Judgment Loknath Prasad, J. 1. This is an application under Secs. 397 and 401 of the Code of Criminal Procedure filed by die petitioner who is the informant of a criminal case bearing Patna city Chowk Police Station Case No. 135/90 for setting aside the order passed by the Additional Chief Judicial Magistrate, Patna city dated 10.9.1993. 2. For proper appreciation the case of the petitioner in short is that he is manufacturing the buckets in the name of M/s Bihar Galvanising Works, Simili, Patna city with figure of Elephant and this was duly registered under the Copyright act bearing Registration No. A-131718/83. It was found that the Opposite Parties Nos. 2 and 3 who are running hardware shop, namely M/s Kamal Enterprises Hardware were found selling the buckets of Elephant brand which was manufactured by New Calcutta Industry, Kanpur and F.I.R. was lodged on 7.8.1980 under the Copyright Act and Trade Mark Merchandise Act and also under the Indian Penal Code. The main allegation is mat the accused persons had no right to manufacture or sell the buckets or elephant brand for which Copyright was obtained earlier by the informant-petitioner. The police instituted the case bearing No. Patna city Chowk P.S. Case No. 135/90 and after searching some buckets were seized from the premises of the accused person but after completing the investigation the police in collusion with the accused persons and the proprietor of New Calcutta Bucket Industries, Kanpur submitted final report alleging therein that it is a case of mistake and no case is made out. It is also alleged that prior to the submission of the final report the informant petitioner suspected that the police in collusion with the accused persons filed a protest cum complaint petition which was kept on the record and the learned Additional Chief Judicial Magistrate, Patna city vide order dated 10.9.1993 without properly considering the materials on the record rejected the protect cum complaint petition and accepted the final report. 3. A supplementary affidavit has been filed stating therein that the petitioner who was informant filed a protest cum complaint petition to be treated as a complaint case was not examined under Secs. 3. A supplementary affidavit has been filed stating therein that the petitioner who was informant filed a protest cum complaint petition to be treated as a complaint case was not examined under Secs. 202 of the Code of Criminal Procedure and without examining the materials or the evidence of the petitioner wrongly dismissed the protesing cum complaint petition and the court below has not complied with the provision of Sec. 202 of the new Code of Criminal Procedure. 4. Opposite party Nos. 2 and 3 were admittedly accused in the aforesaid police case instituted by the petitioner entered appearance and filed a counter-affidavit and virtually admitted that they were selling the buckets of elephant brand but actually these bucket were manufactured by M/s New Calcutta Bucket Industries, Kanpur after obtaining proper copyright and this firm also obtained order of Injunction in O.S. Case No 1154/90 by a Civil Court of Kanpur declaring that the trade mark of this firm is valid and this firm has right to use the trade mark. It was also submitted that in view of this injunction order of Civil Court, Kanpur no offence is made out as alleged by this petitioner-informant and the earlier criminal case instituted in the year 1989 in which the cognizance of the offence was also taken is also pending before this Hon ble Court in revision matter where the further proceeding is stayed. Accordingly it is the case of the Opposite party Nos. 2 and 3 and this revision application is frivolous and liable to be rejected. 5. Admittedly it can be said from the submissions of the learned Counsel of both the parties that the petitioner-informant was manufacturing the buckets of all size with figure of elephant brand and obtained Copyright in the year 1983 and earlier also a case was instituted in the year 1989 as against the Opposite party for storing and selling the buckets of elephant brand in which the cognizance was taken and the matter is pending in the Hon ble Court under revisional Jurisdiction. So far this case is concerned, this was instituted on 7.8.1990 on the report of the petitioner informant and some buckets of elephant brand were seized from the premises of the accused person and police after investigation came to the conclusion that no case is made out only for the reason that the firm of Kanpur used to manufacture some buckets after obtaining Copyright allowing the firm to use elephant brand upon ex parte of injunction from Kanpur Civil Court manufacturing the buckets with elephant brand. 