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2014 DIGILAW 264 (CHH)

Bablu Alam v. State of Chhattisgarh

2014-07-15

SANJAY K.AGRAWAL

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ORDER Sanjay K. Agrawal, J. 1. Invoking the revisional jurisdiction of this Court under Section 397/401 of the Code of Criminal Procedure (henceforth 'Cr.P.C.'), sole applicant Bablu Alam has preferred this revision challenging the order dated 11.03.2004 passed by 4th Additional Sessions Judge (Fast Track Court), Raigarh affirming his conviction for the offence under Sections 51 of the Copyright Act, 1957 (henceforth 'Act, 1957') punishable under Section 63 of the Act, 1957 whereas modified the sentence of imprisonment for one year to imprisonment for six months and further reduced the fine sentence from Rs. 50,000/- to Rs. 25,000/-. Core facts as projected by the prosecution during the course of trial are as under:-- 1.1 On 8.8.2001 at about 5.30 p.m. near Jagdamba Ashram, Chakradhar Nagar Road, Raigarh, on the written report (Ex. P-1) of J.S. Parihar, Senior Investigator (PW-1), I.M.I. Company, the police officer seized 104 duplicate audio cassettes and 56 forged audio cassettes of different companies, for which copyright was reserved in favour of certain companies, which was being offered for sale to customers and in such cassettes; name and address of the person who has made it and the name and address of the owner of the copyright in such work and the year of its first publication was not mentioned, which is in contravention of Sections 51 and 52A of the Act, 1957 punishable under Sections 63, 68A of the Act, 1957, and thereafter, after due investigation, charge-sheet for the aforesaid offences were preferred against the applicant in the jurisdictional criminal court. 1.2 On charges put to the accused/applicant, he pleaded no guilty and entered into defence by stating that prosecution case is out and out false and he has been falsely implicated in the offence in question. 1.3 In order to establish the charges so levelled, prosecution has examined four witnesses and brought 24 documents in support of its case, whereas applicant has examined two witnesses in his defence namely Mohd. Sammem (DW-1) and Vimal Kumar (DW-2) but no document has been brought on record. 2. Upon appreciation of oral and documentary evidence available on record, trial Magistrate by its order dated 7.8.2003 found the applicant's guilty for offence under Section 51 of the Act, 1957 punishable under Section 63 of the Act and sentenced him to undergo rigorous imprisonment for one year and fine of Rs. 50,000/-. 3. 2. Upon appreciation of oral and documentary evidence available on record, trial Magistrate by its order dated 7.8.2003 found the applicant's guilty for offence under Section 51 of the Act, 1957 punishable under Section 63 of the Act and sentenced him to undergo rigorous imprisonment for one year and fine of Rs. 50,000/-. 3. On appeal being preferred by applicant, the appellate Court maintained the conviction recorded, whereas reduced the sentence of one year rigorous imprisonment to six months rigorous imprisonment and also reduced fine amount from Rs. 50,000/- to Rs. 25,000/-. Against this order of conviction and sentence, present revision has been filed. 4. Shri U.K.S. Chandel, learned counsel appearing for the applicant would submit that both the courts below have committed serious legal error in convicting the applicant for the offence under section 51(b)(i) of the Act, 1957 as in order to constitute the offence under Section 51(b)(i) of the Act, 1957 identification of the owner being an essential element for infringement of copyright. He would, alternatively, submit that at the best, alleged act it can be said to be an offence under Section 52A of the Act of 1957, which is punishable under Section 68A of the Act, 1957 and the applicant has already remained in custody for more than 24 days, which is sufficient sentence for contravention of Section 52-A of the Act, 1957, punishable under Section 68-A of the Act, 1957, therefore, the jail sentence be modified accordingly. 5. Opposing the submissions made, by learned counsel appearing for the applicant, Shri Prasun Bhaduri, learned Govt. Advocate for the State would submit that for constitution of the offence under Section 51 of the Act, 1957, identification of the owner is not an essential element for infringement of copyright, as such, the applicant has rightly been convicted for violation of Section 51(b)(1) of the Act, 1957 and, therefore, revision deserves to be dismissed. 6. I have heard learned counsel appearing for the parties and perused the material available on record with utmost circumspection. 7. Section 51 of the Act, 1957 in Chapter XI deals with infringement of copyright. It provides, among other things, that a copyright in a work shall be deemed to be infringed when any person makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire any infringing copies of the work. It provides, among other things, that a copyright in a work shall be deemed to be infringed when any person makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire any infringing copies of the work. Section 51(b)(i) of the Act, 1957 provides as under: "51. When copyright infringed.