Karnataka High Court
Sri V Appa Rao vs State By City Market Police Bangalore on 3 October, 2008
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS rm an» DAY or Q cTr:» (525 R
BEFORE
THE I-£OH".8LE am. msrxcm T -A
CRL.R.P * ,
BETWEEN: *
S}:i.V. Appa Rae, _
S/0. Late v.s.R.= Murtfxy', --.
Aged about 66 y*t$é;"S, _ .
No.18/44, MES CGi£Gn}>j,~°
Aiwal, S¢cundcra}3a.d ~m' '15"~._.. ' «V '.;Petiti0I1er.
(smt.k%A§:aradna;%k?rer C'.V.....-'fildhindra, Adv.)
State CiityAIa%[é;12%.?_{et Police
;' 'fiangalcrg.' ' '
V Murazi, %
_ 1 c;.H,1~z"~%. Srikantaiah, %
A-g;Cd_abOi1t 42 years,
No.1 1:51, 22nd Cross Road, %
Z23"? Road,
" Banashankafi QM Stagc,
" Bangalore - 560 070.
: Sri.S.G. K1*isI111amurthy,
S] 9. Gangadharappa,
, Aged about 32 years,
c--.._$"'"'-~---«---
F.)
N9. 19/ 1, 4*' Main, 15% Cross,
Vi m Chamarajpet,
Bangalore.
E5_ri.S. Sanjay, ,
8/o-. Siddaiah, _
Aged about :44 years,
No.3,' 3, 8th Cm-as,
Chamarajapete,
Batlgaiorcz.
Sxi. Sricharan,
S/0. Bhaskagr Rap _ _' V
Aged about 44"years--,
No.14/1, am Maix1,._4€)51 cmss,-;~.
Jay-arxagax Sthfiicclg, " 1 ..
Ba~x1ga1c:¥.*;ifi-7:°.2- +--- 560 341. VA
K
'Fr/{);'N. Krijshr-;.:aV-Iye§1g3r,,
Agtzd; %55_y{:§a.I'$, .~
_Noj.4, 7"? 'Crass; '
' 'V LABariga»1§)r::.
swimm:ng-- kw; 'Ex ,
MaBeshxvar::ag1.1;« --~ '
.Rcspondcnts.
: E9:{BjfSr1.A.i''Rama1mshna,MCGP for R-1,
" Manjunatll, Adv. for R-5,
M] -iémakara and Assts. Adv. for R4'), 6
Bhagawan, Adv. for R-2, R-4 served)
a {ms cr:.R.P is filed umer Section 397 of Cr.P.C.
AA pray
ing to set aside the order of acquittal passed by the
V' , IV? Addl.CMM., Bangalore: in {3.C.No.8169/2000 datcd
L279
.2006.
.
This Cr1.R.P coming on far further argumentsthis day, the Court made the following : ~ % gem The petitioner herein, whe "was the' " " V Doerdarshan Kendra, §a1:1ga1ore':,---_ a:,:j1_'t;{.:'a1e<:)' 'otfie charge sheet Wimesses Ne;'3 'A1':§9*;i£}G§ on = L' the file of the learned__ :v Ad;c1;ié5,:;:;a1e.Fcrfier .Me:r%i;poutan Magstiate, to as the "ACMM", for 'V sé.f1 G.1_'_t) legality and CO1'I'€Ct1'1€SS- and order of acquit§:a1"'de;§e;i 'jjaesed in the said case aequit¥; ir_1g" 3103.1 to 5 th€I'CiI} of the offences Stf{3tiAiC¥_I:1S~~--"'b37, 63, 65 of Copy Right Act,
- semi of IPC.
._ this case was listed for adnnission on V .V dateé .1'S:.9'.'§'OO8, it was taken up fer final disposal with K égzofisent of the learned Advocates fer bath the eexiteeting parties and also the learned High Ceurt (....C""""'\/""
learned Ivth ACMM, Bangalore, challenging the legality and V correctness of the impugned .. _v 'v .1 " .. _T ' judgment and order of aoquittcfl. ' 3...: If _ mamtamable?
