Bombay High Court
Nirav Shah vs The State Of Maharashtra And Anr on 9 February, 2018
Author: R.M.Savant
Bench: R.M.Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1920 OF 2015
Nirav Danishkumar Shah
Age : 43, Occupation : Professional
R/at : 504, Al Raffa Building, AI
Rolla Street, Bur Dubai,
Dubai, United Arab Emirates ....Petitioner
V/s.
1. State of Maharashtra
(Through Vikhroli Parksite
Police Station, in C.R.88/2015)
2. Shri. Babu Kamble,
Age : 57 years, Occ : Service;
R/at : 201, C-12, Shri. Vijay C.H.S.
Sector-2, Charkop, Kandivli (W),
Mumbai-400 067. ....Respondents
*****
Mr. S.S. Borkar i/by. Mr. M.P. Dalvi, Advocate for the
petitioner.
Mrs. A.S. Pai, Additional Public Prosecutor for the State.
CORAM :- R.M.SAVANT, &
SANDEEP K. SHINDE, JJ.
DATE :- 9TH FEBRUARY, 2018.
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JUDGMENT :-
1. This Writ Petition under Article 226 of the Constitution of India read with Section 482 of the Criminal Procedure Code is preferred for quashing Crime No. 88 of 2015 registered by Vikhroli Parksite Police Station under Sections 292, 353, 420 read with Section 34 of the Indian Penal Code and under Sections 63(B), 64 of the Copyrights Act and Sections 65 and 67 of the Information Technology Act at the instance of one, Babu Kamble, the respondent no.2 herein.
2. It may be stated that the respondent no.2 is a Director of United Protection Services, a Company which undertakes to protect the copyrights of the various companies and eventually either prevents the infringement of such copyrights or liason with the police to register the offence for consideration for / and on behalf of the Company whose copyrights were allegedly infringed.
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3. We have gone through the complaint of Mr. Babu Bhimrao Kamble, as well as, the first remand report dated 24th February, 2015 filed in the said C.R. No.88 of 2015. Offences as aforesaid have been registered against six persons. The petitioner herein is one of the partners of M/s. AU Finja Jewels having its registered office at Mumbai-25. That upon receiving information that, M/s. AU Finja Jewels has installed a pirated Software "Jewelcad", Mr. Kamble with his Associates, approached the Assistant Commissioner of Police and requested him that, appropriate directions may be issued to the Senior Inspector, Vikhroli Parksite Police Station to provide the necessary police force to search the office premises of M/s. AU Finja Jewels where Software "Jewelcad" has been installed. It appears that, Mr. Kamble with his Associates alongwith Mr. Kadam, PSI visited the premises of M/s. AU Finja Jewels at Vikhroli in a "private car" and seized the computers and other apparatus allegedly used for operating the said pirated Software. It appears, the ::: Uploaded on - 22/02/2018 ::: Downloaded on - 22/02/2018 23:30:34 ::: Rane * 4/9 * WP-1920-2015 Friday, 9.2.2018 hardisk and such other electronic hardware was seized under the panchanama at the instance of Mr. Kamble and the offences as aforesaid came to be registered.
