Gujarat High Court
Kamleshbhai R Suratwala vs State Of Gujarat on 21 November, 2024
NEUTRAL CITATION
R/CR.MA/16946/2018 ORDER DATED: 21/11/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 16946 of 2018
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KAMLESHBHAI R SURATWALA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
JAY R TALAVIA(9311) for the Applicant(s) No. 1
MR. BHAUMIK DHOLARIYA for MR.ADITYA J PANDYA(6991) for the
Applicant(s) No. 1
MR DIPEN K DAVE(3296) for the Respondent(s) No. 2
MS MONALI H BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 21/11/2024
ORAL ORDER
1. This application is filed under Section 482 of the Criminal Procedure Code, 1973 for quashing and setting aside the FIR being C.R. No.II/187/2018 registered with Vastrapur Police Station, Ahmedabad City for the offence punishable under Section 63 of the Copy right Act, 1957.
2. Rule returnable forthwith. Learned APP Monali H. Bhatt waives service of notice of Rule on behalf of the respondent- State and the learned advocate Mr. Dipen K. Dave waives service of notice of Rule on behalf of the respondent No.2. Page 1 of 15 Uploaded by RINKU MALI(HC01574) on Sat Nov 30 2024 Downloaded on : Fri Dec 06 22:20:53 IST 2024
NEUTRAL CITATION R/CR.MA/16946/2018 ORDER DATED: 21/11/2024 undefined
3. Considering the facts and circumstances of the case and with the consent and the request of the learned advocates for the parties, this matter is taken up for final disposal forthwith.
4. Heard learned advocate Mr. Bhaumik Dholariya for the learned advocate Mr. Aditya J. Pandya for the applicant, learned advocate Mr. Dipen K. Dave for the respondent No.2 and learned APP Ms. Monali H. Bhatt for the respondent-State.
5. The brief facts of the case are as under:-
5.1. The complainant in the complaint has alleged that pursuant to the license agreement dated 18.11.2016, the accused was permitted to use the trade mark for running a restaurant. As the accused committed breach of the terms and conditions of the said license agreement, license agreement was terminated, however, the accused continued using the trade mark and also continued occupying premises and when the complainant inquired and found that the accused was running a restaurant in Page 2 of 15 Uploaded by RINKU MALI(HC01574) on Sat Nov 30 2024 Downloaded on : Fri Dec 06 22:20:53 IST 2024 NEUTRAL CITATION R/CR.MA/16946/2018 ORDER DATED: 21/11/2024 undefined the name of Stuff's Food and also found that employees were present in the uniform mentioning the name Stuff's Food.
Hence, FIR was registered on 03.08.2018 for the offence punishable under Section 63 of the Copy Right Act, 1957.
6. Learned advocate for the petitioner submits that looking to the nature of the complaint and looking to the notice transaction which was ensued between the parties, a Civil dispute has been coloured as a Criminal dispute. It is further submitted that the notice dated 07.03.2018 issued by the complainant was replied to by the applicant on 28.03.2018. It is further submitted that the notice dated 07.03.2018 is self-contradictory as on the one hand, complainant asked the applicant to immediately stop, cancel and / or delete any trade names under the trade mark "Stuff's Food"
and on the other hand, asked the applicant to pay the entire amount which is due under the license agreement and further asked to comply with the terms and conditions of the agreement dated 15.10.2016 and 18.11.2016. It is further submitted that Page 3 of 15 Uploaded by RINKU MALI(HC01574) on Sat Nov 30 2024 Downloaded on : Fri Dec 06 22:20:53 IST 2024 NEUTRAL CITATION R/CR.MA/16946/2018 ORDER DATED: 21/11/2024 undefined thereafter, a notice dated 28.08.2019 invoking the arbitration clause was given by the complainant, against which, no reply was given by the applicant. It is further submitted that thereafter complainant did not pursue the said notice and till date no arbitration proceedings are initiated pursuant to the said notice.
It is further submitted that upon registration of the impugned FIR, the applicant has stopped using the trade mark. It is further submitted that the provisions of Section 63 of the Copyright Act, 1957 are not attracted as the alleged trade mark of the complainant is not a registered trade mark.