2. Whether, in meoocr;.~,'o o circumstances Voj'___tf2e * impugned . order acquittal vc!£:$ervgs***toL_:£ré'*s_;et and the hzéitter be ?'€?TL(1?ICi€d A for ' Iordyéd:-'";for,..Tby the **** .
My fmdirzgs on fxaints are in the 'Am:-motive' for thfi foI15§%*ii1£,o "
o ~~~~~ VREASON3 5:_.f~Po:i"fnt__ Nos. 1 & 2:- Both these points are stretch. As could be gathered from the ooxfioplaifizfioated 6.9.1999 filed by the: Police Inspector, 'V V' " Moxket Police Station, Bangalore (CW1-PW4] and A' AAiho'otatomeI1ts of all the charge-sheet witnesses and the C-..s'~--~...._ by one Mahan Ram (A5) W0rkj11g_..._jn Doordarshan Kendra for the purpose:
preparing duplicates thereof. He informed the complainant that 1 cassettes were prepared. '_ 1,at.; Corporation situate Bangalore City* 'by i;I'.'3x'1i]g f eleetr9r.iie equipments, to ear'nV..1_ViVt:o_I;ey " by é_'V:d'i?st1'iv§)12tjng them to the ' ((2) 011 the baa:s.:'_ef eeiiiplaint, the against the "e§;§1e:'S for the offences s'e'ct--i'-.3113 63 and 65 of the Ae.t},€w Section 379 11%: and also ' :,mde1~eaaSeét:5n«--e% §4'1(2) r/w 102 of Cz'.P.C in L Ne.,1 9;7/79 and issued FIR " accord' on the morning of 6.9.1999. ;c1;«eea1::%;::~::w.g the investigation, it was found that V. Ram (A5) who was then Deputy g_Ijai41*ect0r of Doordarshan Kendra' at Bangalore took away the 5 original video ' cassettes, pertaining to Dasara Mahotsava beiongng to Doordarshan fiem its library, gave the same to accused No.1 Murali fdr c_____§":r-.------./-
' Section 409 of {6} preparing duplicates of them at Swastik Corporatien belonging to accused Nos.3 and 4 with the assistance of A2, an empIoyee*.of the 'said Swastik Corporation and A. V. the said police submitted cmqorgev 4. 4' against all the aceusedjlos. }_.*"to*-- fei* vthe. " 'V ofiences punishable 3? T 65 of' the Copy Rightvépaot-._andd:2s1Sovo' After sub:11'is_sio11<'o1"=. " " V elzeet, the said ease f£;Q'? }be:"'Ve'.fe§'e£ered as CC 310.8159/cam{the_e1e'deoxideAe%1:1:e learned IV the accused :azt§sd,ed1e%eit3'ea; f<§rl'fi'if.3%ieV--.:é:asid*:.§offences. The trial of t--,he'j;eaé.e"mr:;1's"'r1ot'oo*n1ii1enced till' 2006 i. e., *--everv1V""a§§t_:.e1fe, "of more than 5 years.
'A 'V..'§herefefe,'A' No.5»Mo11az1 Ram filed 'No. 1888/06 before this Ceurt seeking di;ectiofi""to the trial Court to expedite the H or the said case. While disposing of the 'a"."Saic_i"'13etition by its order dated 18.4.2006, " ttiis Court directed the learned ACMM'1:o :3 dispose of the case within 3 months.' However,' since the trial could not be '"
10
accused, the learned ACMM passed '''----the impugned judgment and order of dated 27.9.2006 acquitting all Nos.1 to 5 the::ei11 of all the said..o.£}'Te';fzee*s; "
correctness of the samev';ieV 'oi1.*3He11ged'_.:
revision petition. ..= ..
