Delhi District Court
State vs . Jaswinder Singh on 17 September, 2009
IN THE COURT OF SH. DIG VINAY SINGH
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE03 (IPR),
ROHINI, DELHI
In Re :
STATE VS. JASWINDER SINGH
FIR NO. 252/98
P.S TILAK NAGAR (CRIME BRANCH)/ IPR
U/s 63/65/68 A of COPYRIGHT ACT
Date of reservation of judgment : 17/9/2009
Date of Pronouncement of judgment : 17/9/2009
JUDGMENT
1. The serial no. of the case : 136/3
2. The date of commission of offence : 22.04.1998
3. The name of the complainant : Satish Kapoor, Chairman, Prime Protection
(P) Ltd r/o F39, East of Kailash, New Delhi
4. The name, parentage : Jaswinder Singh S/o Sh. Jeet Singh R/o WZ&
address of accused 33/135, Mukherji Park Extn., Tilak Nagar,
New Delhi
5. The offence complained of/proved : U/s 63/65/68 A of the Copyright Act
6. The Plea of the accused : Pleaded not guilty
7. Final Order : Convicted U/s 63 & 65 of Copyright Act and
Acquitted U/s 68 A of the Copyright Act.
8. Date of such order : 17.09.2009
Brief statement of the reasons for such decision :
1. Sole accused was sent up for trial in this case, with the case of the prosecution, that on 22/4/98 Satish Kapoor as Chairman of Prime Protection Pvt. Ltd gave a complaint to the ACP, Crime Branch , in which he alleged that he was authorised by M/s Shanti Enterprises to initiate legal action against infringement of the copyright of the music companies such as Bombino, Venus, Ultra, PAN, Indus and others. He claimed that he was so authorised by M/s Shanti Enterprises and that it came to his knowledge that the accused Jaswinder Singh was indulging in Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 1 of 16 infringement at his premises no. WZ 33/141, Mukherjee Park, Tilak Nagar, Delhi.
2. On this complaint, a raiding party was organised comprising of the complainant, IO SI Satish Kumar and other police officials and the said premises was raided. It is the case of the prosecution that accused was physically present in the premises and he was busy recording infringed video cassettes with the help of various VCRs. On checking it was found that there were 18 VCRs and accused was recording 16 infringed cassettes of movie 'Kabhi Na Kabhi'. Besides those 16 cassettes of movie Kabhi Na Kabhi, 17 other such cassettes of the same movie and; one master video cassette of that movie were recovered. Besides the said movie, 14 video cassettes of movie Dandnayak; 4 video cassettes of movie Chachi 420; 16 video cassettes of movie Dil to Pagal Hai; besides 18 VCRs and other attachment with VCRs were also recovered.
3. It is further the case of the prosecution that after the accused was arrested, he made a disclosure statement and pursuant to his disclosure statement he also got recovered 15 infringed video cassettes of movie Keemat and 5 infringed video cassettes of movie Dandnayak from shop no. 263, Palika Bazar, Delhi.
4. On completion of investigation, chargesheet was filed and the accused was charged for offences U/s 63/65 & 68 of the Copyright Act. The accused pleaded not guilty to the said charges.
5. In support of its case, prosecution examined total nine witnesses namely PW1 Lady SI Poornima, PW2 Vinod Kumar, PW3 J. N. Kakar, PW4 Ram Kanwar, PW5 HC Kallu Singh, PW6 HC Kashmira Singh, PW7 Iinspector Roop Lal, PW8 Satish Kapoor and PW9 Jitender Gulati.
6. After recording of the prosecution evidence, all the incriminating evidence was put to the accused U/s 313 Cr.P.C to which the accused generally denied and stated that he has been implicated falsely. Initially the accused did not opt to lead defence evidence in his favour but , subsequently however the accused examined himself as DW1.
7. I have Ld. APP for the State and Ld. Counsel for the accused.
8. Out of 9 witnesses examined by the prosecution, PW1 Lady SI Urmila was the duty officer who registered the FIR and proved the same as Ex.PW1/A.
9. Similarly, PW2 Vinod Kumar proved the election I card of the accused as Ex.PW2/A. Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 2 of 16
10. PW3 J. N. Kakkar was partly examined in chief regarding ownership of shop no. 263, Palika Bazar but his examination was not complete, therefore his testimony cannot be read in evidence against the accused.