7. Per contra, learned advocate Mr. Dipen Dave for the respondent No.2-complainant submitted that the license agreement has come to an end in connection with the breach being committed by the applicant. It is further submitted that the notice dated 07.03.2018 in clear terms terminates the license agreement and such termination is in complete consonance with the terms and conditions of the license agreement. Learned Page 4 of 15 Uploaded by RINKU MALI(HC01574) on Sat Nov 30 2024 Downloaded on : Fri Dec 06 22:20:53 IST 2024 NEUTRAL CITATION R/CR.MA/16946/2018 ORDER DATED: 21/11/2024 undefined advocate for the respondent has relied upon Clause No.3.9 of the license agreement, which speaks about the consequences of default in payment of license fee. It is further pointed by the learned advocate for the respondent that since the agreed license fees and the other amount, were not paid by the applicant the agreement was terminated and in absence of any license to use the trade mark of the complainant, provisions of Section 63 of the Copyright Act are squarely applicable and the FIR may not be quashed.
8. Having considered the submissions and materials placed on record together with the impugned FIR, the allegations made in the complaint are that the applicant did not comply with the terms and conditions of the license agreement and as the conditions were breached by the applicant, notice dated 07.03.2018 came to be issued, whereby the applicant was asked to stop, cancel and / or delete any trade names domain names and the services, which are being provided under the Trade Page 5 of 15 Uploaded by RINKU MALI(HC01574) on Sat Nov 30 2024 Downloaded on : Fri Dec 06 22:20:53 IST 2024 NEUTRAL CITATION R/CR.MA/16946/2018 ORDER DATED: 21/11/2024 undefined Mark Stuff's. The applicant was directed to hand over all promotional materials, advertisements, letter head etc. containing the trade mark Stuff's and also directed to destruct any material which contains trade marks Stuff's. The complainant further asked for the damages and as the account was not settled, the applicant was asked the accounts for the profit, which was earned during the subsistence of the license agreement.
9. Section 63 of the Copyright Act, which is reproduced hereinbelow:-
"63. Offence of infringement of copyright or other rights conferred by this Act.--Any person who knowingly infringes or abets the infringement of--
(a) the copyright in a work, or
(b) any other right conferred by this Act, except the right conferred by section 53A] [shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:
Provided that where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.Page 6 of 15 Uploaded by RINKU MALI(HC01574) on Sat Nov 30 2024 Downloaded on : Fri Dec 06 22:20:53 IST 2024
NEUTRAL CITATION R/CR.MA/16946/2018 ORDER DATED: 21/11/2024 undefined Explanation.--Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section".
The said provision mandates that any person who knowingly infringes or abets infringement of the copyright in a work, or any other right conferred by this Act shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.
10. Learned advocate for the petitioner could not place on the law to substantiate the contention that since the copy right is not registered, provisions of Section 63 of the Act is not applicable. In absence of material placed on record, at this stage, while exercising the jurisdiction under Section 482 of the Code of Criminal Procedure, only the allegations made in the FIR are looked into, in the catena of decisions, it has been held that the FIR is not an encyclopedia and after investigating into the Page 7 of 15 Uploaded by RINKU MALI(HC01574) on Sat Nov 30 2024 Downloaded on : Fri Dec 06 22:20:53 IST 2024 NEUTRAL CITATION R/CR.MA/16946/2018 ORDER DATED: 21/11/2024 undefined alleged offence, it can be said whether the applicant is involved in the commission of offence or not.
11. At this stage, in a recent decision of the Hon'ble Supreme Court in case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors., reported in 2021 (19) SCC 401, is required to be referred to. After taking into consideration the earlier decision of State of Haryana V. Bhanaj Lal, reported in 1992 Supp (1) SCC 335 and others. The Hon'ble Supreme Court has observed in Paragraph Nos.10.3 & 33, which are as under:
"10.3.Then comes the celebrated decision of this Court in the case of Bhajan Lal (supra). In the said decision, this Court considered in detail the scope of the High Court powers under section 482 Cr.P.C. and/or Article 226 of the Constitution of India to quash the FIR and referred to several judicial precedents and held that the High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. At the same time, this Court identified the following cases in which FIR/complaint can be quashed:
"102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code.Page 8 of 15 Uploaded by RINKU MALI(HC01574) on Sat Nov 30 2024 Downloaded on : Fri Dec 06 22:20:53 IST 2024
NEUTRAL CITATION R/CR.MA/16946/2018 ORDER DATED: 21/11/2024 undefined (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." In the above decision, the Apex Court came to the conclusion that, "33. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under section 482 of Cr.P.C and/or under of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under section 173 of Cr.P.C., while dismissing/ disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under section 482 of Cr.P.C. and/or under section 226 of the Constitution of India, our final Page 9 of 15 Uploaded by RINKU MALI(HC01574) on Sat Nov 30 2024 Downloaded on : Fri Dec 06 22:20:53 IST 2024 NEUTRAL CITATION R/CR.MA/16946/2018 ORDER DATED: 21/11/2024 undefined conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported.Page 10 of 15 Uploaded by RINKU MALI(HC01574) on Sat Nov 30 2024 Downloaded on : Fri Dec 06 22:20:53 IST 2024
NEUTRAL CITATION R/CR.MA/16946/2018 ORDER DATED: 21/11/2024 undefined Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under section 482 of Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under section 482 of Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be Page 11 of 15 Uploaded by RINKU MALI(HC01574) on Sat Nov 30 2024 Downloaded on : Fri Dec 06 22:20:53 IST 2024 NEUTRAL CITATION R/CR.MA/16946/2018 ORDER DATED: 21/11/2024 undefined relegated to apply for anticipatory bail under section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under section 173 Cr.P.C., while dismissing/disposing of the quashing petition under section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."