6. sm«:. Diwakar, mnede for respondent Nos.3 the leamea Counselfor No.5) and also ' Counsel for respondent reliance on the decisions o_f"£~I{;n_;'{31e% S2.1_j;)rg:1I1e_' Court in
1. 1028 (Raiendra Kama:
~ o Bitara.-ng 'Panda Vs. Uttam) . 1142 (M13. J.K. International '».._V3'.'-.Bxi:at.¢, Govt. of NC'? of Delhi) " o d Q66 SC 911 (Thakur Ram Vs. state of mam-1 V' 'V~Idf'efro11gly contended that the _r_cvisiona1 powers of this A' Court under Section 397 of Cr.P.C. are very limited and u the same, shall have to be exercised sparingly and with (__'"__('\__.'__./-o 11 care and caution onty where there are strong gogifids to juetlfy Interference Wlth the judment Wei' acquittal and therefore; since no such are made out in this revision,;'t1ie" impugned ghtdgéneiat 7 and order of acquittal' Vcarnrtot Relying on the same dechisierte they*« that the petitioner herein, " neither the izxformant nor.' J cannot rnairltajn the ehallellghg the cerreotnese and order of _ 7.' 'ebove contentions of the learned Vhhreependent Nos.2 to 6, Smt. Anuradha, Ceunsel for the revision petitioner, placing the two decisions of I~€[o11'!31e Supreme Court; in t1"'1e easee of Akalu Ahir 8» Others Vs. Rwndea Ram in AIR 1973 see (Criminal) 903 and K. ' eatzdurangan Eta, Vs. 8.8.8. Velusamy as Another reported in am 2003 SC 3318 strongly contended that .»-4:-\v-\...--~\_' 32 CW.12 who had been the Director of Doordarshan Kendra, Bangalore, being the material wimessV.i_eif'i~the prosecution has every right to "
revision petitien and therefore, oann.ot"t;ei'_'_tei*n1eci ask " a private person or stranger hséwing no 'to bring to the notice of the and V L' iilegalitiee coxnmitted, fpy flieieernegi ism czizrnig the proceedings in the 9.533% in passing the impugned vV";$gicqnitt,a1 which resulted :ff_; shew furtlier contended that s:ii1ee.{fiis_Qo:urt'_s13G mom powers of revision, it has to eogi1ifi',;f:111'ee.iVi'oi"i11ega1ities and irregularities eoinnftitted 'by leerned ACMM and revision petitioner iesponsible ofiieer of Doordarshan and also ,;:§ei« of«""'_the'eharge«sheet 'WitI1€SS6S has stieeessfully dféiwnwiheiii attention of this Court towards the said 'iiiegalifies and irregularities and therefore,' this Court to consider and examine the correctness of the V' "impugned judgment and order of acquittal. ' = by \§iitx1esseAe"' 13
8. As. to the mamtainability of the present petition Sx'i.A.V. Rainakrishna, the learned ~ Government Pleader representing: the 18?' ':*et3§ej1';'£:ie1*itV it "
State fairly submitted that committed error in law i;r;;l_ framing vciefeetitrefvsh.arge = i' against the accused for = aiso material i1TCgIJlaI'i¥;i€8V eeereive steps in securing the presence ehaigegslteetllwimesses by issuing 1101:; tlletu. He also further a learned ACMM committed serious Keiirer' it; " hailable warrants without 7 menfiemné the aaiiount of bond to be executed .4.1r..r.1.:' ' at where. they were issued and the endorsement of the police that the were executed by Way of affixmre 'ef the s'am;e to the residential premises of the witnesses. submitted that the learned ACMM committed iiftxtetller serious error in not issuing non.-bailable C-~.C""v~\,--\, 1»-1 W3I"'1"'a11tS- to any of the witnesses viz, CW3? to and in not re-issuing 11011-bailablc Warrants agaizijsfi and PW4 who were material official witne'éseS., '=34.«¥'1ii1$ submitting so, 116 further subngittfld. ' ' judgment and order of "
Hregulaflfies and i11ega1ities%:'}:'Ea;r;d '"Siai 11e i$ liable to be set asidag
9. On careful pQ.;~:_iS-231 arder Sllfiéf; in the: said @336 1:116 following could :b;:Tvno.ti§:*:§:1:V; V' K i7.Q'5.06-- of the case was to be c0ii1I1ii€:1zt:éd., ~,:ioiu11'e of the C-Ws.1 to 10 'Vsu1nu1{$r1e€:IVVv___§5;a.s present and therefore, the . Warrants to CW3? to 10 (withaut = therein the amount of bond] and s11n1:11:f§ens to CW1 were ordered.
" 3.3.5.06 :Bail-able Warrants (BWSJ issued to CVfs.3 and 4 were returned unexecuted with 6-11dorse111ent as: "could not be traced"
.----.f""'W-»--\_--
§:0..2Q.6. i!@Q€>';
I5 and therefore, their examination was ordered to be dropped.