--Copyright in a work shall be deemed to be in-fringed- (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) xxx xxx xxx (ii) xxx xxx xxx (b) when any person-- (1) 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) xxx xxx xxx (iii) xxx xxx xxx (iv) xxx xxx xxx" 8. Section 63 in Chapter XIII provides for penalty thus: "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 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, imposed 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." 9. A close and careful perusal of aforesaid provisions would show that infringement of copyright in a work is an offence punishable under Section 63 of the Act, 1957. 10. Section 52A deals with particulars to be included in sound recordings and video films. Sub-section (1) thereof provides thus: "52A. A close and careful perusal of aforesaid provisions would show that infringement of copyright in a work is an offence punishable under Section 63 of the Act, 1957. 10. Section 52A deals with particulars to be included in sound recordings and video films. Sub-section (1) thereof provides thus: "52A. Particulars to be included in records and video films.-- (1) No person shall publish a [sound recording] in respect of any work unless the following particulars are displayed on the [sound recording] and on any container thereof, namely;-- (a) the name and address of the person who has made the [sound recording]; (b) the name and address of the owner of the copyright in such work; and (c) the year of its first publication." 11. Section 68A provides for penalty for contravention of Section 52A. It provides that any person who publishes a sound recording or a video film in contravention of the provisions of Section 52-A, shall be punishable with imprisonment which may extend to three years and shall also be liable to fine. 12. The Supreme Court in case of State of A.P. v. Nagoti Venkataramana, (1996) 6 SCC 409 has considered and pointed out the distinction between Sections 51 and 52-A of the Act, 1957 and held that in order to constitute the offence under Section 51 of the Act, 1957, identification of the owner being an essential element for infringement of copyright, which is not required for offence under Section 52A of the Act and held as under:-- "8. A reading of these provisions does indicate that infringement of a copyright or deemed infringement of a copyright or publication of a work without the permission of the owner are offences under the Act. The question is whether identification of the owner of the copyright is a precondition for violation of the provisions of Section 63 or 68-A, as the case may be? The finding of the High Court and ably sought to be supported by Shri Prakash Reddy is that unless the owner is identified and he comes and gives evidence that he has a copyright of the video film which was sought to be in violation of Section 52-A or Section 51 of the Act, there is no offence made out by the prosecution and that, therefore, the conviction and sentence of the respondent is not valid in law. He contends that Section 4 expressly excludes publication of the work to be published. The identification of the owner being an essential element to prove the offence of infringement of copyright the prosecution has failed to establish the same. In construction of the penal statute strict construction should be adopted and in that perspective the benefit of doubt given by the High Court is well justified and does not warrant interference." 13. The question that falls for consideration in this revision is whether alleged act of applicant selling/offering to sale audio cassettes to customers; without name and address of person who had made the sound recording, the name and address of owner of the copyright in work and year of the first publication is an offence falling under Section 52A of the Act punishable under Section 68A or an offence falling under Section 51(b)(i) is punishable under Section 63 of the Act, 1957. 14. In order to appreciate the aforesaid question, it would be proper to notice the charges framed against the applicant. The trial Magistrate by its order dated 13.06.2002, framed following charges against the accused/applicant, which states as under:-- (Vernacular matter omitted..........Ed.) 15. Mr. Jaigopal Singh Parihar, (PW-1) Senior Investigator of Indian Music Industry, who made the written report Ex. P-1 in his evidence stated that 160 audio cassettes was seized from applicant vide Ex. P-2 and further deposed that applicant was found selling the said cassettes, which does not contain the description as required under Section 52A of the Act of 1957. Other witnesses examined on behalf of the prosecution is the police officers, who has investigated the offences. No other witnesses has been examined to identify the owner, who has a copyright of the seized audio cassettes', which is an essential elements to prove the infringement of copyright. 16. The trial Magistrate after appreciating the oral and documentary evidence available on record, came to specific conclusion that the applicant kept in his possession pirated cassettes for sale, which is offence falling under Section 51 of the Act, 1957; further held that seized cassettes did not have the name and address of the owner of the copyright in work and year of the first publication is an offence punishable under Section 63 of the Act, 1957 and convicted him under Section 63 of the Act for one year rigorous imprisonment and fine of Rs. 50,000/-. 50,000/-. The appellate Court accepted the finding of the trial Magistrate. 