12. In view of the above finding given by the Apex Court in case of Neeharika Infrastructure Pvt. Ltd. (Supra), it transpires that the power of quashing of criminal proceedings should be exercised very sparingly and with circumspection and that too in rarest of the rare cases and it was not justified for the Court in embarking upon an inquiry as to the reliability or genuineness or Page 12 of 15 Uploaded by RINKU MALI(HC01574) on Sat Nov 30 2024 Downloaded on : Fri Dec 06 22:20:53 IST 2024 NEUTRAL CITATION R/CR.MA/16946/2018 ORDER DATED: 21/11/2024 undefined otherwise of the allegations made in the FIR or the complaint and that the inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and fancies. It is well settled that at the stage when the High Court considers a petition for quashing criminal proceedings under section 482 of the Cr.P.C, the allegations made in the FIR must be read as they stand and it is only if on the face of the allegations that no cognizable offence, as alleged has been made out, that the Court may be justified in exercising its jurisdiction to quash.
13. Applying to the law laid down by the Hon'ble Supreme Court in case of Neeharika Infrastructure Pvt. Ltd. (Supra) to the facts of the case in hand, this Court is of the firm opinion that this is not a fit case to entertain present application and to quash the criminal proceedings in exercising the powers under Section 482 of the Code of Criminal Procedure at the threshold. The submissions made on behalf of the petitioner that he is an Page 13 of 15 Uploaded by RINKU MALI(HC01574) on Sat Nov 30 2024 Downloaded on : Fri Dec 06 22:20:53 IST 2024 NEUTRAL CITATION R/CR.MA/16946/2018 ORDER DATED: 21/11/2024 undefined innocent and/or he has not committed any offence alleged is premature.
14. In the case of Dineshbhai Chandubhai Patel Versus State of Gujarat & Ors. reported in 2018 (4) GLR 2914 SC, wherein it has been observed in paragraph Nos.31 and 33, which are reproduced hereunder:-
"31. In our considered opinion, once the Court finds that the F.I.R. does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step in to initiate the probe to unearth the crime in accordance with the procedure prescribed in the Code.
33. The inherent powers of the High Court, which are obviously not defined being inherent in its very nature, cannot be stretched to any extent and nor can such powers be equated with the appellate powers of the High Court defined in the Code. The parameters laid down by this Court while exercising inherent powers must always be kept in mind, else it would lead to committing the jurisdictional error in deciding the case. Such is the case here."
15. The inherent powers of the High Court, which are adversely not defined being inherent in its nature, cannot be stretched to any extent and nor can such powers be equated with the appellate powers of the High Court defined in the Code. The parameters laid down in catena of decisions while exercising Page 14 of 15 Uploaded by RINKU MALI(HC01574) on Sat Nov 30 2024 Downloaded on : Fri Dec 06 22:20:53 IST 2024 NEUTRAL CITATION R/CR.MA/16946/2018 ORDER DATED: 21/11/2024 undefined inherent powers must also be kept in mind else it would lead to committing to jurisdictional error in deciding the case once the Court finds that the complaint does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step into initiate the probe to unearth the crime in accordance with the procedure prescribed in the Code.
16. In view of the above and for the reasons stated herein above, no case is made out to quash the FIR / criminal proceedings at this stage while exercising the powers under Section 482 of the Code of Criminal Procedure. Therefore, present application fail and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. No order as to costs. Interim relief, if any, stands vacated.
(D. M. DESAI,J) RINKU MALI Page 15 of 15 Uploaded by RINKU MALI(HC01574) on Sat Nov 30 2024 Downloaded on : Fri Dec 06 22:20:53 IST 2024