Madhya Pradesh High Court
Mr. Sameer Prabhakar vs The State Of Madhya Pradesh on 12 April, 2018
Author: P.K. Jaiswal
Bench: P.K. Jaiswal
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HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
M.Cr.C.No.10164/2015
(S.B. Hon'ble Shri P.K. Jaiswal, J.)
M.Cr.C. No.10164/2015
SAMEER & ANR.
VERSUS
STATE OF M.P. & ANR.
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Shri Viney Gandhi, learned counsel for the petitioners.
Shri P.C. Bagadiya, Advocate for respondent No.2.
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ORDER
(12.4.2018) By this petition under Section 482 of Cr.P.C, 1973, the petitioners
-accused have challenged the order dated 21.8.2015 by which their application for discharge filed under Section 239 of Cr.P.C, 1973 has been dismissed and charge has been framed against them under Section 37 read with Section 63 of the Copyright Act, 1957.
2. The facts of the case are that on 27.12.2013, complainant - Ravindra Singh, lodged a complaint against the petitioners on the ground that during survey conducted by the complainant's company, they found that M/s. Central India Digital Network Pvt. Ltd, DIGI Cable and group are illegally broadcasting and doing piracy of the channels of M/s. Taj Television (I) Pvt. Ltd in certain areas of Indore. There is no agreement made between the said persons and group and M/s. Taj Television (I) Pvt. Ltd. for the broadcasting and distribution. Further, the said persons and group not using the authorized electronic instrument of M/s. Taj Television (I) Pvt Ltd and by using any other electronic instrument, stealing the signals and illegally broadcasting the pay TV channels of M/s. Taj Television (I) Pvt Ltd. By doing such illegal act, they are violating Section 37 and 63 of the Copyright Act,1957.
3. On the basis of the aforesaid complaint, an FIR for the offence under Section 37 and 63 of the Copyright Act, 1956, was registered against the petitioners bearing Crime No.839/2013 by the Police in-
2HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE M.Cr.C.No.10164/2015 charge of the Police Station, MIG, Indore. On 10.9.2014, after completion of the investigation by the police, charge sheet No.433/2014, has been filed under Section 37 and 63 of the Copyright Act. The name of the petitioners appeared as accused in the charge sheet. On 17th July, 2015, the petitioners No.1 and 2 filed an application under Section 239 of CrP.C., for discharge before the Judicial Magistrate First Class, Indore, on various grounds including the ground that company has not been arrayed as an accused, therefore, the prosecution against the petitioners is not maintainable by reasons of the provisions of Section 69 of the Copyright Act, 1957. The learned Judicial Magistrate First Class, without considering the law laid down by the Apex Court from time to time that, the Directors cannot be prosecuted in isolation unless the company itself has been arrayed as a principal accused rejected the application by impugned order.
4. Learned counsel for the petitioners has drawn my attention to Section 69 of the Copyright Act, 1957, and the law laid down by the Apex Court in the case of Aneeta Hada V/s. Godfather Travels and Tours Pvt. Ltd reported as 2012 (5) SCC 661 and Sharad Kumar Sanghi V/s. Sangeeta Rane reported as 2015 (12) SCC 781 and submitted that the petitioners cannot be prosecuted in isolation in the absence of the company being arrayed as an accused for the offence under the Copyright Act.
5. Per contra, Shri P.C. Bagadiya, learned counsel for the respondent No.2 has submitted that the petitioners who are heading the affairs of the company are certainly responsible for the acts of the company as they alone are in a position to decide the operations of the company. He further submitted that the petitioners shall have to prove their defence in the trial by adducing evidence and cannot ask the Court to adjudicate on the vague assertions of the petitioner regarding their post and duties. The learned trial court can always include the company or such other persons as may appear to it to have any relation to the offence at any stage of trial. The same cannot be a ground for dismissal of the 3 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE M.Cr.C.No.10164/2015 complaint under Section 482 of the Cr.P.C and prayed for rejection of the application.
6. I have heard the learned counsel for the parties and perused the record.
7. Section 69 of the Copyright Act, which deals with the offences by Companies reads as under :-
"69. Offences by companies.- (1) Where any offence under this Act has been committed by a company, every person who at the time of offence was committed was in charge of, and was responsible to the company for, the conduct of the business of the company, as well as the company shall be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-
section (1) where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any director manager secretary or other officer of the company such director manager secretary or other officer of the company shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation : For the purposes of this section -
(a) "company" means any body corporate and includes a firm or other association of individuals and
(b) "director" in relation to a firm means a partner in the firm."
8. In the present case, as clear from the averments of FIR and charge sheet, the offence, if any, under Section 37 read with Section 63 is committed by the company, by broadcasting channels of the complainant, without due permission. However, the company has not been arrayed as an accused which is imperative as the law laid down by the Apex Court in the case of Aneeta Hada (supra) and alone the official of the company made liable on the basis of principle of vicarious liability. Since the company has not been arrayed as an accused, 4 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE M.Cr.C.No.10164/2015 therefore, the prosecution against the petitioners is not maintainable. In the case of Aneeta Hada (supra), the Supreme Court has laid down the law with regard to the prosecutions of Directors of companies where the companies principle offender. Their Directors cannot be prosecuted in isolation unless the company itself has been arrayed as the principal accused. Though the said judgment was passed for the offence under the Special Acts and in this case, the Special Act being the Copyright Act, 1957, by which Section 69 provides for prosecution for the Director of the company whereby the company is principle offender, the petitioner cannot be prosecuted as the company has not been made an accused.
9. Recently, the Apex Court itself in the case of Sharad Kumar Sanghi (supra) has extended the law laid down in the case of Aneeta Hada (supra) wherein it is held that the Directors of the company cannot be prosecuted in isolation in the offence of company being arrayed as an accused for the offence under the Indian Penal Code.
10. The aforesaid proposition of law is quite clear on the point that Directors of the company cannot be prosecuted unless the company is arrayed as party.
11. Considering the fact that the company is no more party, the proceeding in the complaint case cannot be allowed to continue against the petitioners.
12. Accordingly, this petition deserves to be and is hereby allowed. The proceedings against the order dated 25.8.2015 and the proceedings against the petitioners in Case No. 33665/2014, stands quashed.
(P.K. JAISWAL) JUDGE ss/-
Digitally signed by Shailesh Sukhdev Date: 2018.04.16 15:27:49 +05'30' 5HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE M.Cr.C.No.10164/2015 HIGH COURT OF MADHYA PRADESH : INDORE BENCH, INDORE (Single Bench Hon'ble Justice Mr. P.K. Jaiswal) M.Cr.C. No.10164/2015 SAMEER & ANR.
VERSUS STATE OF M.P. & ANR.
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Post for : - /4/2018
(P.K. JAISWAL)
JUDGE
. 4.2018
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HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE M.Cr.C.No.10164/2015 02.4.2018 Shri Viney Gandhi, learned counsel for the petitioners. Shri P.C. Bagadiya, Advocate for respondent No.2. Heard.
Reserved for orders.
(P.K. JAISWAL, J) ___04.2018 Order passed separately, signed and dated.
(P.K. JAISWAL, J)