11. PW4 Ram Tanwar from NDMC deposed that the said shop was allotted on licence to one Smt. Daljeet Kaur on 5/3/1994 but subsequently licence was cancelled on 14/8/2007. Licence agreement was proved as Ex.PW4/A .
12. PW9 Jitender Gulati is the owner of M/s Shanti Enterprises and he proved Authority Letter executed by M/s Bombino Music Entertainment Pvt. Ltd dated 24/11/1997 Ex.PW9/A in his favour, on the basis of which, he authorised complainant Satish Kapoor to file the present complaint. This witness however categorically stated that he cannot produce copyright documents of any of the movies involved in this case. This witness also proved the attorney executed by this witness in favour of Satish Kapoor as Ex.PW8/B.
13. Besides the above formal witnesses, prosecution examined PW5 HC Kallu Sigh, PW6 HC Kashmira Singh, PW7 Inspector Roop Lal and PW8 Satish Kapoor the complainant. All these witnesses are of recovery and all of them deposed that on the day in question they raided the premises of accused at Tilak Nagar where the accused was found recording video cassettes. They supported the case of prosecution regarding recovery of infringed video cassettes, VCRs from the premises of accused which were taken into police possession vide memo Ex.PW6/B and subsequently on the disclosure of accused from Palika Bazar shop also alleged recovery was effected which was also seized vide memo Ex.PW6/A.
14. The witnesses also identified the accused as the same person who was found recording infringed cassettes at Tilak Nagar and they identified the case property also as Ex.P1 to P3.
15. Ld. Defence counsel for the accused contended that the copyright of none of the movie involved in this case is produced or proved by the prosecution and, in absence of proving of registration of copyright, the whole case gets demolished.
16. There is no force in this contention. Registration of copyright is not necessary to bring a charge of infringement U/s 63 of the Copyright.
Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 3 of 1617. In AIR 1984 DELHI 265 "Glaxo Operations UK Ltd. v. Samrat Pharmaceuticals" it was held that Registration of copyright is not mandatory but discretionary. Copyright exists whether registration is done or not. Person who gets earlier registration can be presumed to be author or original creator. (Para 22)
18. Similarly in 1996 CRI. L. J. 290 "Zahir Ahmed v. Azam Khan" in para 26 it is held that ;
" I find nothing to differ from the views so taken in the aforesaid decisions by the different High Courts. The Indian Copyright Act, 1914 did not make any provision for Registration of Copyrights. The provision for Registration of Copyright has been made in Ss. 44 and 45 of the Copyright Act, 1957. The object behind the enactment of S. 44 of the said Act was not to make registration compulsory or mandatory for the purpose of enforcement of copyright. An option was only provided thereunder. It is, therefore, not obligatory for an author to get the copyright registered under S. 44 of the said Act for the purpose of acquiring rights conferred by it. As already indicated above, registration only raises a presumption that the person whose name is entered in the Register of Copyrights under S. 45 of the Act is the actual author. Section 48 of the aforesaid Act provides, as already indicated above, that the registration of copyright shall be prima facie evidence of the particulars entered therein and shall be admissible in evidence in all Courts without further proof for production of the originals. If the legislature intended to make the requirement of registration mandatory, the language of S. 44 would invariably have been different. The same could have been on the lines of S. 69 of the Partnership Act. But there is no provision in the Act depriving an author of the rights conferred by the aforesaid Act on account of nonregistration of the copyright."
19. Thus, the registration of Copyright is not necessary to prove a charge of infringement, but would that mean that the prosecution is not acquired to prove even existence of copyright in favour of somebody? Even otherwise, for offence U/s 68 A of The copyright Act, registration of copyright is not necessary. Nor is the registration required for bringing home charge U/s 65 of the copyright Act.
