A short note on a recent Supreme Court judgment pertaining to a transfer petition involving a trademark dispute

Rajkumar Sabu vs M/S Sabu Trade Private Limited

Background

The petitioner, claiming to be the owner of the mark ‘SACHAMOTI’, filed a suit against the respondent before the Delhi High Court in 2016 alleging infringement and passing off by the respondent. The respondent filed a private complaint in 2016 against the petitioner before the Judicial Magistrate No. IV, Salem under Section 420 of the Indian Penal Code (Cheating and dishonestly inducing delivery of property) and Section 103 of the Trademarks Act (Penalty for applying false trademarks, trade descriptions etc). The Magistrate took cognizance of the matter and proceedings are on. The petitioner filed the transfer petition under Section 406 of CrPC (Power of Supreme Court to transfer cases and appeals) to transfer the criminal case from Salem to Patiala House, New Delhi.

The transfer petition, filed by the petitioner, puts forward the following arguments (paragraph 5):

1. The civil proceedings and criminal proceedings are essentially dealing with the same subject matter.
2. The proceedings before the Salem Court is in Tamil which the petitioner cannot understand.
3. Considering that the respondent is influential, the petitioner apprehends an unfair trial in the Salem court.

The respondent presented the following counter-arguments (paragraph 6)

1. The transfer petition has been filed when the criminal proceedings before the Salem Court are at advanced stages.
2. The civil and criminal proceedings should not be mixed up.
3. Credible materials have not been presented to substantial the apprehension of unfair trial before the Salem Court.

Judgment

Dismissing the Transfer Petition, the Court held the following:

• There can be common elements in civil and criminal proceedings. That cannot be a ground for entertaining the transfer petition. (para 7)
• The apprehension of tainted trial is unsubstantiated and does not meet the criteria laid down in earlier judgments. (para 7)
• Language can be the criterion for determining the appropriate court when the case is to be transferred. But language cannot be the criterion for granting the transfer petition. (para 8)
• Convenience of one of the parties cannot be a ground for invoking Section 406 of CrPC (para 10). The given fact-situation is to be distinguished from that of the fact-situation in the Supreme Court judgment in Mrudul M. Damle & Anr. v. CBI (2012) 5 SCC 706 where transfer petition was granted. In Mrudul M. Damle & Anr, the transfer petition was granted for the reason that most of the witnesses and accused themselves were based out of a different jurisdiction.
• Section 406 of CrPC (Power of Supreme Court to transfer cases and appeals)  is to be sparingly exercised and a mere apprehension is not enough.

Comments

The Court held that the convenience of one of the parties cannot be a ground for invoking its powers under Section 406 of CrPC. If taken in its absolute sense, this dictum goes against the earlier judgments of the Supreme Court in Jayendra Saraswathy Swamigal v. State of Tamil Nadu (2005) 8 SCC 771, Abdul Nazar Madani v. State of Tamil Nadu (2000) 6 SCC 204 and Mrudul M. Damle & Anr. v. CBI (2012) 5 SCC 706. Convenience of one of the parties was taken into account by the Supreme Court in the past. Therefore, the principle has to be appreciated in a milder form. What should matter is, therefore, the degree of convenience and whether it will cause significant prejudice to the party.

As on the language factor, according to my mind, it is not clear whether the reasoning is  in consonance with its earlier judgment in Jayendra Saraswathy Swamigal v. State of Tamil Nadu (2005) 8 SCC 771 where the Court held as follows: “In our opinion, while directing transfer of a criminal case the language spoken by the witnesses assumes great importance as translation of deposition of a witness apart from being a difficult job, often does not carry the same sense which the witness wants to convey. The convenience of the prosecuting agency, especially in a case where there are large number of witnesses and documents, has also an important bearing. We are, therefore, of the opinion that the case may be transferred to Pondicherry as there will be no difficulty in recording the evidence in the same language in which almost all the witnesses would depose and with which the presiding judge would be familiar. It is only at a short distance from Kanchipuram and the witnesses would not face much inconvenience in going there.” (paragraph 25) As you can see, in Jayendra Saraswathi Swamigal, the language spoken by the witnesses and the convenience of the prosecution agency were taken into account. One can argue that the language was factored-in by the SC only when the apposite court was to be determined for transfer of case.

Let me stop here and raise a counter-factual: What if all or most of the witnesses before the Salem Court did not understand Tamil? As the Court rightly pointed out, translation has its limitations. If that is the case, shouldn’t language be a criterion for determining the transfer petition? According to me, the SC judgment does not offer robust reasoning on this front.