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1985 DIGILAW 255 (MAD)

Muppala Manganayakamma v. K. Ramalakshmi

1985-06-10

SRIRAMULU

body1985
Judgment: 1. Smt. Muppala Ranganayakamma laid a complaint under section 63 of Copy Right Act of 1957 and section 190 of Criminal Procedure Code against the respondents 1 to 5 herein with the allegation that she is the Authoress of the novel “IDE NA NAYAM”, that in the year 1966 the same was published as a serial in “Yuva” a leading Telugu magazine and later got the novel published in a book form in the year 1968. She claimed that being the Authoress, she acquired copy right in the said novel. She further contended that all the respondents herein infringed her exclusive copy right in the said novel by making Cinematograph film under the title “Gorintaku” substantially adopting the story of the said novel written by her with the same sequence of events, several incidents, expressions and sentiments with minor variations to suit the screen and sentiments of the cinema public and to make the film appear as though it is not a replica of the novel. The film was released on 19.10.1979 and was being exhibited throughout the State of Andhra Pradesh and in some theatres of Tamil Nadu, Karnataka and Orissa and that the film was being exhibited in Sobhana (Balanagar) Sridevi, Alankar and Shanti Theatres. According to her, the first respondent herein is shown as the story writer and the 2nd respondent is shown as script writer (screen, adaption and dialogues). The 3rd and 4th respondents herein are shown as producers of the said film under the banner of “Yuva Chitra” and. the 5th respondent herein is shown as the Distributor of the said film. 2. The respondent herein in their petition Crl.M.P.No.1492 of 1980 raised a preliminary objection as to the maintainability of the complaint and contended that the film “Gorintaku” was picturised and shot at Visakhapatnam, that the respondents 1 to 4 are the residents of Madras and the 5th respondent is the Distributor at Vijayawada, the film was produced at Madras, that respondents 1 and 2 were not the owners of the film by the time the film was completed, that the complainant herself got printed the novel “Ide Na Nyayam” at Vijayawada and that the infringement and cause of action did not arise and as such the court has no jurisdiction to try the case. It was further contended that on the basis of the allegations made in the complaint that offence can at best be deemed to have been committed at Madras where the film was produced and the sequences also ensued at Madras by way of the alleged infringement or copy right written by the complainant. The learned Magistrate was of the view that having regard to the provisions of sections 177 and 182, Cr.P.C. it cannot be said that the alleged offence of infringement or copy has been committed within the territorial jurisdiction of the Court of Hyderabad and further observed that in view of the fact that the complainant has not chosen to proceed against the exhibitor who caused the film to be screened at Sobhana Theatre, Balangar and other theatres within the jurisdiction of the Court at Hyderabad, it has no territorial jurisdiction to entertain the criminal complaint. Accordingly, he returned the complaint to the petitioner herein for presentation to the proper court. It is against the order passed by the learned Magistrate returning the complaint for presentation to proper court, this revision is directed. 3. In this revision, the only contention urged by the learned Counsel for the petitioner is that the impugned order of the learned Magistrate expressing lack of territorial jurisdiction is illegal, irregular and contrary to law and facts of the case. He further contended that the entire process from the stage of writing of the story and dialogues, making and editing the film, distribution of the film and exhibiting the film on the screen constitutes the offence of infringement of Copyright under the Copyright Act, 1957 and that the courts at any one of such places have got jurisdiction to entertain the case. 4. The case of the revision petitioner is that the petitioner is the original author of the novel with the title “Ide Na Nyayam” that she has acquired copyright in the said novel and that the respondents 1 to 5 herein have infringed the exclusive copyright of the petitioner from the said novel by making a film under the title “Gorintaku” substantially adopting the story of the said novel written by the petitioner. The same sequences of events, several incidents, expressions and sentiments except minor variations to suit the screen and cinema public and to make the film appear that it is not the replica of the novel “Ide Na Nyayam” and that the