4. Heard Learned Counsel for the petitioner and Learned APP for the State.
5. The Learned Counsel appearing for the petitioner has brought to our notice the judgment of Division Bench of this Court in Criminal Application No. 198 of 2016, (Mr. Bharat Vasantlal Mewawala and anr. V/s. The State of Maharashtra & Ors.) (hereinafter referred to as "the said judgment"
for short) and the instructions dated 8th November, 2016 issued by the Additional Director General, State of Maharashtra. He has taken us through the said judgment. We found a striking resemblance between the facts alleged herein and the facts alleged in the cited judgment. In the said judgment, complainant was an employee of M/s. Perfect Anti Piracy Force, who then claimed that, in case ::: Uploaded on - 22/02/2018 ::: Downloaded on - 22/02/2018 23:30:34 ::: Rane * 5/9 * WP-1920-2015 Friday, 9.2.2018 of violation of Copyright Act, 1957 it takes action against the offender with the help of local police. In the said case, M/s. Perfect Anti Piracy Force was given the Power of Attorney by M/s. Modular Infotech Private Limited (owner of Copyright) to locate and detect the cases where its copyrights are infringed. That on the said strength of Power of Attorney, M/s. Perfect Anti Piracy Force through its employee approached the police and thereafter the FIR was registered under Sections 51, 64 and 69 of the Copyright Act, 1957. In the said case, the division Bench in para-17 has observed thus :-
"17. We must clarify here that we are not even suggesting that the offences punishable under the said Act of 1957 should not be taken seriously by the police machinery. We are concerned with the manner in which the police authorities right from the Additional Commissioner of Police, South Zone, have acted. We are more concerned with the fact that someone is carrying on business of registerign First Information Reports and doing liason work with the police. The question is whether higher authorities of the Police will allow the police to deal with someone who is openly carrying on business of doing Liason with Police Department. This is the aspect which ::: Uploaded on - 22/02/2018 ::: Downloaded on - 22/02/2018 23:30:34 ::: Rane * 6/9 * WP-1920-2015 Friday, 9.2.2018 will have to be considered by the Director General of Police."
6. The Learned Counsel thus submitted that, in the case in hand, the Director of United Protection Services with the help of the police searched the premises of the petitioner's Company and thereupon the offence came to be registered. He would therefore submit that, after the judgment in the said cited case on 8 th November, 2016, the Additional Director General, directed all the police stations and its in-charge to ensure that they would not deal with the Agents appointed by the parties to do liason work with the police.
7. That after going through the complaint, we have no doubt in our mind that, the entire process of conducting the search and seizure was at the instance of a private person. Nothing has been brought to our notice that the owners of "Jewelcad", Software had lodged a complaint with the police.
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8. It also appears from the Power of Attorney dated 31st March, 2015 executed by M/s. DELCAM Software (India) Pvt. Ltd being owner of Copyrights in Software "Jewelcad" in favour of complainant and authorised it;
(i)to make surprise visit to the places wherein duplicate products of M/s. DELCAM Software (India) Pvt. Ltd. are stored and used.
(ii)to liaise and lodge FIR with local police wherever such duplicate products are found and book the culprit for cheating and enforcement of Copyrights Act, 1957 under Section 63-B. . It may also be stated, owners of copyright, have authorised Mr. Babu Kamble, complainant herein to recover claim/ damage/ fine as he deems fit.
9. Thus, after going through the complaint, search panchanama, the first remand report, we hold that the ::: Uploaded on - 22/02/2018 ::: Downloaded on - 22/02/2018 23:30:34 ::: Rane * 8/9 * WP-1920-2015 Friday, 9.2.2018 police machinery has been set into motion by the complainant as its business, to ensure that the petitioners are brought to the negotiation table and further to ensure that the petitioners either purchase the Software or pay license fees, and/or damages to the complainant. Thus, the law has been set into motion to make gains by the Agents with the active help of police.
10. We have also perused the investigation papers. The material collected in the investigation even otherwise does not make out the case for registering the offences under Sections 292, 353, 420 read with Section 34 of the Indian Penal Code. No doubt, the offences registered under the Copyright Act are of a serious nature but the manner and the process which has been undertaken for registering the offences is not sustainable in law. The facts of the case clearly indicate that the complainant and the police indulged into activity, much less 'business of registration of offence' which finally results into financial gains to the complainant, which in our view is 'Abuse of ::: Uploaded on - 22/02/2018 ::: Downloaded on - 22/02/2018 23:30:34 ::: Rane * 9/9 * WP-1920-2015 Friday, 9.2.2018 Process of Law'.
11. In the result and for the reasons stated hereinabove, we deem it fit to quash the said Crime No.88 of 2013 registered by the Vikhroli Parksite Police Station under Sections 292, 353, 420 read with Section 34 of the Indian Penal Code and under Sections 63(B), 64 of the Copyrights Act and Sections 65 and 67 of the Information Technology Act. Petition is therefore allowed in the aforesaid terms.
(SANDEEP K. SHINDE, J) (R.M. SAVANT, J) ::: Uploaded on - 22/02/2018 ::: Downloaded on - 22/02/2018 23:30:34 :::