20. Hon'ble Supreme Court titled as State of Andhra Pradesh Vs. Nagoti Venkatramanna IV(1996) CCR 42 (SC) which was decided on 20/8/1996 by Bench of Hon'ble Justice K. Ramaswamy and G. B. Patnaik , in which the Hon'ble Supreme Court held that for offence of Copyright it is not necessary for the prosecution to prove identification of author of copyright as a precondition for violation of provisions of Sec. 63 & 68 A of Copyright Act. In the said case, the conviction and sentence order as awarded by Trial Court was upheld. In view of the said judgment Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 4 of 16 of Hon'ble Supreme Court nonexamination of the original copyright holder is not fatal to the case of the prosecution. In that case it was observed as follows:
" It is true that in the interpretation of penal provisions, strict construction is required to be adopted and if any real doubt arises, necessarily the reasonable benefit of doubt would be extended to the accused. In this case, the question arises : whether such a doubt has arisen? The object of amending the Copyright Act by Act amendment 65 of 1984, as noted above, was to prevent piracy which became a global problem due to rapid advances in technology. The legislature intended to prevent piracy and punish the pirates protecting copyrights. The law, therefore, came to be amended introducing Section 52A. Thereafter, the piracy of cinematograph films and of sound recording etc. could be satisfactorily prevented. Moreover the object of the pirate is to make quick money and avoid payment of legitimate taxes and royalties. The uncertified films are being exhibited in a large scale. Mushrooming growth of video parlours has sprung up all over the country exhibiting such films recorded on video tapes by charging admission fee from the visitors. Therefore, apart from increasing the penalty of punishment under law it also provides the declaration on the offence of infringement and video films to display certain information on the recorded video films and containers thereof. Section 52A thus has incorporated specifications of the prints in subsection [2] thereof. The construction of Sections 52A, 51, 63 and 68A should be approached from his perspective. It would be further profitable to read the relevant provisions of the Cinematograph Act, 1952 in this behalf. Section 2 [c) defines "cinematograph" to include any apparatus for the representation of moving pictures or series of pictures. Section 2 [d] (d) defines "films" to mean a cinematograph film. The question, therefore is : whether video film is cinematograph ? It is settled view that video tapes come within the expression "cinematograph"
in view of the extended definition in Section 2[c] which includes apparatus for the representation of moving pictures or series of pictures as copy of the video should be created in respect of a cinematograph under the Cinematograph Act which gives protection to the purchasers of the cinematograph if they are registered under Chapter X of the Act. Section 44 gives the right of registration and once the entries have been made by operation of Section 48 the entries in the register of copyrights shall be prima facie evidence of the copyright and the entries therein are conclusive without proof of the copyright and the entries therein are conclusive without proof of the original copyright which must be taken to have been created in respect of the video tape.
In Balwinder Singh v. Delhi Administration [AIR 1984 Delhi 379] a Division bench of Delhi High Court had also held that both video and television are cinematograph. Licenses for giving their public exhibition is necessary under the Cinematograph Act in spite of their having commercial licenses for them under the Telegraphs Act. 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 Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 5 of 16 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 envisaged 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 68A of the Act. In view of the above findings of the courts below the offence under which the case falls. 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 doesn't constitute lack of essential element of infringement of copyright......................"
21. Ld. Counsel for the accused next contended that there are a large number of contradictions in the testimony of recovery witnesses regarding, the time when the raiding party left for raid, when the raiding party reached the premises, mode of transport, whether the door of the house was opened or locked, how many VCRs were in working condition, from where the key of the shop was obtained, who checked the case property, where the public persons were requested to become witness or whether they were so requested or not etc etc.
22. I have perused these contradictions and in my considered view, none of these contradictions are material enough to doubt the case of the prosecution. We cannot forget that the present recovery pertains to April 1998 whereas the recovery witnesses were examined in this case from February 2008 onwards i.e. after a gap of almost ten years and after such a long gap between the date of recovery and date of deposition, it is but natural that minor discrepancies would occur in the testimony of witnesses.
23. In the case of Sukhdev Yadav & ors. Vs State of Bihar (2001) 8 SCC 86 it was held by Hon Supreme Court that that once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same . If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. Relying upon an earlier decision in Leela Ram vs. State of Haryana (1999) 9 SCC 525 it was observed that there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable.
Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 6 of 16Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Relying upon an earlier decision in Ramani vs. State of M.P. (1999) 8 SCC 649 it was also observed that when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was also held that it is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeachment the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.
In Krishna Mochi and Others Vs. State of Bihar, (2002) 6 SCC 81, it was held that it is the quality of evidence that matters and not the number of witnesses. It was further held that credible evidence of even a solitary witness can form the basis of conviction. That contradictions, inconsistencies, exaggerations or embellishments are inevitable. It was further held that a discrepancy existing in a prosecution case should not weigh with the Court so long it does not materially affect the case. It was further held that the duty of the Court is not only to see that no innocent man should be punished but also to ensure that no person committing an offence should get scotfree. It was also held that even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of number of other coaccused persons, his conviction could be maintained.