said film “Gorintaku” was exhibited in various theatres of Andhra Pradesh, Karnataka, Tamil Nadu and Orissa after it was released on 19.10.1979 and that at the time of the complaint, the film was being exhibited in Shobhana Theatre at Balanagar. It is not in dispute that the petitioner has not registered the novel “Ide na Nyayam”. The Indian Copyright Act, 1914 had no where made any provision for the registration of the copyrights. Under sections 44 and 45 of the Copyright Act, 1957, provision is made for registration of the copyright. The object behind the enactment of section 44 of the said Act was not to make registration compulsory or mandatory for the purpose of enforcement of copyright. It provided an option. It was, therefore, not obligatory for an author to get the copyright registered under section 44 of the said Act for the purpose of acquiring rights conferred by it. The registration only raised a presumption that the person shown is the actual author. The presumption was not conclusive but where contrary evidence was nor forthcoming, it was not necessary to render further proof to show that the copyright vested in the person mentioned in the register. Section 48 of the Copyright Act provides that the registration of Copyright Act shall be prima facie evidence of particulars entered therein and shall be admissible in evidence in all courts without further proof or production of the original. If the legislature intended to make the requirement of registration mandatory, the language of section 44 would have been different. It could be on the lines of section 69 of the Partnership Act. There is no provision in the Act depriving an author of the rights conferred by this Act on account of non-registration of the copyright. 5. Reference may also be made to section 13 of the Copyright Act which deals with “works in which copyright subsists.” Section 17 lays down that subject to the provisions of this Act, the author of a work shall be the first owner of the copyright. 5. Reference may also be made to section 13 of the Copyright Act which deals with “works in which copyright subsists.” Section 17 lays down that subject to the provisions of this Act, the author of a work shall be the first owner of the copyright. There is nothing in either of these two sections which provided for the registration of copyright as a condition precedent for acquiring a right in it. The common law right of property in literary or intellectual production exist independently of the statute. It belongs essentially to the owner. He has the sole and exclusive right over it. 6. Chapter XI deals with infringement of copyright. In this respect, reference may be made to section 51 of the Act which lists the various grounds on which copyright in a work shall be deemed to be infringed. Section 55 provides the remedies for infringement of copyright. Reading these sections together, one would find that there is nothing in these provisions which makes registration compulsory for availing the remedy provided for. 7. In A.Sudarsan v. A.C.Thirulokchandra A.Sudarsan v. A.C.Thirulokchandra (1973)2 MLJ. 290 ; Satsang v. Kiron Chandra Satsang v. Kiron Chandra A.I.R. 1972 Cal. 533 ; Mishra Bandhu Karyalaya v. S.Koshal Mishra Bandhu Karyalaya v. S.Koshal A.I.R. 1970 M.P. 261 ; E.Errabhadra Rao v. B.N.Sarma E.Errabhadra Rao v. B.N.Sarma A.I.R. 1960 A.P. 415, Kumari Kanaka v. Sundararajan Kumari Kanaka v. Sundararajan (1972) Ker.L.R. 536 and NavSahitya Prakash v. Anand Kumar NavSahitya Prakash v. Anand Kumar A.I.R. 1981 All 200 it was held that under the Copyright Act regardless of registration an author acquires a copyright in his work and non-registration thereof does not disable the owner of a copyright for bringing an infringement action. Registration is not a prerequisite for acquisition of a copyright. 8. Thus, the petitioner herein in spite of the act that she has not registered her novel “Ide Na Nyayam” under the provisions of Copyright Act, she is entitled to initiate criminal action against the respondents herein and establish her case. 9. The next question that arises for consideration is whether the Judicial First Class Magistrate, Hyderabad West and South, Rangareddy District has territorial jurisdiction to try the case against the respondents herein for an alleged offence under section 63 of the Copyright Act, 1957 and under section 190, Cr.P.C. 10. 