26.5.06 : BWS issued against CW5 returrmcl with the same endorsemeI1t;'_:"thé3§_v:-
"he was not traced" and 1'.h6I'€I:Q1i€;.. 4_ €X£iI11i1"lé1£i0I1 was also dropg:e&;*- Ll cws.11 to 13 and Bws to;"CW5_. 2~ ¢1vs..6rr to 10 were erdared.
6.6.06 : The police reperfcd E113: CWs.6 to 10 had ~--vé;cat%:d ;.;f:;1€£"--tI1-ércfcre, their exa311;inatioI1 Carin; :6 be ' ---- 7.6.o6_ 1;iif;:c§ and ss to CW5. 'ii7ar;j§"Kd1_'c£:é:r€d the case was 3'?£3°i35"n:ieid the said latter we 'me to cws. 14 to 19 Wer§év'r{e:turn€:d_ case was adjourned " BWS to CWs.11 to 19 were ordered ._ "'._a_n¢:1' f'?:"+"<}j.f.{i;':é'V Inspector of Market RS. was "-dire;:*Ltc:~d--"'"to depute and f3X6CL1t(i' the same. (....S"""-'-/"'\ lé 331.06/4.7.06 : BWS issued against CWs.11 to 19 were returned unexeeuted. Therefore, BWS were ordered to CWs.11 to 19.
18.7.06 : CW. 13 was examined as PW. A his further examinati011--'m~chief deferred.' Meal £0 4 were,..;11_arkeed."'(§§A{.'i'4-- 2 was examined as ?W.:2, CW. 17.x%i§I5;s"'pre-$e:1{;~~ A A' 19.7.06 : The trial ncfit ' and therefore, PW.2 and w*ere:vbe:.i11d over and t11e'i "ease"AV gxfae .,gi;c*£.jourr1eAc1VA to 20.7.2006. " % " " "
: as
PW3; _VPfi{'.;_wé§.e exaemea.
V that CW.11 eeulci
netbee.traeed".eL1f";3nd CW12 (the pCtitiO11€1' ,31e;1feiri)"' We.S~by theI1 retired. Exaniination of 1.1x **** 'dropped and BWS against .Vews..e1e2j. 3.5, 16', 18 and 19 and Summons to 5;r;oe#A22 were ordered.
23.i_7.06:1aws against cw-5.12, 15, 16, 13 to ' " were ordered to be re issued with a ¢....S\'f'\./"
-17 direction to the Police Instpector of Market R8. to entrust service of the said Walrants to a special polieemall.
16.8.06 : CW.1 was examined in 4' PW.-4.
21.8.06 : BW against CWS.12, 15, 16 and 18 to 21 were oreie1fed.'~ 0 28.8.06 : Police 1°eported- the of CWs.12, 16' be "traced out as they were-1' _.~T11e;'e:bre, their exa1"nir;a?i§);z_ 0 However .0 andél were ordereci.
- : P_e01lr;e'«.."~i'eported that BWS were .. 'Served A ye}.-' of communication against am} i°W.4 in their house as the said' 0' 0* were absent. Therefere, NEWS ' 'were: 'I.e15de1'ed to be issued against CW 21 and uP!.§'4.0 22.9.06 : The BW against PW.4 W33 returned with an endorsement that was served by Way of afflxture and BW issued (-._.S--"*"*\,..-.
18 against CW.1 was returned. Evidence for the prosecution closed on the ground that there' was direction by-thie Court to dispose Vjel J case before 28.9.%.
on 27.9.05 the learned Aemxa" ee:¢a9ug% the impugned judgment of aegjuittai. *
10. On Careful pemsal above' in the said case before 'found from the order sheet foIf_:ee.,<_:h the date of eommenceelegfi of passing of impugned» quite clear that the ieamed ACMM vvies'u:eclVv to witnesses without mentioninfi fl1_e*ein.ount of bond to be executed
- by respeefive 'witriesses; he accepted the execution of 1_eavi11g the information in the resi.§iei1ces' Witnesses as to the BWS or by Way of ".affixture" or the same to their residential premises and Enid' ' not take coercive steps in securing the ' atfienciazace of the Witnesses by issuing NEWS against r"""'r"-5""'\#----..
