IN THE HIGH COURT OF DELHI AT NEW DELHI
  
  
  
  W.P.(C) 1006/2014
  
  
  
  TELEFONAKTIEBOLAGET LM ERICSSON (PUBL).... Petitioner
  
  Through Mr. C.S. Vaidyanathan and
  
  Mrs. Pratibha M. Singh, Senior Advocates with Mr. Anand Pathak, Mr. Ravi
  Nair, Mr. Ashutosh Kumar, Mr. Shivanghi Sukumar, Mr. Akshay Nanda, Mr. B.
  Prashant Kumar, Mr. Arjun Mukherjee, Mr. Arjun Khera, Ms. Saya Chaudhary
  and Mr. Archit Virmani, Advocates
  
  
  
  
versus
  
  
  
  COMPETITION COMMISSION OF INDIA and ANR. ... Respondents
  
  Through Mr. Sidharth Luthra, ASG with
  
  Mr. Pankaj Seth and Mr. Arjun Dewan, Advocates for R-1/CCI.
  
  Dr. Satyaprakash, Director (Law) and Mr. Sukesh Mishra, Joint Director
  (Law), CCI.
  
  
  
  Mr. Balbir Singh with Mr. Vaibhav Gaggar, Mr. Aaditya Vijaykumar, Ms.
  Aparna Iyer, Ms. Monica Benjamin and Mr. K. Kunal Sabharwal, Advocates
  for R-2.
  
  
  
  CORAM:
  
   HON'BLE MR. JUSTICE MANMOHAN
  
  
  
   O R D E R
  
   17.02.2014
  
  
  
  Cav. 144/2014 in W.P(C) 1006/2014
  
  Since the caveator has already put in appearance, the caveat
  petition stands disposed of.
  
  CM Appl. 2038/2014 in W.P.(C) 1006/2014
  
  CM Appl. 2040/2014 in W.P.(C) 1006/2014
  
  
  
  Allowed, subject to just exceptions.
  
  
  
  W.P.(C) 1006/2014 and CM Appl. 2037/2014
  
  Present writ petition has been filed primarily challenging the
  orders dated 28th November, 2013 and 16th January, 2014 passed by
  respondent no. 1-Competition Commission of India (for short
  ?Commission?).
  
  Issue notice.
  
  Mr. Pankaj Seth, Advocate accepts notice on behalf of respondent no.
  1-Commission. Mr. Balbir Singh, Advocate accepts notice on behalf of
  respondent no. 2.
  
  Mr. C.S. Vaidyanathan, learned senior counsel appearing for
  petitioner submits that the respondent no.1-Commission has no
  jurisdiction to investigate the action of the petitioner inasmuch as the
  Patent Act itself provides adequate mechanism to balance the rights of
  patentee and other stakeholders. In support of his submission, he relies
  upon Sections 3(5)(i) and 62 of the Competition Act, 2002.
  
  Mr. Vaidyanathan points out that respondent no. 2 has already filed
  five applications before Intellectual Property Appellate Board seeking
  revocation of petitioner?s patents. He states that the said fact has
  been suppressed from the Commission.
  
  Mr. Vaidyanathan also refers to the prayer clause of the petition
  filed by respondent no.2 and states that respondent no. 1 can neither
  entertain nor grant any of the reliefs.
  
  Mr. Vaidyanathan points out that Commission in the impugned order
  dated 16th January, 2014 has referred to and relied upon an earlier order
  passed by it In Re: Micromax Informatics Limited Vs. Telefonaktiebolaget
  LM Ericsson (Publ), Case No. 50/2013 against which a writ petition was
  filed, wherein this Court has already passed an interim order on 21st
  January, 2014.
  
  Mr. Vaidyanathan also contends that the Commission has rejected
  petitioner?s request for treating four documents filed by respondent no.
  2 as confidential, contrary to Commission?s own earlier order dated 15th
  October, 2013.
  
  Mr. Sidharth Luthra, learned Additional Solicitor General appearing
  for respondent no. 1-Commission submits that by virtue of Section 32 of
  Competition Act, 2002, Commission has jurisdiction to even investigate an
  
  agreement or abuse of dominant position by a party outside India. Learned ASG draws this Court?s attention to a judgment of Supreme Court
  in Competition Commission of India vs. Steel Authority of India Limited
  and Another, (2010) 10 SCC 744 wherein it has been held that an order
  passed under Section 26(1) of the Competition Act, 2002 is an
  administrative order and an aggrieved party has a right to challenge it
  at Section 26(7) stage.
  