9. The next question that arises for consideration is whether the Judicial First Class Magistrate, Hyderabad West and South, Rangareddy District has territorial jurisdiction to try the case against the respondents herein for an alleged offence under section 63 of the Copyright Act, 1957 and under section 190, Cr.P.C. 10. The main contention that was raised by the respondents before the trial Magistrate by filing an application was that the Judicial First Class Magistrate Court, Hyderabad East and West, Rangareddy District, had no jurisdiction to entertain the complaint filed by the revision petitioner herein, because the complainant was a resident of Hyderabad, her novel ‘Ide Na Nyayam’ was published at Vijayawada, the film ‘Gorintaku’ was picturised and shot at Visakhapatnam, the film was produced at Madras, the respondents 1 to 4 are the residents of Madras and the 5th respondent is the Distributor of film at Vijayawada. The first respondent described as the author of the film ‘Gorintaku’ wrote the script at Madras and he was also a resident of Madras. The second respondent, who is the Director of the film, was the resident of Madras and the direction of the film must have taken place at Madras. Respondents 3 and 4, who are producers of “Yuva Chitra” and also the film ‘Gorintaku’ produced it at Madras and they were also residents of Madras. The 5th respondent is a resident of Vijayawada and distributes the films from Vijayawada. Thus, according to the respondents, the script writing film shooting, production of the film and distribution of the film did not take place within the jurisdiction of the court below. The only act alleged to have taken place is the exhibition of the film in Shobana Theatre at Balanagar which was within the jurisdiction of the Court of the lower Magistrate. But the complaint does not purport to initiate any action against the Proprietor or the person, who runs Sobhana Theatre at Balanagar, which was within the jurisdiction of the Court of the lower Magistrate. Assuming for arguments sake, before the merits of the case are gone into that the film which is treated as an infringed copy, no part of the offence was committed by any of the respondents within the jurisdiction of the Court of the Judicial First Class Magistrate, Hyderabad East and West in Rangareddy District. Assuming for arguments sake, before the merits of the case are gone into that the film which is treated as an infringed copy, no part of the offence was committed by any of the respondents within the jurisdiction of the Court of the Judicial First Class Magistrate, Hyderabad East and West in Rangareddy District. So far as the Copyright Act, 1957 is concerned, there is a specific provision contained in section 62 relating to the place of suing in a civil proceeding. There is no specific provisions in the Copyright Act, 1957 regarding the place of suing for the commission of a criminal offence. One has, therefore, to come to the provisions of the Criminal Procedure Code for finding out whether the Judicial First Class Magistrate, Hyderabad East and West could entertain the complaint filed by the petitioner herein. The provisions of the Criminal Procedure Code regarding place of enquiry and trial in Chapter XV are the only provisions which would help a Criminal Court in finding out whether it has jurisdiction. 11. In para.2 of the complaint, the allegation was made that the film was released on 19.10.1970 and was running at several centres throughout the State of Andhra Pradesh and at some centres of the States of Tamil Nadu, Karnataka and Orissa and in twin Cities of Hyderabad and Secunderabad, the film was exhibited in Sobhana (Balanagar), Sridevi, Alankar and Shanti Theatres. In para. II of the complaint, a bald allegation was made that since the accused have produced the film “Gorintaku” by adopting the novel ‘Ide Na Nyayam’ without the consent or assignment of the rights from the complainant, the accused have infringed the copyright of the complainant which is an offence punishable under section 63 of the Copyright Act, 1957 within the jurisdiction of this Honourable Magistrate. Thus, if the allegations in para.2 are to be taken into consideration to show that the infringement took place on account of exhibiting the film in twin cities of Hyderabad and Secunderabad, it cannot be said that the Judicial First Class Magistrate. Hyderabad East and West, which is in Rangareddy District has jurisdiction to try the case. 12. Thus, if the allegations in para.2 are to be taken into consideration to show that the infringement took place on account of exhibiting the film in twin cities of Hyderabad and Secunderabad, it cannot be said that the Judicial First Class Magistrate. Hyderabad East and West, which is in Rangareddy District has jurisdiction to try the case. 12. The bald allegation made in para.11 of the complaint is taken into consideration to show that the infringement of the copyright took place on account of the production of the film, the act of the production of the film did not take place within the jurisdiction of the Court of the Judicial First Class Magistrate, Hyderabad East and West in Rangareddy District. 