I9 them. This procedure' adopted by the learned ACMM, cannot be sustained in law. Furthermore, after the{»SWs were retumed unexecuted with endorsement, e-
"witness left the address", "the witness Hr'eti1fed_t.:'~ftf0Ii1' h service" and "witness not u1'aceahie";« it was' bounden duty of the 1eaI*I1e€1_ to against such witnesses and thereby take eoefchje steps against them in seemézig tliifiilj V?i?Lt43fl,C{£3«T;C6. When the wamants were not retnJfx1ed'-j~oI*-.retuiied"'i:'11executed with the said e1:c1:by upbiice, the learned ACMM zeught' from the concerned Sr. }3'oIiee,_ "«--..eafise for EDI]-I'6t'LlI'I"1 02' the or t11ei.1ffet111*t1 without execution and he ought V" to .h.'a'».re"" coercive steps even against the erring could be seen from the order-sheets V Vt . for eeverégl c';-Extes of hearing, the learned ACMM dropped K 'V '- --.th-es ..e:-zafninatiorl of material Witnesses even Without
--' iéssfigifig against them NBWS in a hurried manner 03:1 the gfeund that he was to conclude the trial of the case and TM o?o dispose of the same within the time stipulated by thiS Court.
1 1. It is observed by this Court at _ of its judgment in the C2133 of state 9'3. x Devaiah and Another rcported:=._i11 upon by the learned HCQP Vi*:=::1j1'ese:V1§ii11g .,_1;h6§ respondent --- State as urzderzi « "7. W718}? or-Ice he has no discretion {(1 of a wimessfupag wlz.-fin: 'been issued as ' obse;*iééf§§_"i:{A:;#ij*$;l}: :§'t'§t'.' ;:z;:aga~.4:an (AIR 1933 Pa! z_l9.«l).._T1*::§"'t}ic;:':.¥azd'.V¢£f;$e; fi:eV.--qfz:eStiorz was whether, §tfhe2:'o};飧é.;h§§' were issued uznder Scaction 2~§§ifi.V_(42)of£h§.é Court had discreficm ta , _ - refizsé Ia_:¢0i2z%vpeI .'atté}1darzce ofthe wfmess on whom * _ iwadlgeerivismed ..
_ it is cxbserved as fznllows: "Having oflce iéS{;7t::d 'A'T:='${1mI11ons to secure attendance of w_itr1e$§ses, it was the duty of the Magistrate to iiaire enquired imo the cause of non-service or mm-return of summons and to have taken (_____{\__,",_,-
22 the preseeution examined PWs.1 and 2 the ease'--..was adjeumed. On the adjoumed date, the were issued to four (if the CWS were retmneri ujxfisertfefit V' and the learned Magistrate didvfiet' ' g1fa:1t.; made on behalf of the p2feseeutio3:1A fer precifieet the witnesses. He treated tiie:'e-xaxnm" atiee' of said witnesses as closed paseetif .er~der of veceuittal on the said date only." t5f1eSe'._'jfé;ets this Court made Vt1i'e"t'e.';:2::'::fisze set aside the order at"
acquittal matter to the Trial C013}.'t for rresntria1.tt n t e tn t;'e.e,....__Case of State 4:)' Karnataka Vs. ehrezzcggeeppaffiporzed in 1996(4) cams 247 another deeisiefi upon by the learned HCGP the facts 7_'we1*e:.. 13.1.1989 the summons issued to ":tf"eQVmg:-1ai11ant's Witness was not returned and therefore, V' the leamed Trial Court closed the evidence and recorded the statement of the accused 1;/3 313 of Cr.P.C en C--("'-'g_..\___, 24 Court with C2 direction to the leamed_.___ Magistrate to issue fresh witness summons. the witnesses whom the prosecution pursue the matter, 3" the witr1essee""de czttertd in spite ofserviee efssummotts, coercive steps against ther'n'az=ftci't~eeeeLre *6.' presence. Afier «tfte V witnesses, the learned '_ mite. hear the arguments ef._b_oth.the';§ef.rttes andbiiepose of the case afiésh %g;:¢orea;:¢et with law. Both the g::2~ec;e;z to appear in the Trial Cc§1.£f£}:jioft I996. :_"()ri'irzi;-«application to be flied before the " - » V the learned Megretraté bail te him on rzece:;sarg;"coi:z;z_tti:;{i;s. Appeal allowed. ' fifialllilliflg the procedure adopted by the .1eem'e<i present case in the light of the above obseiveitfiohiis 01' this Court in the said two decisions, I V' "'*of the considered opiriion, that the learned ACMM V' eomtnitted gave error as observed by me supra in not i' issuing the bafleble warrants merxtioning therein the C'£M"\é' 0??