  Mr. Luthra also relies upon a judgment of the Supreme Court in
  Sanapareddy Maheedhar Seshagiri and Another Vs. State of Andhra Pradesh
  and Another, (2007) 13 SCC 165 wherein it has been held as under:-
  
  ?31. A careful reading of the abovenoted judgments makes it clear that
  the High Court should be extremely cautious and slow to interfere with
  the investigation and/or trial of criminal cases and should not stall the
  investigation and/or prosecution except when it is convinced beyond any
  manner of doubt that FIR does not disclose commission of any offence or
  that the allegations contained in FIR do not constitute any cognizable
  offence or that the prosecution is barred by law or the High Court is
  convinced that it is necessary to interfere to prevent abuse of the
  process of the Court. In dealing with such cases, the High Court has to
  bear in mind that judicial intervention at the threshold of the legal
  process initiated against a person accused of committing offence is
  highly detrimental to the larger public and societal interest. The people
  and the society have a legitimate expectation that those committing
  offences either against an individual or the society are expeditiously
  brought to trial and, if found guilty, adequately punished. Therefore,
  while deciding a petition filed for quashing FIR or complaint or
  restraining the competent authority from investigating the allegations
  contained in FIR or complaint or for stalling the trial of the case, the
  High Court should be extremely careful and circumspect. If the
  allegations contained in FIR or complaint disclose commission of some
  crime, then the High Court must keep its hands off and allow the
  investigating agency to complete the investigation without any fetter and
  also refrain from passing order which may impede the trial. The High
  Court should not go into the merits and demerits of the allegations
  simply because the petitioner alleges malus animus against the author of
  FIR or the complainant. The High Court must also refrain from making
  imaginary journey in the realm of possible harassment which may be caused
  to the petitioner on account of investigation of FIR or complaint. Such a
  course will result in miscarriage of justice and would encourage those
  accused of committing crimes to repeat the same. However, if the High
  Court is satisfied that the complaint does not disclose commission of any
  offence or prosecution is barred by limitation or that the proceedings of
  criminal case would result in failure of justice, then it may exercise
  inherent power under Section 482 CrPC.?
  
  
  
  Mr. Luthra also places reliance upon the order passed by High Court
  of Bombay in W.P.(C) 1785/2009, Kingfisher Airlines Limited vs.
  Competition Commission of India.
  
  Mr. Balbir Singh, learned counsel for respondent no. 2 refers to
  observation of the Commission in paragraph nos. 15, 16 and 17 to submit
  that the case falls under Section 4 and not Section 3 of the Competition
  Act, 2002.
  
  Having heard learned counsel for the parties and having perused the paper book, this Court is prima facie of the view that a substantial
  question of jurisdiction of respondent no. 1-Commission to entertain
  respondent no. 2?s petition arises in the present proceedings.
  
  This Court is further of the view that judgment of the Supreme Court
  in Sanapareddy Maheedhar Seshagiri and Another (supra) has no relevance
  to the present case, as in the aforesaid case proceedings arose under the
  criminal law and it is a settled law that proceedings before an
  authority/tribunal can be stayed in writ proceedings even at the
  inception stage if they are prima facie without jurisdiction.
  
  Upon a perusal of the impugned orders dated 28th November, 2013 and
  16th January, 2014, this Court is also prima facie of the view that the
  Commission has entered into an adjudicatory and determinative process by
  recording detailed and substantial reasoning at the Section 26(1) stage
  itself. In fact, by virtue of the impugned order, this Court is prima
  facie of the view that, even though the Commission in the penultimate
  paragraph has stated that the impugned order shall not tantamount to a
  final expression of opinion on merit of the case, the petitioner?s remedy
  under Section 26(7) has been rendered illusory.
  
  Consequently, present petition is tagged with W.P.(C) 464/2014 and
  is directed to be listed on 26th May, 2014 before Joint Registrar for
  completion of pleadings. Till the next date of hearing, while the
  petitioner may give information as called upon by the Director General of
  Commission, no final order/report shall be passed either by the
  Commission or by its Director General.
  
  Though the Director General of Commission is free to call any local
  officer of the petitioner for investigation purposes, but no officer
  stationed abroad shall be called without taking specific leave of this
  Court.
  
  It is also made clear that the observations made by the Commission
  shall not come in the way of the petitioner negotiating with third
  parties or in the adjudication of the proceedings filed by either of the
  parties in this Court. Further, documents referred to in the order dated
  28th November, 2013 may be used by the Commission for its investigation
  purpose, but shall not be disclosed/released to any third party.
  
  
  
  
  
  MANMOHAN, J
  
  FEBRUARY 17, 2014
  
  rn
  
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