24. It is next contended by the counsel for the accused that besides the complainant Satish Kapoor, no independent witness was joined in this case to support the case of the prosecution and therefore prosecution case ought not to be believed. He even argued that Satish Kapoor cannot be called an independent witness since it has come in the prosecution evidence of PW9 that Satish Kapoor was charging money for conduction of raid and therefore he is an interested witness.
25. In this case, it is not denied by the accused that he was occupying premises no. 33/141, Tilak Nagar Delhi on the date of recovery, and the defence of the accused is that although he was Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 7 of 16 occupying that premises on the date of recovery, but he was not physically present at that time and that he was merely running the VCR repair shop. The accused claims that the 18 VCRs which were recovered from this premises were received by him for repair from the public persons and he claims that his two employees were present in the premises at the time of raid who were threatened by the police team and who ran away. There is specific suggestions to the prosecution witness regarding this aspect of the matter, but the accused did not bring those two employees in his favour as defence witness to lend credence to his defence. Even the name and addresses of those two employees was never disclosed during trial so that the witnesses could be summoned.
The accused in his defence examined himself to claim that he had a business of VCR repairing since 1986 at the Tilak Nagar premises. He produced certain bills and certain copyright documents by which copyright of some movies were assigned to the accused. In the cross examination of the accused, the accused admitted that he cannot tell name of any of those 18 persons who gave the VCRs to him for repair nor those VCRs were returned to those persons and that he obtained those VCRs on superdari which still continue to be with the accused till the date of his examination. Now, does this fact itself not reveal that the defence of the accused that the 18 VCRs were received for repair is false. Had he received these VCRs for repair, he could have easily informed the names and particulars of those persons who gave VCRs for repair, or he could have examined them in his defence. Or those persons could have claimed the case property as belonging to them or they would have asked the complainant to return the same. The second fact which belies in the defence of the accused is, his own defence evidence, i.e., although he maintained a defence that he had a VCR repair shop but in his defence he himself deposed that there were some assignment of copyright of some work in their favour which shows that the accused was also having business of reproduction/sale/heir of music work/cinematograph films. The fact that the accused admits by giving suggestions to the prosecution witnesses that at the time of raid, his two employees were present who ran away shows that it is not denied that such a raid was conducted at Tilak Nagar premises on the day in question. This shows that a raid was indeed conducted at his premises no. 33/141. The accused in his evidence also admitted that he was running a business from a shop no. 263, Palika Bazar till the date of his examination since 1985 which they have taken on rent from Daljeet Kaur Anand.
26. Now, the question which remains is that whether the infringed articles were recovered from the premises of accused or not or whether he was found infringing the copyright of movie Kabhi Na Kabhi at the time of raid? I don't find any reason as to why the prosecution witnesses would depose falsely on this ground. There is no enmity suggested by the accused to the four Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 8 of 16 recovery witnesses and all that the accused states is that the PW9 Jitender Gulati had some business rivalry and therefore he was implicated. No such reason of enmity or false implication is put to the PW9. PW9 is not the recovery witness in this matter. Recovery is deposed by Satish Kapoor and three other police officials and none of them have any motive to falsely implicate the accused. The accused wants this court to believe that Satish Kapoor and all the members of the raiding party implicated the accused on the asking of PW9 Jitender Gulati. The accused wants this court to believe that the police is in the habit of implicating innocent persons merely on the asking of somebody. It would be too extreme a view to hold it in favour of accused. In my considered view, this inference is not only uncalled for in the present case, as it does not find any support from the material, but it also cannot be said that the police is very easy to manipulate against innocent persons. No such evidence has come on record that PW9 is such an influential person that he could have managed this entire manipulation work by the police.
27. Law is not that the police officials are entirely untrustworthy but the law is that the testimony of police officials can be relied upon and conviction can be based on it if found trustworthy. I don't see any reason to distrust the testimony of recovery witnesses. Their testimony has remained largely uncontroverted except for few minor discrepancies which I have already held as immaterial. If the case of prosecution is otherwise trustworthy, it cannot be thrown out merely on the ground that independent witnesses of the same locality where the search was conducted has not been joined. It could well be a case where independent witnesses did not join despite request by the police or may be no such request was made by the police, but mere non joining of public witnesses alone not a ground to acquit the accused if the other evidence is trustworthy.
28. It is not the quantity of evidence which matters in a criminal case but it is the quality of evidence which matters. What is to be seen is whether the witness examined by prosecution were trustworthy and the number of witnesses are not to be counted. Section 134 of the Indian Evidence Act clearly provides that no particular number of witnesses in any case be required for the proof of any fact. Thus a conviction can be based on solitary witness which is trust worthy and what matters is quality of evidence and not quantity.