defective charge against all the accused therein and 'proceeded with the trial. Therefore, as rightly submitted by the learned Counsel for the petitioner and V.2£3:ec..VtI1e ' learned; HCGP, for this reason alone law.
16. In the C356 of Vs. Uttam reported in AIR 1028,: 01' 'V the decisions relied upen 'leemed C'3etu"iee1 for the respondents 2 and fipex Court has observed at paragzfapiz Np._6 as 1;1rj2j<:1e_1_f__f' "6. Ijiirs e{.xerrcise cf revzeional juz'rLsci'zk:t€0e':;_shau£ci,"--' fherefiire, be exercised wifihine 'ii-fGu1"~.é:'ear'r.e?'§ of Section 397, whenever.' been mtiscarnlage of 'whaieyeré .-mcmner. Under sub- seéiionee (2?) »-- 397, there is at prohitiition. 'tr: exefezee revisiengl jurisdiction 4; agzgmst interlocutory order so that inquiry ..fW_"~'oz;f..tri.:.zl mayfireeeed without any delay. But _» the.A.e2c#r)ression 'interlocutory order' has not " ' been déefirised in the Code .......................... .. "
Silfljee tn ' that the above observations ef Hozfble ' 1VApex' :.C o:_u*!: cannot be applied to the present case v "'n.ei'11a;s.1§1uch as, it is not an 'interlocutory order' which is g--.C-\"'~----<.-~./ judgn1eI1t.; and erder of acquittal eazmot Q9 challenged in this revision but it is the final judment and order or acquittal the correctness of whieh is challenged. However, at paragaph Ne.5 of its judgsesent in the said case, it is observed by the Honfiteti Ceurt as:
'5. The very object of _ fimisdicticpn apart the éri3t1i1taI'_§'$o'urts'V Q' is to correct miscaniage_ cf misconception' of «_ fiof prccedure. "
These observations alfitefi facts of the _present caee of justice has axisepvete. procedure adopted by imiding the Uial ef the case.
Following 'these dbsehratigans, this Court has to exercise its reyisienal j{11fi.st1§etion in this case to correct the A ' ~ , misean".iage* Qfj gstice.
2 '.V iii;'%:thevVeecond of the said three decisions relied bzy"'vt,.I1e4'.1ean2ed counsels for respondents 2 and 6 jt.e:. the ease of Ms. J.K. International Vs. State, . ,...s"-------/~ 29 Govt. of N01' of mm reported in 2001 _ Horfble Supreme Court has obsetfved '* as under
'The private person' who 'is, re conduct prosecution can engage ct counsel ttb"'deI't%iéeineedfitI"iriV'the 1 Court in his met; the position if gz"p'ii_ee.te ttggrieved by iigairtst him or agaifiet etie '«h.€e"'ie interested he iflzrtgietrate and seek pen?t£ssierz':'j the prosecution by hiinselff fife the Court to consider his
--reque'ét...:v gm com thinks that the cause of wettl'ti'"'ije served better by granting the Courts would generally ' permission. Of ceurse, this wider A is limitecg to Magistrates Courts, as right of sueh private individual to it I participate in the conduct of prosecution in the Sessions Court is very much restricted and is made subject to the control of the Public Proeecuter. The limited role which 61 private person can be permitted to play for c_*_ 30 prosecution in the Sessions Court has been ._ adverted to above. All these would show an aggrieveei private person is not alaogettief to be eclipsed from the scenario crirninaz Court takes cognizq71ce""*Qf':::
ojffenees based on the repor;§_sub§3§i?ted A ;_e A' police. The reality cannez beVeii'erlook.ec€. ' the genesis in almost eases grievcmce of one pr :2/aore___£§;divi;iLaal.'t}2e;. were wronged eizcefg;~§ec1_'L'!A3g~eommittir1g offences agclizzst = Suflice to fszéiéy ___e?jsefVe;tiens of Horfbie Supreme of the learned counsel for respondent :'No.:s'2 their contention that the present 1)'r':t,itieI1er._ maintain this revision c:1_1aI'1r:-:n@v_'.»1*§g'v Vvcofzecmess of the impugzed judgnent and 2 order of a;cqjuif1':a1.
