Patna High Court
Roma Mitra vs State Of Bihar on 19 February, 2011
Author: Rakesh Kumar
Bench: Rakesh Kumar
CRIMINAL MISCELLANEOUS NO. 31757 OF 2000
IN THE MATTER OF AN APPLICATION UNDER SECTION
482 OF THE CODE OF CRIMINAL PROCEDURE, 1973.
*******
ROMA MITRA, W/O DR. (PROF.) N.R. MITRA, RESIDENT OF VILLAGE- PROFESSOR
COLONY, PATEL NAGAR, P.S.- KOTWALI, BHAGALPUR, DISTRICT- BHAGALPUR
-------- PETITIONER
VERSUS
1. STATE OF BIHAR ------- OPP. PARTY (O.P. NO.1)
2. DR. (MRS.) SUTAPA BHATTACHARYA, FORMERLY SUTAPA LAHERI, W/O DR.
BHASKAR BHATTACHARYA, R/O-11, BAMANPARA LANE, P.O.- BAILYGANJ,
CALCUTTA, PRESENTLY RESIDING AT HOUSING ESTATE BIREN ROY ROAD,
CALCUTTA-61 -------- COMPLAINANT (O.P. NO. 2)
********
FOR PETITIONER: MR. SANJAY KUMAR VERMA,
MR. SANJAY KUMAR
FOR O.P. NO.1: MRS. INDU BALA PANDELY, A.P.P.
FOR O.P. NO. 2: MR. ANIL SINGH, ADVOCATE
MR. SUBHASH CHANDRA JHA, ADVOCATE
*******
PRESENT
THE HON'BLE MR. JUSTICE RAKESH KUMAR
Rakesh Kumar, J. The sole petitioner, invoking inherent jurisdiction of this
court under Section 482 of the Code of Criminal Procedure has prayed
for quashing of an order dated 30.9.2000 passed by the Judicial
Magistrate, Ist Class, Bhagalpur in Complaint Case No. 454 of 2000. By
the said order, learned Magistrate has taken cognizance of offence under
Sections 63, 67 & 68 of the Copy Right Act, 1957 and Section 120B of
the Indian Penal Code.
2. Short fact of the case is that, the Opposite Party No. 2
filed a complaint in the court of learned Chief Judicial Magistrate,
Bhagalpur vide Complaint Case No. 454 of 2000 making an allegation
against the petitioner for commission of offence under Sections 120B,
419, 420, 467, 468, 469 & 471 of the Indian Penal Code and Sections 67
& 68 of the Copy Right Act. The complainant disclosed that she had
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registered herself for Ph.D. research in Bhagalpur University and her
subject was "POLITICAL MOBILISATION AND CASTE-
CONFLICT IN BIHAR SINCE 1967 TO 1980 - A SURVEY". For
the said subject the petitioner was her guide and under the guidance of
the petitioner the opposite party prepared a thesis, on the basis of which,
she conducted research in between 1983 and 1988. The complainant did
her work over the subject and she remained in contact with the petitioner
for preparing her research work, which was submitted after its
completion in the month of March 1988. In the said thesis, the petitioner
had also given certificate, that the thesis was a record of work done by
the complainant herself to the best of her knowledge and the contents of
the thesis did not form a basis of award of any degree to anyone else and
petitioner also recommended the complainant as fit and proper person
for award of degree of Ph.D. On 25.7.1988, the petitioner was declared
successful in the Ph.D. examination held in the month of July, 1988 by
the Controller of Examination, Bhagalpur University by way of
accepting her thesis i.e. "POLITICAL MOBILISATION AND
CASTE-CONFLICT IN BIHAR SINCE 1967 TO 1980-A
SURVEY". It was further alleged by the complainant, that the subject of
thesis became more and more relevant after installation of Janta Party
Government at Centre and in Bihar in the year 1989-90. It was alleged
that taking advantage of the changed scenario the petitioner published a
book in the year 1992 under the title "CASTE POLARISATION AND
POLITICS" describing herself as the author and other accused persons
as publisher and printer. Thereafter, the accused persons marketed the
book and earned a lot.
