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Gujarat High Court · body

2024 DIGILAW 2227 (GUJ)

Nishant Surendra Thadani v. State Of Gujarat

2024-12-19

A.Y.KOGJE

body2024
JUDGMENT : A.Y. KOGJE, J. 1. This application is filed under Section 482 of the Code of Criminal Procedure for quashing and setting aside of an FIR being II-C.R. No.172 of 2013 registered with ‘B’Division Police Station, Jamnagar City dated 29.07.2013 for offense punishable under Sections 63 of the Copy Right Act, 1957 and Sections 4(A), 7, 16 and 17 of the Cable Television Networks (Regulation) Act, 1995. 2. Learned advocate for the applicants has raised the contention that the FIR itself could not have been filed by the officer of the level of Police Sub Inspector, Local Crime Branch, Jamnagar, who is the informant of the FIR in view of the provisions of the Cable Television Networks (Regulation) Act, 1995, particularly where under Section 18, cognizance is to be taken on the basis of a written complaint by an Authorized Officer. According to the learned advocate for the applicants, neither there is any written complaint given to the concerned Court nor the informant is an authorized officer as contemplated in the definition under Section 2(a). 2.1 Learned advocate has thereafter, submitted that the FIR is registered with malafide intention only on the basis of some written communication from in the name of Media Pro Enterprise India Private Limited, Mumbai (West). Upon which, the informant undertook private inquiry and then registered the FIR. Learned advocate submitted that in any case, the offense as alleged could not be made out against the present applicants, who were representatives of Den Networks Limited which had entered into memorandum of understanding with the Media Pro Enterprise India Private Limited on whose communication the entire proceedings were initiated by the Police Sub Inspector. The Memorandum of Understanding was entered into in the month of March-2013 and was therefore, in existence at the stage when the FIR came to be registered. 2.2 Learned advocate has therefore, submitted that the FIR itself deserves to be quashed as there is no process as is required by the Cable Television Networks (Regulation) Act, 1995, which is followed. The Memorandum of Understanding was entered into in the month of March-2013 and was therefore, in existence at the stage when the FIR came to be registered. 2.2 Learned advocate has therefore, submitted that the FIR itself deserves to be quashed as there is no process as is required by the Cable Television Networks (Regulation) Act, 1995, which is followed. 2.3 Learned advocate has submitted that though in the FIR, Section 63 of the Copy Right Act is mentioned, yet there is no allegation which would support the requirement of Section 63 of the Copy Right Act and mere mention of having found certain CDs and other material at the place of work of the applicants, would not make an offense under the provisions of Section 63. It is submitted that there are no complaints which are filed by any individual with regard to the CDs. 3. As against this, learned Additional Public Prosecutor submitted that the in all there are 13 accused, of which except for the present three applicants, against 10 accused, the charge-sheet is already filed and the trial is proceeding and therefore, against the applicants also, the same process may be adopted and they be relegated to the trial Court. 3.1. With regard to the submission on the authorization to the authorized officer to file a complaint, learned Additional Public Prosecutor has referred to the investigation case papers from which on a communication dated 11.01.2023 by the Media Pro addressed to the Superintendent of Police, a remark is made and apparently on such remark, the FIR has been registered after finding material which would constitute an offense. 4. The Court has heard learned advocates for the parties and perused the documents placed on record. The FIR was registered on 28.07.2013 at the behest of one I.K.Shaikh, Police Sub- Inspector, Local Crime Branch, Jamnagar, who has referred in his FIR a communication dated 17.01.2013 by the Media Pro Enterprise India Private Limited, Mumbai (West) which had made an allegation of running of illegal television viewing channel without any authorization and therefore, notices have been issued to such individuals, who were responsible for running unauthorized channels. 5. The Court is concerned with three applicants who are before the Court. Annexure-C is a memorandum of understanding between Media Pro Enterprise India Private Limited and Den Networks Limited. 5. The Court is concerned with three applicants who are before the Court. Annexure-C is a memorandum of understanding between Media Pro Enterprise India Private Limited and Den Networks Limited. The applicants before the Court are the employees under the Den Networks Limited and were at the relevant time employed and were posted at the place where the raid was made by the Police Sub-Inspector. The perusal of this document at Annexure-C is memorandum of understanding between the original complainant and several other companies including Den Networks Limited would indicate that the Den Networks Limited had authority to broadcast or televise the channel regarding which the complaint was made. Therefore, in the opinion of the court, the root of the complaint being unauthorized televising of channel is not applicable to the applicants. 