17. The Supreme Court in case of State of A.P. v. Nagoti Venkataramana (supra) while considering the sale of video cassettes to the public without containing the particulars envisages under Section 52A of the Act, altered the conviction from S. 51(b)(i) of the Act, 1957 to Section S.52A of the Act, 1957 and convicted under Section 68A of the Act. Para 11 of the report states as under:-- "11. It is true that there is no specific charge under Section 52A. The charge was under Section 51 read with Section 63 of the Act. In view of the above finding and in view of the findings of the courts below that the respondent was exhibiting the cinematograph films in his Video City for hire or for sale of the cassettes to the public which do not contain the particulars envisages under Section 52A of the Act, the infringement falls under Section 51(2)(ii) or Section 52A of the Act. The former is punishable under Section 63 and the latter is punishable under Section 68-A of the Act. In view of the findings of the courts below, the offence would fall under Section 68-A of the Act. It would, therefore, be unnecessary for the prosecution to track on and trace out the owner of the copyright to come and adduce evidence of infringement of copyright. The absence thereof does not constitute lack of essential element of infringement of copyright. If the particulars on video films etc. as mandated under Section 52A do not find place, it would be infringement of copyright." 18. The Supreme Court in case of R.G. Anand v. M/s. Delux Films and others, AIR 1978 SC 1613 has clearly held that as a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests. Para 46 of the report states as under:-- "46. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge: 1. There can be no copyright in an idea, subject-matter, themes, plots or historical or legendry facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work. 2. There can be no copyright in an idea, subject-matter, themes, plots or historical or legendry facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work. 2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. 3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. 4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. 5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. 6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above. 7. Where, however, the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. 7. Where, however, the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play, a film has a much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved." 19. Keeping in view the above-noted principle of law laid down by their Lordships of the Supreme Court; falling back to the facts of case, it is apparent that the applicant was selling or offering for sale the audio cassettes without prior permission of the manufacturing company to the customers, which did not contain particulars envisaged under Section 52A of the Act, 1957 i.e. the name and address of the person who has made the sound recording, the name and address of the owner of the copyright in such work and the year of its first publication, the said infringement clearly falls under Section 52A of the Act, 1957 punishable under Section 68-A of the Act, the said infringement would not fall within the sweep of the Section 51 of the Act in absence of specific evidence identifying the owner, who has a copyright of seized audio cassettes. 20. Thus, considering the findings, recorded by both the courts below that the applicant was selling or offering for sale the audio cassettes without containing the particulars as mandated in Section 52-A of the Act, infringement of copyright would certainly punishable under Section 68-A of the Act and it is so altered in view of the statutory provisions contained and principles of law laid down by their Lordships of Supreme Court in case of State of A.P. (supra) and it is held that applicant is guilty of the offence punishable under Section 52-A of the Act, punishable under Section 68-A of the Act and he is convicted accordingly and his conviction and sentence for offence under Section 51(b)(i) of the Act, 1957 is set aside. 21. 21. Now, the determination of the culpability of the applicant brings me to the question of sentence to be awarded for offence under Section 68-A of the Copyright Act. 22. Keeping in view the fact that above-stated offence was committed on 08.08.2001 and the applicant has already remained in jail for a period of 24 days and further considering the fact that he has already faced a prolonged trial and suffered the trauma of uncertainty arising out of his conviction by the trial Court and the appellate Court in appeal. Besides that applicant has no criminal antecedents or involvement in any case and after conviction by the trial Magistrate he has not misused the liberty granted to him time to time by the trial Court, appellate Court and this Court, in my considered opinion, the ends of justice would be served if the substantive sentence, which the applicant has have already undergone is held sufficient. Concludingly, the revision is partly allowed. The conviction of applicant for offence under Section 51(b)(i) of the Act, 1957 and sentence awarded in that behalf is set aside. The applicant is convicted for offence under Section 52-A(a) of the Act, 1957 and sentenced to the period already undergone by him. The bail bonds of the applicant shall remain in operation for a period of six months from today in view of Section 437-A of the Code of Criminal Procedure, 1973. Petition Partly Allowed.