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3. It was further disclosed by the complainant, that after
completing her research work and getting Ph.D. degree she permanently
settled at Calcutta, West Bengal with her husband. In the second week of
April, 2000, the complainant visited Bhagalpur and during said stay she
learnt about the book published by the petitioner. After obtaining a copy
of the book she came to know that the book was virtually copied from
the thesis of the complainant herself and as such, the complaint was filed
by the complainant. After conducting enquiry, the learned Magistrate by
its order dated 30.9.2000, took cognizance of offence under Section
120B of the Indian Penal Code and Sections 63, 67 & 68 of the Copy
Right Act.
4. Aggrieved with the order of cognizance, the petitioner
approached this court by filing the present petition which was admitted
on 11.12.2001 and while issuing notice to opposite party no. 2, this court
also directed that during the pendency of the application further
proceedings in Complaint Case No. 454 of 2000 pending in the court of
Judicial Magistrate, Ist Class, Bhagalpur shall remain stayed and order
of stay is still continuing. In this case, opposite party no. 2 / complainant
has already appeared through her Advocate and also filed a counter
affidavit refuting the claim of the petitioner.
5. Sri Sanjay Kumar Verma, learned counsel for the
petitioner while challenging the order of cognizance, at the very outset,
has argued that the allegation of the complainant, regarding copying
from the thesis of the complainant is not sufficient for attracting either of
the penal provisions of the Copy Right Act. In view of peculiar facts and
circumstances of the present case, it was argued that it is not a case that
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the petitioner had exactly copied from the thesis of the complainant.
Moreover, thesis by the complainant itself was prepared under the
guidance of the petitioner. Even ideas and language of the petitioner, to
some extent, was adopted by the complainant while preparing thesis.
The complainant, in her complaint herself has admitted, that from the
year 1983 to 1988, she was under the guidance of the petitioner, and in
her guidance the complainant had prepared thesis on the subject
"POLITICAL MOBILISATION AND CASTE-CONFLICT IN
BIHAR SINCE 1967 TO 1980 - A SURVEY". So far allegation of
similarity is concerned, it was the petitioner, who even prior to the
preparation of thesis, on the subject by the complainant, had herself
published several literatures / books similar to the subject on which
thesis was prepared by the complainant under the guidance of the
petitioner. It was argued that, in a case of a guide and disciple the
allegation of copying from the thesis by the guide cannot be applicable
unless it is a case of exact copying from the thesis. The learned
Magistrate, even during the enquiry, and its order of cognizance, had
not held that it was exact copy from the thesis of the complainant but the
learned Magistrate to some extent had found similarity of the contents.
Sri Verma, has further argued that the petitioner being a guide of the
complainant had guided the complainant to go through certain
unpublished manuscript for preparing the concept of thesis, and even the
expression of the petitioner, to some extent, was adopted by the
complainant while doing the research and preparing the theses.
6. Sri Verma, submits that petitioner being a commissioned
Professor of Tilka Manjhi Bhagalpur University and reputed teacher has
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worked on several topics, which have been published in different
journals, and at least seven persons including the complainant have
completed their thesis under the guidance of the petitioner, and they
were awarded Ph.D. degree. The petitioner, being renowned Professor
has worked on different topics. Learned counsel for the petitioner, has
also contended while referring to paragraph 14 of the petition, that the
petitioner was author of following important publications:
1. Fundamentals of the Caste System: Published in 1984
2. Emergence of Caste From Class: Published in 1987.
3. Exploitation of Caste in Bihar Polity: Published in 1987
4. Lok Prasashan (In Hindi): Published in 1992
5. Socio-Economic and Political Impact of Reforms:
Published in 1999
6. Caste Polarizatemerion and Politics: Published in 1992
7. It was further argued by Sri Sanjay Kumar Verma,
learned counsel for the petitioner, that in the present case, book in
question, was published in the year 1992, and present complaint was
filed by the opposite party no. 2, in the month of May, 2000 i.e. almost
after lapse of about eight years from the date of publication, and as
such, the order of cognizance was barred under Section 468 of the Code
of Criminal Procedure. In support of his argument, learned counsel for
the petitioner has relied on 2005 (1) PLJR (SC) 95 (Zandu
Pharmaceutical Works Ltd. Vs Md. Sharaful Haque), A.I.R. 2003 SC
3635 (Ramesh Chandra Sinha Vs The State of Bihar) and 1980 (1)
Cr.L.J. 339 (Panney Singh Vs The State of Rajasthan). It was submitted,
that on the ground of limitation itself, the order of cognizance is liable to
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be set aside. It was further argued, that the facts and circumstances of the
present case, hardly makes out a case of civil nature, and in such
circumstances, criminal court may not be allowed to be abused.