13. As already observed by me above, so far as the Copyright Act, 1957 is concerned, there is no specific provision regarding the place of suing for the commission of a criminal offence. The complainant has mentioned the provisions of section 63 of the Copyright Act and section 190 of the Criminal Procedure Code in the complaint. Section 63 of the said Act merely deals with the offence of infringement of copyright and the punishment prescribed therefor. Section 190, Cr.P.C. provides that the Magistrate specified therein may take cognizance of the offence upon receiving a complaint etc. The power of taking cognizance under this section is a special power which does not belong to all Magistrate although they may be competent to try the accused. The power belongs to only Magistrates mentioned in this section. Section 177, Cr.P.C. lays down that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. It is a general principle of law that all crimes are local. In other words, the jurisdiction to try a person for an offence depends upon the crime having been committed within the area of such jurisdiction and not upon either the place where the offender is fined or upon his nationality. The question of jurisdiction shall be determined by a reference to the provisions, of the Code. It is a question of fact and does not depend upon the attitude adopted by the parties and the acquiesces of the accused cannot create jurisdiction where otherwise there is none. The jurisdiction is primarily to be decided on the allegations in the complaint. The question of jurisdiction shall be determined by a reference to the provisions, of the Code. It is a question of fact and does not depend upon the attitude adopted by the parties and the acquiesces of the accused cannot create jurisdiction where otherwise there is none. The jurisdiction is primarily to be decided on the allegations in the complaint. Having regard to the definition of ‘offence’ in section (n) the rules of Chapters XIII and XIV etc., determined the place of enquiry for trial in respect of all offence whether under the general law or under any special or local law. It is only the Court within whose local limits an offence has been committed that has jurisdiction to try it. 14. In Kali Dass v. Karam Chand Kali Dass v. Karam Chand (1917) 18 Crl.L.J. 353 the accused were charges with the infringement of copyright, in a book of which the complainant was the author by printing it for sale at Lahore without his permission. It was held that the Lahore Court alone had jurisdiction under section 177, Cr.P.C. to enquire into and try the offence. 15. In J.N.Bagga v. A.I.R. Limited J.N.Bagga v. A.I.R. Limited A.I.R. 1969 Bombay 302 charge was that the accused committed the offence under section 51(b)(1) of the Copyright Act and the question that arose in that case was whether the criminal Court at Nagpur where the complaint was lodged against the accused had jurisdiction to entertain the complaint. It was observed in that case that inasmuch as there is no specific provision in the Copyright Act, 1957 regarding the place of suing for the commission of a criminal offence, section 177, Cr.P.C. alone is applicable. The offence of infringement of copyright is complete as soon as the script infringing the copyright is printed or written or a film produced according to the script, and it does not depend for its completion upon the ensuing of any consequence, such as is contemplated by section 179, Cr.P.C. Therefore, the offence has to be enquired into and tried under section 177, Cr.P.C. where the infringing film was produced. A complaint must indicate as to how the offence complained of was committed within the territorial jurisdiction of the Court in which the complaint is filed. A complaint must indicate as to how the offence complained of was committed within the territorial jurisdiction of the Court in which the complaint is filed. It is open to the Magistrate to dismiss a complaint if the existence of a territorial jurisdiction is not indicated in the complaint itself or in the examination of the complainant under section 200, Cr.P.C. The question of jurisdiction is to be decided fey a perusal of the complaint. It is on the presumption of the complaint that the Magistrate has first to inform himself as to the nature in the case and to say whether he has jurisdiction to entertain it. (Vide B.Patnaik v. Mrs.Brinnand B.Patnaik v. Mrs.Brinnand A.I.R. 1970 Cal. 190.) The learned Magistrate was perfectly justified in passing the order holding that he has no jurisdiction to try the suit. 16. In the result, the revision is dismissed. Criminal Revision dismissed.