Karnataka High Court
M.G.Aswathanarayana Setty vs State Of Karnataka on 24 July, 2013
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION NO.3359 OF 2009
BETWEEN:
1. M.G.ASWATHANARAYANA SETTY
S/O LATE GOVINDAPPA
AGE 60 YEARS
VASAVI AUTOMOBILES
BANGALORE ROAD
CHALLAKERE
CHITRADURGA DISTRICT
2. S RAJU
S/O SHIVAMURTHY
AGE 36 YEARS
SRI RAGHAVENDRA AUTO PARTS
OM SHIVA COMPLEX, BELLARY ROAD
CHALLAKERE, CHITRADURGA DIST
... PETITIONERS
[BY SRI.B PRAMOD, ADV.,]
AND:
STATE OF KARNATAKA
BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560 001.
...RESPONDENT
[BY SRI.B.RAJA SUBRAMANAYA BHAT, HCGP]
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF THE CR.P.C. WITH A PRAYER TO QUASH THE ENTIRE
CRIMINAL PROCEEDINGS PENDING IN C.C.NO.614/2008
BEFORE THE CIVIL JUDGE (JR.DN) AND J.M.F.C. AT
CHALLAKERE AS ILLEGAL AND ONE WITHOUT
JURISDICTION IN EXERCISE OF ITS INHERENT POWERS
UNDER SEC.482 CR.P.C.
THIS CRIMINAL PETITION COMING FOR ADMISSION ON
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Though the matter is listed for admission today, it is heard for final disposal with consent of both the sides.
2. Petitioners arrayed as accused Nos.1 and 2 in C.C.No.614/2008 on the file of Civil Judge (Jr. Dn.) and JMFC at Challakere have sought for quashing the prosecution launched against them for the offences punishable under Sections 63 and 64 of the Copyright Act, 1957 and Section 420 of Indian Penal Code.
3. Challakere police in Chitradurga District registered case in Crime No.47/2008 on the basis of a report lodged by one Mr.A.Ramesh of C3i Consultants India Private Ltd., alleging that the said company is authorized consultant for M/s Motor Industries Company 3 Ltd., (MICO), which is engaged in the business of manufacturing and making of automated parts and other products and the said company has a trade mark registered. It is further alleged in the report that the complainant has received complaints from various sources that these petitioners are selling spurious products of MICO and while carrying out the market survey and purchasing samples from the automobiles shops of these petitioners, and on comparing with original MICO products, the complainant found it to be spurious. Therefore, he requested the police to investigate the matter and take necessary action against these petitioners for the infringement of trade mark and copyrights of the company. After registration of the case, according to the prosecution, a raid was conducted on the shops of these petitioners and at that time spurious articles like diesel filters were seized in the presence of panchas and on examination of the seized diesel filters, they were found to be fake and spurious. On completion of the investigation, charge sheet came to be filed for the offences punishable 4 under Sections 63 & 64 of Copyright Act, 1957 r/w Section 420 of Indian Penal Code.
4. The learned Magistrate, before whom the charge sheet came to be filed, took cognizance of the offences and ordered issue of summons to the petitioners arrayed as accused Nos.1 and 2. On coming to know of the same, petitioners have presented this petition seeking to quash the prosecution inter alia on the ground that no offence under Section 63 & 64 of the Copyright Act, 1957 is made out since no copyright subsist in the product purported to have been seized and which is alleged to be spurious, as such, no offence is made out as alleged in the charge sheet.
5. I have heard the learned counsel for the petitioner as well as the learned Government Pleader.
6. Section 13 of the Copyright Act, 1957 states as to the works, in which copy right subsists. According to this Section, copy right subsists only in the following classes of 5 works viz., (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording.
Section 14 of the Act reads as under:
1. Meaning of copyright. For the purposes of this Act, "copyright" means the exclusive right, by virtue of, and subject to the provisions of, this
(a) in the case of a literary, dramatic or musical work, to do and authorise the doing of any of the following acts, namely:-
(i) to reproduce the work in any
material form
(ii) to publish the work;
(iii) to perform the work in public;
(iv) to produce, reproduce, perform or publish any translation of the work;
(v) to make any cinematograph film or a record in respect of the work;
(vi) to communicate the work by radio broadcast or to communicate to the public by a loud- speaker or any 6 other similar instrument the broadcast of the work;
(vii) to make any adaptation of the work;
(viii) to do in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in clauses (i) to (vi);
(b) in the case of an artistic work, to do or authorise the doing of any of the following acts, namely:-
(i) to reproduce the work in any material form;
(ii) to publish the work;
(iii) to include the work in any
cinematograph film;
(iv) to make any adaptation of the work;
(v) to do in relation to an adaptation of the work any of the acts specified in relation to the work in clauses (i) to (iii).
(c) in the case of a cinematograph film, to do or authorise the doing of any of the following acts, namely;
(i) to make a copy of the film;
(ii) to cause the film, in so far as it
consists of visual images, to be seen 7 in public and, in so far as it consists of sounds, to be heard in public;
(iii) to make any record embodying the recording in any part of the sound track associated with the film by utilising such sound track;
(iv) to communicate the film by
broadcast;
(d) in the case of a record, to do or authorise the doing of any of the following acts by utilising the record, namely:-
(i) to make any other record embodying the same recording;
(ii) to cause the recording embodied in the record to be heard in public;
1. Subs. by Act 23 of 1983, s. 2 (w. e. f.
9. 8. 1984 )
(iii) to communicate the recording embodied in the record by broadcast;
2. Any reference in sub- section (1) to the doing of any act in relation to a work or a translation or an adaptation thereof shall include a reference to the doing of that act in relation to a substantial part thereof. 8
7. No doubt, Section 63 of Copyright Act, 1957 deals with offences of infringement of copy rights or other rights conferred under this Act. While Section 64 of the Act does not deal with any offence, it only deals with the powers of police officer to seize the infringed copies. The substantial offence alleged would be only under Section 63 of the Act.
8. Reading of Section 13 & 14 as noticed supra makes it clear that the no copyrights subsist in the other work except the one mentioned in Sections 13 & 14 of the Act. Therefore, there is great force in the contention of the learned counsel for the petitioners that the materials on record does not make out any offence under Section 63 of the Copyright Act, 1967. Section 420 of Indian Penal Code is the ancillary offence to the main offence alleged under Section 63 of the Copyright Act, 1957. When the ingredients of the offences punishable under Section 63 of the Act is not attracted, it cannot be said that the ingredients of Section 420 of IPC is made out. Therefore, I am of the considered opinion that the continuance of the 9 prosecution for the aforesaid offence alleged would be abuse of process of Court; as such it is liable to be quashed. If the alleged acts on the part of the petitioner herein attracts any other offence under any other Act, it is open to the prosecution to investigate the same and proceed in accordance with law. In the light of the above observation, petition is allowed. The prosecution launched against these petitioners in C.C.No.614/2008 for the offences punishable under Sections 63 & 64 of the Copyright Act, 1957 r/w Section 420 of IPC is hereby quashed.
SD/-
JUDGE SS*