procedure can be exercised. In the view that I have taken that the prosecution of the accused for offences Under Sections 78 and 79 of the Act on the basis of a report and at the instance of the Inspector, Indian Trade Marks, is not lawful, I feel it is my duty to put an end to such illegal prosecution. Mr. Srivastava has urged that the case is still pending before the learned Magistrate and this is no stage for exercising the powers u/s 561-A Code of Criminal Procedure by this Court. He has relied on the Supreme Court decision in R.P. Kapur Vs. The State of Punjab, AIR 1960 SC 866 . It has been urged that if a matter is covered by other provisions of the Code, the Court will refuse to exercise powers u/s 561-A of the Code of Criminal Procedure. On the submissions made by the learned Counsel for the State, it is obvious that there was no alternative remedy available to the accused on the facts of this particular case. According to the learned Counsel for the State, neither the Magistrate nor the learned Sessions Judge did have the power to make appropriate orders at this particular stage. I am therefore of the view that it is not correct to refuse to exercise jurisdiction u/s 561-A Code of Criminal Procedure in this case on the basis that the specific matter is covered by any other provisions of the Code. I am further of the view that for the exercise of powers u/s 561-A Code of Criminal Procedure, the question of the stage of the proceeding before the learned Magistrate is wholly immaterial. Section 561-A Code of Criminal Procedure permits the stopping of the continuance of a proceeding before a subordinate court. I am further of the view that for the exercise of powers u/s 561-A Code of Criminal Procedure, the question of the stage of the proceeding before the learned Magistrate is wholly immaterial. Section 561-A Code of Criminal Procedure permits the stopping of the continuance of a proceeding before a subordinate court. It would be incorrect to hold that the continuance of a proceeding before a subordinate court can be stopped only at one stage and not only at the other. The decision of the Supreme Court relied upon by the learned Counsel itself clinches the matter. Further according to that decision of the Supreme Court, the exigency to invoke jurisdiction u/s 561-A of the Code of Criminal Procedure, arises, when there is no legal evidence in the case or when there is evidence which is manifestly and clearly inconsistent with the accusation made. According to that decision, powers u/s 561-A Code of Criminal Procedure cannot certainly be exercised in a case where there is legal evidence but which on its appreciation may or may not support the accusation in question. It is not open to this Court in an enquiry u/s 561-A Code of Criminal Procedure to enter into the question whether the evidence adduced is or is not reliable. That duty must be performed by the court trying the case. Learned Counsel for the State has further relied upon the decision of this Court in Rama Shanker Vs. The State of Uttar Pradesh, AIR 1956 All 525 . The observation made in that case was to the effect as the question whether there was any truth in the prosecution evidence or not, would have to be seen when the trial is concluded. Before the trial is concluded, no finding on such point can be given and proceedings cannot be quashed on the ground that the Petitioner had not committed any offence. I am in respectful agreement with the view so expressed but in the instant case as I have pointed out earlier, I find that the basis of the prosecution is illegal and no occasion for appreciating the evidence or adjudicating upon the truth of the testimony of the witnesses arises. 20. Reference by Mr. Srivastava has also been made to some other cases, but I do not consider it necessary to deal with them in the instant case. 20. Reference by Mr. Srivastava has also been made to some other cases, but I do not consider it necessary to deal with them in the instant case. I do not think any utility in permitting the prosecution to continue if ultimately after trial, it has to be dismissed on the ground that the prosecution was illegal, as it was based on the report of the Inspector Indian Trade Marks. I am further of the opinion that in view of the controversies raised in this case it was a fit case in which proceedings in prosecution of accused should have been dropped and the parties should have been directed to get all those complicated questions of law involving interpretation of Constitution of India, decided in a civil action. Both the learned trial Magistrate as well as the learned Sessions Judge were conscious of the scope of powers u/s 561-A, Code of Criminal Procedure but it was found rightly that, that could be exercised by this Court alone. 21. Mr. Srivastava has also urged that though the testimony of Mr. Wadia may appear to undermine the prosecution case the prosecution had yet to produce a number of witnesses in support of its case. The testimony of Mr. Wadia who was examined as a prosecution witness, is the testimony of a prosecution witness of which the prosecution cannot get rid of by adducing further evidence to rebut the testimony of Mr. Wadia. Mr. Wadia has in his testimony stated about various facts which are highly relevant in this case. 22. I have, therefore, to accept the reference made by the learned Sessions Judge, and to quash and set aside the proceedings in prosecution of the accused for offences Under Sections 78 and 79 of Trade and Merchandise Marks Act, 1958. 23. The reference is accepted, proceedings in the prosecution of the accused pending before the trial Magistrate for offences Under Sections 78 and 79 of the aforesaid Act are accordingly set aside and quashed.