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2018 DIGILAW 2330 (ALL)

Vinod Kumar Gupta v. State of U. P.

2018-11-15

PANKAJ NAQVI

body2018
JUDGMENT : Pankaj Naqvi, J. 1. Heard Sri Ravi Chandra Srivastava, learned counsel for the applicant and the learned A.G.A. 2. This application under Section 482 Cr.P.C challenges the charge-sheet dated 4.4.2018 as well as cognizance dated 18.6.2018 in Case Crime No.24/2018, under Sections 63/65 of the Copy Right (Amendment) Act, 1957, P.S. Gopiganj, Bhadohi, pending in the court of C.J.M, Bhadohi. 3. The O.P. No.2 claiming himself to be a Senior Investigator in I.T & Detective Services Private Limited, B-I Building, Kiledar Apts, 165/172, S.P. Road, West Mumbai-400102, alleges that the officials of Imami Company, manufacturers of "Boroplus Skin Cream" along with police officials of Chauki Gopiganj on 1.2.2018 at around 17.35 hrs, raided the general store shop of the applicant, situate at Gosai Bazar, Nathaipur and found in his possession duplicate "Boroplus Skin Cream" (33 pieces) of 19 ml each, out of which, 1 sample was sealed and sent for chemical analysis. 4. After investigation, a charge-sheet was submitted against the applicant, under Sections 63/65 of the Copy Right Act. Cognizance taken on 18.6.2018 and applicant summoned. 5. Learned counsel for the applicant sought quashment of the entire proceedings on the ground that assuming all the allegations to be true, no offence whatsoever under Sections 63/65 of the Act is made out, proceedings being a sheer abuse of the process of the Court, are liable to be quashed. 6. The learned A.G.A submits as the issue involved in this application is purely legal, he does not propose to file any counter affidavit, the application be disposed of finally. 7. The word "copyright" has not been defined in the Copyright Act. Section 13 contained in Chapter-III of the Copyright Act, provides the "works" in which the copyright subsists. It provides that copyright subsists in the following classes of works:- (a)-original literary, dramatic, musical and artistic works, (b)-cinematograph films; and (c)-sound recording. 8. Section 63 relates to an offence of infringement of "copyright" and provides that any person who knowingly infringes or abetes the infringement of the copyright in any work, shall be punishable with an imprisonment for a term which shall not be less than 6 months but it may extend to 3 years and with fine which shall be not less than Rs. 50,000 but it may extend to Rs. 2 lakhs. 9. 50,000 but it may extend to Rs. 2 lakhs. 9. The precise case against the applicant is of recovery of 33 packets of spurious "Boroplus Cream". 10. To attract an infringement or abetting the infringement of the copyright it should relate to a class of work such as original literary work, dramatic, musical and artistic work; cinematograph film and sound recording. The charge-sheet only alleges recovery of 33 packets of spurious "Boroplus Cream". It nowhere alleges infringement of copyright of the aforesaid classes of work specified in Section 13. 11. Section 65 of the Act provides that any person who knowingly makes or has in his possession any plate for the purpose of making infringing copies of any work in which copyright subsists, shall be punishable with imprisonment which may extend to 2 years and shall also be liable to fine. 12. Similarly no case of violation of Section 65 of the copyright Act, is made out as there was no recovery of any plate for making infringing copies of any work in which copyright subsisted. 13. Thus, on the allegations made, no offence under Section 63 & 65 of the Copyright Act, 1957 is made out. 14. The law is well settled that when prosecution is sought to be quashed at an initial stage, the Court has to only examine the allegations made in the FIR / complaint / charge-sheet as to whether on the basis of materials on record, a case of prima facie commission of offence is made out or not. If prima facie case is disclosed, the Court may refuse to quash the same. Where going by the allegations, no offence whatsoever is made out or prosecution is based on malafides or is an abuse of the process of the Court, this Court may quash the criminal prosecution. Reference may be made to the judgments of the Apex Court in Amit Kapoor vs. Ramesh Chander (2012) 9 SCC 460 & State of Haryana v. Bhajan Lal, 1992 S.C.C. (Cr.) 426. 15. In view of above, the application is allowed. 16. The proceedings of charge-sheet dated 4.4.2018 as well as cognizance dated 18.6.2018 in Case Crime No.24/2018, under Sections 63/65 of the Copy Right (Amendment) Act, 1957, P.S. Gopiganj, Bhadohi, pending in the court of C.J.M, Bhadohi stands quashed. 17. 15. In view of above, the application is allowed. 16. The proceedings of charge-sheet dated 4.4.2018 as well as cognizance dated 18.6.2018 in Case Crime No.24/2018, under Sections 63/65 of the Copy Right (Amendment) Act, 1957, P.S. Gopiganj, Bhadohi, pending in the court of C.J.M, Bhadohi stands quashed. 17. However, this order shall not prevent the state authorities to proceed against the applicant in accordance with law.