8. Sri Anil Singh, learned counsel appearing on behalf of
the opposite party no. 2, has strongly opposed the prayer of the
petitioner. It was argued, that the question of limitation is considered
from the date of knowledge, not exactly from the date of commission of
the offence. In the present case, the complainant has made a categorical
statement in her complaint petition that after completing her thesis in the
year 1988, she was settled at Calcutta, and while sometime in the year
2000, she came back to Bhagalpur, she could know that the petitioner
copying thesis of the complainant had become author of a book which
was published in the year 1992. Accordingly, it was submitted by Sri
Anil Singh, that the complainant had given a plausible explanation for
delayed filing, and as such, on the ground of limitation the order of
cognizance may not be set aside.
9. Sri Anil Singh has strongly argued, that the petitioner
had approached this court while invoking its inherent jurisdiction under
Sections 482 of the Code of Criminal Procedure against the order of
cognizance. It was submitted, that repeatedly it has been held that, at
initial stage, this court may not interfere with the criminal proceeding.
At the time of cognizance only, requirement is to see, as to whether, a
prima facie case is made out or not. In support of his argument, Sri
Singh, has relied on A.I.R. 1992 SC 1894 (Mohinder Singh Vs Gulwant
Singh). It was submitted, that Hon'ble Supreme Court has held, that
during the enquiry, only thing is required to be seen, as to whether, on
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the basis of materials on record a prima facie case is made out or not for
putting the proposed accused on a regular trial. Sri Singh, has also relied
on 1993 Cr.L.J. 3537 (State of Bihar Vs K.J.D. Singh) regarding
inherent jurisdiction of the court. In sum and substance, it was
submitted, that this court may not interfere with the order of cognizance
in view of the facts and circumstances of the present case. Accordingly,
it has been prayed to reject the present petition.
10. Besides hearing learned counsel for the parties, I have
also perused the materials available on record.
11. There is some substance in the argument advanced by
learned counsel for the petitioner, that since petitioner was the guide of
the complainant, there was possibility of recording expression of the
petitioner by the complainant in her thesis, and on such, similarity it
cannot be said, that the petitioner, while being an author of a book
published in the year 1992 had exactly copied from the thesis of the
complainant. The court is conscious of the fact, that while hearing a
petition under Section 482 of the Code of Criminal Procedure, no such
finding can be recorded by this court nor this court can conduct a roving
enquiry, and as such, it would not be appropriate to record any finding
on the merit of the case. So far question of limitation, which has been
raised by learned counsel for the petitioner is concerned, there is
substance in the argument. It is true, that in complaint petition, some
explanation was tried to be given regarding filing of the complaint after
about eight years from the date of publication but in the order of
cognizance the learned Magistrate has not at all dealt with the delay nor
he has passed any order for condoning the delay. In the present case,
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learned Magistrate has taken cognizance of the offence under Sections
63, 67 & 68 of the Copy Right Act and Section 120B of the Indian Penal
Code. So far as, maximum punishment under Sections 67 & 68 is
concerned, it is punishable not for more than one year. So far as,
punishment under Section 63 is concerned, for said offence, maximum
punishment is sentence of three years, and as such, in the present case,
restriction under Section 468(2)(C) will be applicable and accordingly,
after the expiry of three years, the learned Magistrate was not justified to
take cognizance of the offence. In the present case, the learned
Magistrate while taking cognizance of the offence, has not passed any
order on the point of limitation. Learned counsel for the petitioner, has
rightly relied on Zandu Pharmaceutical Works Ltd. Case (Supra), and
the court is of the opinion, that in the present case, order of cognizance
is barred by limitation, as prescribed under Section 468(2)(C) of the
Code of Criminal Procedure, and as such, the order of cognizance dated
30.9.2000passed by learned Judicial Magistrate, Ist Class, Bhagalpur is hereby set aside and petition stands allowed.
( Rakesh Kumar, J.) Patna High Court, Patna.
Dated 19th February, 2011 Praful/N.A.F.R.