Hon'ble Supreme court in the case Ambika Prasad & anr vs. State 2002 (2) CRIMES 63 (SC) held that it is known fact that independent persons are reluctant to be a witness or to assist the investigation.
In AIR 2005 SUPREME COURT 2503 Seeman alias Veeranam, Vs. State by Inspector of Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 9 of 16 Police, It was observed in Para 4 "It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinizing the evidence of the interested sole witness. The prosecution's nonproduction of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."
Similarly in the case of State of U.P. vs. Anil Singh AIR 1988 Sc 1998 it was held that in some cases the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out to the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.
In the case of State of U.P. vs. Anil Singh AIR 1988 Sc 1998 ; Dr Krishna Pal and another vs. State of U. P.1996 (7) SCC 194 and in the case of Appabhai Vs. State Of Gujrat AIR 1988 SC 696 it was held that These days people in the vicinity where the incident took place avoid to come forward to give evidence and civilized people are insensitive when crime is committed even in their presence and they withdraw both from the victim and vigilante.
29. Law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon. Rather, the law is that even the testimony of a police officer can be acted upon and a conviction can be based on such testimony if the testimony is unimpeached and found to be trustworthy.
Hon'ble Supreme Court in Anil @ Andya Sadashiv Nandorkar Vs. State J. T. 1996 (3) SC 120 has held that testimony of the police officials cannot be discredited merely because they are police officials if otherwise, their testimony is found to be cogent, trustworthy and reliable.
Hon'ble Supreme Court in Akmal Ahmad Vs. State of Delhi J. T 1999 (2) SC 388 held that ''it Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 10 of 16 is now well settled that evidence of search and seizure made by police will not become vitiated only for the reasons that the evidence is not supported by independent witnesses.''
30. Similarly, the defect in investigation of not producing the case property U/s 64 of Copyright Act, alone, is insufficient to acquit the accused. Defective investigation by itself cannot be made a ground for acquitting the accused. Reliance may be placed upon the cases of Prithvi vs. Mam Raj AIR 2004 SC 2729; state of U.P. vs. Hari Mohan AIR 2001 SC 142; in the case of state of W.B. vs. Mir Mohd. Omar AIR 2000 SC 2988 it was observed in para no 41 as " 41. Learned Judges of the Division Bench did not make any reference to any particular omission or lacuna in the investigation. Castigation of investigation unfortunately seems to be a regular practice when the trial Courts acquit accused in criminal cases. In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal Courts should not be wasted in picking out the lapses in investigation and by expressing unsavory criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by Courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, the illequipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case. ................".
Similarly in the case of AIR 2003 SUPREME COURT 2612 "Union of India v. Prakash P. Hinduja" = 2003 AIR SCW 3258: AIR 2001 SUPREME COURT 142 "State of U.P. v. Hari Mohan" = 2000 AIR SCW 4012: AIR 2003 SUPREME COURT 660 "State of U.P. v. Jagdeo" AIR 2003 SUPREME COURT 1164 "Amar Singh v. Balwinder Singh"= 2003 AIR SCW 717 it was held that Error or illegality in investigation would have no impact on trial unless miscarriage of justice is brought out. Defective investigation Cannot be made a basis for acquitting accused More so when a case is made out against all or any one of the accused persons. Accused cannot be acquitted only on ground that investigation was faulty. For fault of prosecution, perpetrators of such a ghastly crime cannot be allowed to go seat free. Where Prosecution case is fully established by direct testimony of eyewitnesses and Corroborated by other evidence then any failure or omission of investigating officer, cannot render prosecution case doubtful or unworthy of belief.
It may not be out of place to reiterate what was said in H. N. Rishbud and Inder Singh v. State of Delhi, (1955) 1 SCR 1150=(AIR 1955 SC 196), that a defect or an illegality in the investigation, however serious, has no direct bearing on the competency or the procedure relating to cognizance Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 11 of 16 or trial of an offence and that whenever such a situation arises, Section 537 of the Code of Criminal Procedure is attracted and unless the irregularity or the illegality in the investigation or trial can be shown to have brought about a miscarriage of justice, the result is not affected."
