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2012 DIGILAW 751 (RAJ)

Ankit v. State of Rajasthan

2012-03-27

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant misc. petition has been preferred by the petitioners challenging the order dated 11.1.2011 passed by the learned Additional Sessions Judge (FT) No.1, Pali Camp Jaitaran, District Pali in revision upholding the order dated 10.9.2009 passed by the learned Judicial Magistrate, Bar in Criminal Case No.665A/2004 framing charges against the petitioners for the offences under Sections 482, 483 and 486 I.P.C. and Sections 63 and 68 of the Copyright Act, 1957. 2. Succinctly stated the facts necessary for the disposal of the instant misc. petition are that the S.H.O., P.S. Sendra, District Pali acting on a prior information, is said to have searched a white bolero vehicle no.RJ 36 G 0277 on2 20.6.2004 and on the search being taken, two persons were found sitting in the vehicle namely, Bheem Singh driver and Ankit. From the vehicle, six cartons containing various packaging of ghee were recovered. Each of the cartons was having the label of Government of India and the goods were said to be of Mangla Trading but was bearing no logo or address. The two persons named above on enquiry being made disclosed that they were taking the goods for one Naval Kishore. On the basis of recovery proceedings, FIR No.122/2004 was registered and investigation commenced. On the conclusion of the investigation, a charge-sheet was filed for the offences mentioned above and the learned Magistrate proceeded to frame the charges against the petitioners vide impugned order dated 10.9.2009. The order framing charges was challenged in revision which too has been rejected vide order dated 11.1.2011. It is in these circumstances that the instant petition has been filed by the petitioners seeking quashing of the charges as well as all subsequent proceedings sought to be taken against the petitioners in this case. 3. Learned counsel for the petitioner has submitted that in this case, the charges which have been framed against the petitioners are absolutely groundless. It is also submitted that neither there is any complaint of anybody holding a particular trademark or copyright nor there is any3 witness who has stated that he was cheated by the petitioners by the usage of the allegedly fraudulent or counterfeit property mark. Thus, it is argued that the order framing charges is absolutely an abuse of process of court and the revisional court's order affirming the same is also illegal. Thus, it is argued that the order framing charges is absolutely an abuse of process of court and the revisional court's order affirming the same is also illegal. It is also submitted that there is no material on the record of the case by way of a chemical examiner's report for showing that the ghee recovered was adulterated. Hence, it is prayed that the orders impugned deserves to be quashed. 4. Learned PP has supported the orders of the courts below and has submitted that since the petitioners no.1 and 2 were found carrying ghee for which they were not having valid documents, the prosecution of the petitioners for the offences mentioned above, cannot be said to be unjustified. Therefore, he submitted that the instant misc. petition deserves to be dismissed. 5. I have given my thoughtful consideration to the arguments advanced at the bar and have carefully perused the record. 6. After hearing learned counsel for the parties and on the perusal of the record, it is the undisputed situation that there is no statement of any witness or any other material or document on the record of the case to show that the petitioners had infringed the copyright or trademark held by4 any other person. For the purpose of sustaining a charge under Sections 63 and 68 of the Copyright Act, firstly, the prosecution has to prima-facie show that the petitioners were found infringing the copyright held or claimed to be of somebody else. Section 51 of the Copyright Act defines the infringement of a copyright and when there is an infringement of the copyright, consequently the person who infringes the copyright is liable to be prosecuted in accordance with Sections 63 and 68 of the Copyright Act. Sections 51, 63 and 68 of the Copyright Act read as under:- "51. When copyright infringed. Section 51 of the Copyright Act defines the infringement of a copyright and when there is an infringement of the copyright, consequently the person who infringes the copyright is liable to be prosecuted in accordance with Sections 63 and 68 of the Copyright Act. Sections 51, 63 and 68 of the Copyright Act read as under:- "51. When copyright infringed. - Copyright in a work shall be deemed to be infringed (a) when any person, without a licence granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or (ii) permits for profit, any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or (b) when any person (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or (ii) distributes either for the purpose of trade or to such an extent as to affect pre-judicially the owner of the copyright, or (iii) by way of trade exhibits in public, or (iv) imports into India, any infringing copies of the work : [Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.] Explanation.For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an "infringing copy". 63. Offence of infringement of copyright or other rights conferred by this Act. 63. Offence of infringement of copyright or other rights conferred by this Act. - Any person who knowingly infringes or abets the infringement of:- (a) the copyright in a work, or (b) any other right conferred by this Act 1[except the right conferred by Section 53-A], shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees : Provided that where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees. Explanation.Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section. 68. Penalty for making false statements for the purpose of deceiving or influencing any authority or officer. - Any person who, (a) with a view to deceiving any authority or officer in the execution of the provisions of this Act, or (b) with a view to procuring or influencing the doing or omission of anything in relation to this act or any matter thereunder, makes a false statement or representation knowing the same to be false, shall be punishable with imprisonment which may extend to one year, or with fine, or with both." 7. From a perusal of the aforesaid provisions of the Copyright Act, it becomes apparent that before the person can be prosecuted for infringement of Copyright Act, there has to be material available on the record of the case to6 show that the accused was infringing the copyright held by some other person. 8. As is apparent from the discussion made above that in the present case, there is no statement or other document from which it can be inferred that the goods which were being carried by the petitioners no.1 and 2 were bearing the counterfeit copyright held by some other person. This Court earlier had an occasion to deal with almost a similar situation in the case of State of Rajasthan v. Prem Chand reported in 2002(2) Cr.L.R. (Raj.) 1478 . This Court earlier had an occasion to deal with almost a similar situation in the case of State of Rajasthan v. Prem Chand reported in 2002(2) Cr.L.R. (Raj.) 1478 . This Court held that in absence of any material to disclose as to who was the person who had copyright in connection with the material recovered, the prosecution of an accused could not be permitted to be continued. 9. From the discussion made above, it can easily be concluded that there is no material available on the record of the instant case to show that the petitioners infringed the copyright held any other person. Resultantly, this Court is of the opinion that the prosecution of the petitioners in this case for the alleged violation of the Copyright Act cannot be sustained. Once the prosecution for the violation of the Copyright Act is found to be nonest, then as a corollary thereto, the prosecution for the offences under Sections 482, 483 and 486 IPC can also not be continued. Hence, the charges which have been framed against the petitioners in this case are absolutely unfounded and groundless. 10. Resultantly, the misc. petition succeeds and the orders dated 10.9.2009 and 11.1.2011 passed by the learned Judicial Magistrate, Bar and the learned Additional Sessions Judge (FT) No.1, Pali Camp Jaitaran, District Pali respectively and all proceedings in pursuance thereto are hereby quashed.Stay petition also stands disposed of. *******