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2022 DIGILAW 293 (UTT)

Irfan v. State of Uttarakhand

2022-09-07

RAVINDRA MAITHANI

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JUDGMENT : Ravindra Maithani, J. The challenge in instant revision is made to the following:- (i) Judgment and order dated 24.01.2011, passed in Criminal Case No. 536 of 2010, State Vs. Irfan and another, by the court of 4th Additional Civil Judge (Junior Division), Haridwar (“the case”). By it the revisionist has been convicted under Section 63 of the Copyright Act, 1957 (“the Act”) and sentenced to undergo simple imprisonment for a period of one year with a fine of Rs.50,000/-. In default of payment of fine to undergo imprisonment for a further period of six months. The revisionist has been acquitted of the charge under Section 68 A of the Act and; (ii) Judgment and order dated 01.09.2011, passed in Criminal Appeal No. 35 of 2011, Irfan and another Vs. State, by the court of Additional Sessions Judge/2nd FTC, Haridwar. By which the impugned judgment and order passed in the case has been confirmed. 2. Facts necessary to appreciate the instant controversy, briefly stated, are as hereunder:- On 04.05.2007, Senior Sub-Inspector, Ashok Kumar Arora, PW1, was on patrolling alongwith co-police personnel, when they spotted that two persons were selling Compact Disc (“CD”). They had no licence. They were intercepted. They were the revisionists. According to the case, from the possession of the revisionist Irfan, 25 CDs and from the CDs of the revisionist Asif 20 CDs and 75 CDs, which were laid over the ground were recovered. After investigation, charge sheet under Section 63, 68A of the Act was submitted against the revisionists. 3. On 28.03.2008, charge under Sections 63 and 68A of the Act were framed. To which, the revisionists denied. 4. The prosecution in order to prove its case examined four witnesses, namely, PW1 Sub-Inspector, Ashok Kumar Arora, PW2 Neeraj Bhakuni, PW3 Naresh Singh and PW4 Sub Inspector, Kundan Singh. 5. The revisionists were examined under Section 313 of the Code of Criminal Procedure, 1973. According to them, they have been falsely implicated. 6. After hearing the parties, by the impugned judgment and order passed in the case, the revisionists have been convicted and sentenced as stated hereinbefore, which has been confirmed in the appeal. Hence, the revision. 7. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the revisionist would argue that CDs were never run either by the witnesses or in the court. Hence, the revision. 7. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the revisionist would argue that CDs were never run either by the witnesses or in the court. It is not even established as to what is in the CDs. It is also argued that the copy of the recovery memo was not even given to the revisionists. There is no independent witness. 9. On the other hand, learned State counsel would submit that pirated CDs were recovered from the revisionists. They had no license to sell it. Hence, offence is made out. 10. The revisionists have been charged under Section 68-A of the Act, which provides for punishment for infringement of the provisions of Section 52-A of the Act. Section 52-A of the Act reads as hereunder:- “52-A. Particulars to be included in sound recording 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. (2) No person shall publish a video film in respect of any work unless the following particulars are displayed in the video film, when exhibited, and on the video cassette or other container thereof, namely:- (a) if such work is a cinematograph film required to be certified for exhibition under the provisions of the Cinematograph Act, 1952 (37 of 1952, a copy of the certificate granted by the Board of Film Certification under Section 5-A of that Act in respect of such work; (b) the name and address of the person who has made the video film and a declaration by him that he has obtained the necessary licence or consent from the owner of the copyright in such work for making such video film; and (c) the name and address of the owner of the copyright in such work.” 11. As stated, the revisionists have been acquitted of the charge under Section 68A of the Act. It means that the CDs, which were allegedly recovered from the possessions of the revisionists, had all the details as required to be displayed under Section 52 A of the Act. 12. As stated, the revisionists have been acquitted of the charge under Section 68A of the Act. It means that the CDs, which were allegedly recovered from the possessions of the revisionists, had all the details as required to be displayed under Section 52 A of the Act. 12. What is the offence committed by the revisionists? Section 63 of the Act provides for punishment for infringement of copyright or other rights conferred by the Act. It reads as hereunder:- “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 or 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.” 13. It is a specific case of the prosecution that the revisionists infringed the copyrights. What is infringing copyright, is defined under Section 2 (m) of the Act. It reads as hereunder:- 2. Interpretation.- In this Act, unless the context otherwise requires,- (a). ............................................................... .................................................................... It is a specific case of the prosecution that the revisionists infringed the copyrights. What is infringing copyright, is defined under Section 2 (m) of the Act. It reads as hereunder:- 2. Interpretation.- In this Act, unless the context otherwise requires,- (a). ............................................................... .................................................................... (m) “infringing copy” means.- (i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film; (ii) in relation to a cinematographic film made on any medium by any means; (iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means; (iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer’s right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance, If such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act;” 14. Copyright has an age. It is not that the copyright may remain in perpetuity. First and foremost, the prosecution has to show and establish as some work was infringed and infringed copies were sold. 15. PW1 Sub Inspector, Ashok Kumar Arora, PW2 Sub-Inspector, Neeraj Bhakuni and PW3 Constable Police Naresh Singh are the persons, who allegedly recovered the CDs. They have stated about the recovery. But, all of them in their cross examination have admitted that they did not run the CD. PW4 Sub-Inspector, Kundan Singh is an Investigating Officer. In his cross examination also, he would submit that he did not run the CD. 16. The prosecution is not clear as to what contained in the CDs, which were allegedly recovered from the revisionists. The prosecution is not clear as to who was the owner of the copyright. Whose copyrights were infringed? When were the copyright created for the first time? 17. Having considered, this Court is of the view that the finding recorded against the revisionists convicting them under Section 63 of the Act is not based on any evidence. Accordingly, the revision deserves to be allowed. Accordingly, the impugned judgment and orders deserves to be set aside. 18. The revision is allowed. 19. Impugned judgment and orders dated 24.01.2011, and 01.09.2011 are set aside. 20. The revisionists are acquitted of the charge under Section 63 of the Act. The revisionists are on bail. Accordingly, the revision deserves to be allowed. Accordingly, the impugned judgment and orders deserves to be set aside. 18. The revision is allowed. 19. Impugned judgment and orders dated 24.01.2011, and 01.09.2011 are set aside. 20. The revisionists are acquitted of the charge under Section 63 of the Act. The revisionists are on bail. Their bail bonds cancelled and sureties discharged. 21. The revisionists shall furnish personal bond and two sureties by each one of them, each of the like amount to the satisfaction of the court concerned under Section 437 A of the Code within six weeks from today. 22. Let a copy of this judgment along with Lower Court Record be forwarded to the court below for compliance.