31. In AIR 1970 SUPREME COURT 1396 "Bai Radha v. State of Gujarat" The sole point which arose before Supreme court for decision was whether the trial became illegal by reason of the search not having been conducted strictly in accordance with the provisions of Section 15 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 which provision was akin to the present sec 15 of the Act . The facts need not be stated in detail. The appellant and two other persons were tried for various offences under the provisions of the Act, the charge substantially against her being that she was keeping a brothel in her house and knowingly lived on the earnings of the prostitution of women and girls. What was stressed greatly by learned counsel for the appellant was that the Act being a special Act its provisions should have been strictly followed. It was pointed out that the panch witness was not an inhabitant of the locality in which the place to be searched was situate. Hon'ble S.C. held that, we are of the opinion that noncompliance with the directions contained in Section 15 (2) in the matter of search would only be an irregularity and not such an illegality which will vitiate the trial. In that sense it would be legitimate to say that a search which is to be conducted under the Act much comply with the provisions contained in Section 15; but it cannot be held that if a search is not carried out strictly in accordance with the provisions of that section the trial is rendered illegal. There is hardly any parallel between an officer conducting a search who has no authority under the law and a search having been made which does not strictly conform to the provisions of Section 15 of the Act. The principles which have been settled with regard to the effect of an irregular search made in exercise of the powers under Section 165 of the Code of Criminal Procedure would be fully applicable even to a case under the Act where the search has not been made in strict compliance with its provisions. It is significant that there is no provision in the Act according to which any search carried out in contravention of Section 15 would render the trial illegal. In the absence of such a provision we must apply the law which has been laid down with regard to searches made under the provisions of the Criminal Procedure code. In para 8 it was held that "In conclusion it may be observed that the investigating agencies cannot and ought not to show complete disregard of such provisions as are contained in subsections (1) and (2) of Section 15 of the Act. The legislature in its wisdom provided special safeguards owing to the nature of the premises which have to be searched involving inroads on the privacy of citizens and handling of delicate situations in respect of females. But the entire proceedings and the trial do not become illegal and vitiated Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 12 of 16 owing to the nonobservance of or noncompliance with the directions contained in the aforesaid provisions. The Court, however, has to be very careful and circumspect in weighing the evidence where there has been such a failure on the part of the investigating agency but unless and until some prejudice is shown to have been caused to the accused person or persons the conviction and the sentence cannot be set aside.
32. The contention that the complainant was not duly authorised or that he had no locus standi to file the case has no force. As per the copyright Act, 1957 the offences under the copyright act are cognizable and therefore anybody can set law into motion in a cognizable offence and even the police could have investigated the matter suo moto.
33. Therefore, in my considered view the prosecution has succeeded in proving its case that on the date of recovery, the accused was found recording video cassettes 'Kabhi Na Kabhi' and 17 such video cassettes were recovered from his possession which were being recorded besides one master cassette. Not only this, besides these 18 video cassettes, 50 video cassettes of other movie including 16 of the same movie were recovered from his possession. The accused was found in possession of these cassettes without any copyright. Possessing more than one cassette of same movie indeed gives to an irresistible inference that it was for the purposes of sale/hire and nothing else. Copying 17 video cassettes of same movie Kabhi Na Kabhi without any copyright indeed brings the case of the accused within the definition of infringement. There could be no other explanation offered for copying simultaneously 17 copies of same movie and for possessing more than one cassette of same movie besides sale or hire.
34. In view of my above discussion, I am satisfied that the prosecution has been able to prove its case against the accused beyond reasonable doubt. Prosecution has been successful in proving its case that above mentioned infringed articles were recovered from the possession of accused from his both addresses.
35. The offence of infringement is defined in section 51 of the Copyright Act 1957, 1957 and it is punishable u/s.63 The Copyright Act 1957, 1957.
36. Section 13 of the Copyright Act 1957 provides that the copyright subsist in a cinematograph film as well as sound recording, besides other intellectual property with which we Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 13 of 16 are not concerned here.
37. Infringement is defined in Section 51 of The Copyright Act 1957 and it states that Copyright in a work shall be deemed to be infringed when any person, without a licence granted by the owner of the copyright or, by Registrar of Copyrights does anything, the exclusive rights to do which is by the Act conferred upon the owner of the copyright of the said Act. It further provides that copyright shall be deemed to be infringed if 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 also provides that when any person distributes for the purposes of trade any infringing copies, it shall be deemed infringement. Admittedly, Clause (a) of Section 51 and sub clause (iii) and (iv) of Clause (b) of section 51 are not applicable in this case.