6. The other ground raised by the applicants is the provisions under Section 18 of the Cable Television Networks (Regulation) Act, 1995, wherein Section 18 provides for taking of cognizance and provides that no Court shall take cognizance of any offense punishable under this Act except upon a complaint in writhing made by an authorized officer. The authorized officer is defined under Section 2(a) to be an officer, who is a District Magistrate, a Sub-Divisional Magistrate or a Commissioner of Police and would include any other officer who is notified in the Official Gazette as an authorized officer either by the State Government or the Central Government to work as an authorized officer within the local limits of jurisdiction. In the present case, the perusal of the case papers placed on record does not indicate that there is any notification in the Official Gazette, whereby the Police Sub-Inspector I.K.Shaikh has been notified to be an authorized officer as provided under Section 2(a) and therefore, there was no question of taking cognizance of the complaint, if any, that would have been made by the PSI. Shaikh. 6.1 The other aspect of the matter is that the Court is prohibited from taking cognizance of an offense under this Act except upon the complaint in writing, there is no complaint in writing which is made by the authorized officer and straightway the informant has registered an FIR for the offenses which are particularly falling under the provisions of Cable Television Networks (Regulation) Act, 1995. 7. 7. The Apex Court in case of Jayant and others vs. State of Madhya Pradesh, reported in, (2021) 2 SCC 670 , while taking into consideration a similar provision under the MMDR Act namely Section 22, pertaining to cognizance of the offense has held in para-10 as under:- “10. While considering the aforesaid issue, Section 22 of the MMDR Act is required to be referred to, which is as under: “22. Cognizance of offences.—No court shall take cognizance of any offence punishable under this Act or any Rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government.” Reading the aforesaid provision would show that cognizance of any offence punishable under the MMDR Act or the Rules made thereunder shall be taken only upon a written complaint made by a person authorised in this behalf by the Central Government or the State Government. Therefore, on a fair reading of Section 22 of the MMDR Act, the bar would be attracted when the Magistrate takes cognizance.” 8. This view was affirmed in the subsequent decision in case of Pradeep S. Wodeyar v/s. State of Karnatka, reported in, (2021) 19 SCC 62 , wherein also the similar provision of taking cognizance under the MMDR Act (Section 22) was considered however, in a different set of facts, where the offense alleged was not only under the provisions of MMDR Act, but also the offenses under the IPC were also alleged. In that fact situation, the Court has held that there is no bar of cognizance by the Court where IPC offenses are also jointly invoked otherwise, in the opinion of this Court, where there is an exclusive invocation of the offenses under the Special Act that is to say the Cable Television Networks (Regulation) Act, 1995 where the provision is made under Section 18, there is no other method by which the cognizance of the offense could have been taken, particularly, in the facts of this case, by registration of an FIR by a person, who is not falling within the definition of an authorized officer. 9. Insofar as Section 63 of the Copy Right Act is concerned, the Court has perused the entire FIR. 9. Insofar as Section 63 of the Copy Right Act is concerned, the Court has perused the entire FIR. However, there does not appear to be any allegation to constitute an offense under Section 63 as Section 63 would require an infringement or abetment to the infringement of a copy right in a work or any other right conferred under the Copy Right Act. Nowhere in the FIR it is mentioned as to which copy right and who is the owner of such copy right, who has alleged the infringement of copy right so as to invoke the requirement of Section 63 of the Copy Right Act. 10. At this stage, learned APP has submitted that the present order may not come in way of any proceedings that may be in future initiated by the State Government after due compliance of the provisions and requirement of the Cable Television Networks (Regulation) Act, 1995. It goes without saying that if permissible and available to the State, it is still open for them. 11. In view of the aforesaid reasonings, the petition is hereby allowed. The FIR being II-C.R. No.172 of 2013 registered with ‘B’ Division Police Station, Jamnagar City and the subsequent proceedings, if any, in connection with the present applicants are quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.