6. On behalf of the petitioner two fold arguments were advanced at this stage. Firstly, the court below committed material irregularity and misdirected himself by dismissing the protest-cum-complaint petition without complying the formalities of Secs. 202 and 203 in the Code of Criminal Procedure and secondly, even on the materials on the record the court below has erred in accepting the final report and there was sufficient ground for proceeding against the Opposite party. 7. So far first point is concerned, it was urged that admittedly from Annexure A/3 it can be said a protest petition in this case which was virtually a complaint in the Court below with all the necessary ingredients required in a complaint on 16.10.1990 with main allegation as against the Investigating Officer and it was prayed that in the event of final report received this may be treated as complaint case and the petitioner may be examined on solemn affirmation and the accused persons may be proceeded against. 8. The learned Additional Chief Judicial Magistrate kept this protest petition on the record and called for the case diary and after hearing both the parties by impugned order dated 10.9.1993 rejected the protest cum complaint petition and accepted the final report. Under the circumstances the court below materially erred because virtually it was a complaint cum protest petition and in that view of the matter under Sec. 202 Cr.P.C. he should have examined the complainant and the witness and thereafter under Sec. 203 of the new Cr.P.C. had the power to dismiss the complaint if in his opinion there is no sufficient ground for proceeding and there was sufficient ground for proceeding then process could be issued under Sec. 204 Cr.P.C. meaning thereby he should have followed the procedure for the complaint cases under Chapter XV of the new Cr.P.C. but that had not been done. Admittedly, neither the complainant was examined on solemn affirmation nor witnesses have been examined in the proceedings which was virtually a complaint petition and rejected the protest petition without following these mandatory provisions and thus the impugned order is apparently bad for non-compliance of the mandatory provisions of Chapter XV of the Code of Criminal Procedure. 9. In support of this contention the petitioners advocate relied upon a Full Bench decision of this Court reported in 1987 BBCJ 792 : 1987 PLJR 751 (Gajendra Swaroop V/s. Baleshwar Prasad Keshri) and also a case decided by the single judge of this Court reported in 1974 PUR 476 (Ramlakhan Mahto V/s. Rameshwar Mahto and Ors. 10. In the case of Ramlakhan Mahto V/s. Rameshwar Mahto, reported in 1974 PLJR 476 the same matter was considered by this Court. Apparently in that case a protest petition was filed which was simply kept on the record by the cognizance court and final report was accepted and the protest petition was rejected and then it was held that the moment a protest petition is filed it is to be treated as complaint petition and if the Magistrate intends to take cognizance of the offence on that basis then he is bound to examine the complainant on oath under Sec. 200 of the Code of Criminal Procedure and he is bound to proceed under Chapter XV of the new Cr.P.C. and only then he can dismiss the complaint under Sec. 203 Cr.P.C. 11. The Full Bench decision of this Court reported in 1987 BBCH 792 : 1987 PLJR 751 also supported the contention of the petitioners advocate that in such situation if a protest petition is filed the cognizance taking Magistrate is duty bound to examine the complainant on oath and after considering the statement on oath, if any, of the complainant and of the witnesses and the result of the enquiry or investigation if any the Magistrate is of opinion that there is no sufficient ground for proceeding then only he can dismiss the complaint and for taking cognizance and for proceeding against the accused he can also look into the report of police if any which is part of the investigation in a criminal case for the reason that Sub-sections (a), (b) and (c) of Sec. 190 Cr.P.C, are not exclusive for the purpose of taking cognizance and there is no watertight compartmentalisation and admittedly the one Clause can overlap the other because admittedly it is for the Magistrate to examine if at all the accused is to be proceeded against or not. 12. Keeping in view of the decisions relied upon by the learned Counsel for the petitioner there is no doubt that the court below has misdirected himself and materially erred in deciding the whole matter. Admittedly, the protest-cum-complaint petition was treated by the learned Additional Chief Judicial Magistrate as a complaint petition and also this fact appears in the impugned order but definitely the mandatory provision of Sec. 200 Cr.P.C. and that of Sec. 203 Cr.P.C. has not been complied with meaning thereby neither the complainant was examined on solemn affirmation nor his witnesses were examined and summarily the court below treated the petition in a casual manner and rejected the same and accepted the final report, so the entire order refusing to take cognizance and to proceed against the accused is vitiated by non-complying with the provision of Sec. 200 Cr.P.C. and onward of new Cr.P.C. meant for dealing with the complaint case, so on this score alone the impugned order is liable to be set aside. 