38. What are those exclusive rights of a copyright holder, in the case of cinematograph film, is provided in Section 14 (1) (d) of the Act, and it says that copyright in a cinematograph film means, exclusive rights to make copy of film including the photographs of an image; to sell or give on hire or offer for sale or hire any copy of the film; and to communicate the film to the public. Similarly, section 14 (1) (e) provides the exclusive rights given to a copyright holder, in case of sound recording. Thus, Section 14 of the Copyright Act 1957 provides that in the case of a cinematograph film and in the case of a sound recording, copyright means the exclusive right to make a copy of the film, including a photograph of any image forming part thereof; to sell or give on hire or, offer for sale or hire any copy of the film and lastly to communicate the film to the public. Similarly in the case of sound recording copyright means the exclusive right to make any other sound recording embodying it and to sell or give on hire or, offer for sale for hire any copy of the sound recording and, lastly, to communicate the sound recording to the public.
39. Section 63 of the Copyright Act 1957, 1957 makes punishable an offence of infringement when a person knowingly infringes the copyright in a work.
40. Thus by copying the video cassettes of movie Kabhi Na Kabhi and copying the video cassettes of other movie the accused committed infringement. The accused did not produce copyright of any of these movies or assignment of copyright in his favour. This court can take judicial notice of fact that all these movies whose copies were recovered from the accused and which were being copied are recent movies and not very old movies. As per section, 26 & 27 of the Copyright of 1957, the term of copyright is until 60 years from the beginning of the calendar year Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 14 of 16 next following the year in which the film/sound recording is published. These movies are within the term of their copyright. When the accused was found copying these movies, it was for him to show authority of his licence or assignment of copyright in his favour. It is not the case of the accused that he was the author of any of these work. It is also not the case of the accused that no copyright existed in these work. As per the judgment of Hon'ble Supreme Court in the case of State of Andhra Pradesh Vs. Nagoti Venkatramanna IV(1996) CCR 42 (SC) there is no requirement to prove copyright in favour of the authors to bring home a charge for a copyright offence. And therefore in view of above discussion prosecution successfully proved its case for the offence U/s 63 of the Copyright Act against the accused.
41. So far as charge u/s. 68A of Copyright, 1957, is concerned, its ingredients are not proved and the same is not made out against the accused for the reason that it is nobody's case that the sound recordings were published within the meaning of section 3 of The Copyright Act 1957.
42. Section 52A of The Copyright Act 1957, 1957 provides that no person shall publish a sound recording in respect of any work unless particulars as mentioned in Subsection (1) Clause (a) i.e. name and address of the person who made the sound recording; name and address of the owner of the copyright in such work; and year of its first publication are displayed on the sound recording or any container thereof.
43. The necessary ingredient of section 52A of The Copyright Act 1957 is publication of a sound recording and when these particulars are lacking, a person shall be guilty for 68A of The Copyright Act 1957.
44. What is publication is defined in Section (3) of the Copyright Act 1957 , 1957 and it says, that for the purposes of this Act, "publication" means making a work available to the public by issue of copies or by communicating the work to the public.
45. The word communication of a work to the public is defined in Section 2 (ff) of the Act which says that "Communication to the public" means making any work available for being seen or hear or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears, or otherwise enjoys the work so made available.
Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 15 of 1646. In the present case, admittedly none of the cassettes allegedly recovered from the possession of accused were published within the meaning of section 2 (ff) and section 3 of the Act. Nor accused is alleged to have issued any copies thereof to the public. Therefore charge under section 68A of the Copyright Act 1957 is not made out against the accused.
47. Coming to Sec. 65 of the Copyright Act, the accused was found not only in possession of 18 VCRs but it were also used for infringement by copying 17 video cassettes of movie Kabhi Na Kabhi and therefore prosecution has proved its case for offence U/s 65 Copyright Act also.
48. Accordingly, the accused is acquitted for the offence u/s 68A of the Copy Right Act , and he is found guilty and is convicted for the offences U/s 63 and & 65 of the Copyright Act.
ANNOUNCED IN THE OPEN COURT ON 17th SEPTEMBER, 2009. DIG VINAY SINGH ACMM - 03 (IPR) ROHINI, DELHI Judg in State Vs. Jaswinder Singh / FIR no. 252/98 / U/s 63 of Copyright Act / Convicted / dtd 17.9.09 Page 16 of 16