13. So far point No. 2 is concerned, it was vehemently urged on behalf of the petitioner by his learned Counsel that the court below also erred in not ordering for issuance of process though there was ample material before him. 13. So far point No. 2 is concerned, it was vehemently urged on behalf of the petitioner by his learned Counsel that the court below also erred in not ordering for issuance of process though there was ample material before him. In support of this contention he has drawn my attention that admittedly from Annexure-6 it can be said that the petitioner is a registered owner of artistic work entitled Elephant (Logo) which was granted as early as in the year 1983 and subsequently the new Calcutta Bucket Industries, Kanpur obtained certificate of trade mark i.e. Copyright for using the logo elephant for manufacturing the buckets which is more or less similar or deceptively similar to such artistic work on misrepresentation and Copyright registration was obtained without obtaining certificate from the Registrar of Trade Mark and as such the entries made in favour of Kanpur firm for using of elephant brand as a trade mark was duly cancelled by Copyright Board in the year 1991 as evidence from Annexure-6. It was also submitted that the court below also approached the entire enquiry under mis-apprehension and the entire defence of the accused persons was looked into and on that basis complaint petition or the protest petition was dismissed. 14. On the other hand it was submitted on behalf of Opposite party Nos. 2 and 3 that admittedly the accused persons stored for selling the buckets of elephant brand duly manufactured by Kanpur Bucket Industries which also obtained Copyright for using this trade mark and also obtained order of injunction for using this trade mark from Civil Court, Kanpur and it is the duty of this Court making an enquiry to prevent an accused person from being prosecuted by a frivolous complaint. 15. In this connection I have no hesitation to come to conclusion that the entire case is being remitted back to the Additional Chief Judicial Magistrate, Patna city for fresh consideration so it is for the court below to appreciate the available materials on the record while holding enquiry as indicated above. It is not proper to give any specific finding on this point which may cause some prejudice to the court below while using this discretion. It is not proper to give any specific finding on this point which may cause some prejudice to the court below while using this discretion. However, no doubt it is the duty of the court below to prevent frivolous complaint but scope of the enquiry under Chapter XV of the Cr.P.C. meant for complaint case appears to be limited and the court is only required to see if there is material for proceeding against the accused persons and actually he should hot examine the entire materials with a sole aim if all the case and the materials on the record will result in conviction and further more for coming to a conclusion if at all the process is to be issued. The court below is not expected to look into the defence of the accused persons. In a case Chandradeo Singh V/s. Prakash Chandra Base and. Ors., 1964, 1 SCR 639 also laid a principle which still hold good that the accused has no locus standi to contest the criminal case before issue of process and it appears from the impugned order of the learned Additional Chief Judicial Magistrate that the relied upon the entire defence of the accused and on that basis rejected the protest cum complaint petition without applying his mind on the basis of materials adduced on behalf of the complainant-informant, and on this score also the impugned order is liable to be set aside. 16. So in view of the discussions made above it is clear that the learned Additional Chief Judicial Magistrate, Patna city completely ignored the provisions of Sec. 200 Cr.P.C. and provision of Chapter XV while dealing with the protest petition which is completely a complaint petition and as such the impugned order dated 10.9.1993 passed in Patna city Chowk Police Station Case No. 135/90 is hereby set aside and the case is remanded back to the learned Additional Chief Judicial Magistrate Patna city with a clear direction to treat the protest petition as complaint petition in the light of observations made above and he should examine the complainant on solemn affirmation as required under Sec. 200 Cr.P.C. and if he so likes he may also examine the witnesses to be adduced on behalf of the complainant and after observing the provision of Chapter XV of the Code of Criminal Procedure pass necessary order according to law. 17. 17. In the result this application is allowed but parties will bear their own cost.