18A."-«.._I1'1 'Ease of Akatu Ahir and Others Vs. ' " " §'E«¢itrV1-§fiia:¢VI:za;11:V1":'eported in 1973 scc(c:-1,; 903 relied upon 'jieeined Counsel far the petitioner, Horfble ,_._s""'V'\"*"' 31 Supreme Court has observed at parage_§':i:«' under: _ V A _ :3, The unrestricted aoquztttai ts specifically oortferred ontyti en ' State and as private tie.
right only when the proeeettttonvv instituted on there abo subject to epeciat Eetztie Court. It is fitrtiter;'g2rovitie"dtt: Seetter; r4e9(s), Cr.P.C'., that r;o~v:tp,§ieql in a case in no proceedings r _ be entertained at the inete.rteej .of--~ who could have ap,oealed.V: S Stezte Government, therefore, .. fzatrirtg V'feeTVleg:_i__A to appeal cannot apply for of an order of acquitted. Again, on V' ' reeie'ifert,_.}~ the High Court is eacpresslyt from converting an acquittal into C! T " ..ce:;tviction. Considering the problem facing 'A Court in this case in the background of this scheme, the High Court 'when approached by e privezte party for €j.?C€7'Ci5??iTtg its power of revision from an order of acquittezl, ehoutd appropriately refrain from ("'--.''"'\---*---\.a--'\ 33 it shouid be exercised in exceptional cases' and with great care and mutton. Trials erte' not to be lightly set aside when such expose the accused persons to a jIre;3}i: - V with all its consequential " V V
19. it is further ebsenzed :£ion'zj1eA...i.S:;preme Ccurt at the same para No.8' the as the Hmvh :'»ifi remsion to set itiaii ever: at the instai§.ee.;:_bf the State 'tfuiught zippeal. but it was gm;-ea jw-ssgzrzaaion shouzcz be exercised' i§fi"~-..ee.§¢ c:eDtfiana£ cases when 5 --'£here'uis defect in the prooedyzg }€DrA--.fheI:£? 1LsV"e£"mcznifest errer on C1 point of law " .. . gnd~e¢e}§s.eauentlu there has been a flqgz'_a___¥g1f of " (Emphasis supplied Court, however; by of illustration, indicated the foltowing VT 'gcategerées of cases which would _just1_fi; the ' High Court in imterfering with at finding of acquittal in revision :
c___,__("'\_....._z*7 34
(t) Wherqthe tnlal Court has no 'try' the case, but has still acquitted accused;
(it) Where the ma: Court t£'rr<.':;t§ly-:
evidence which the produce; '_ ~ . ..
(iii) Where the' appell'Vdte"t'Ceurt" 'vieregtgly held the evide2'tCe'whiéh the trial Court ts
(iv) Wherev has been overloe_}ke'f;t.t- anti; {ettF1er)' by trial Court or by the j§p1.'?€33{1Z€"(:;'?T§i?t.'V.:§117i{i is. based or; the "c.or'npouné:ttitgV _theV..ofl°enoe which is irtvaitd urttw;
'These eettegeties were, however, merely i§§*e.§'trt;tive and it was clary'1Te' at that other ' T. '«9:fj_SimilaT nature can also be praperly A jte be of exceptionczl nature where the .E{tgh""Court can justiflczbly interfere with the critter of acquittal. In Mczhendra Pratap Singh H (supra), the position was again reviewed' and the rule laid down in the three eartter cases reajfinned. 15*: that case the reading of the judgment of the High Court made it plain that (_______'r\-----------\_g-
35 it had re-weighed the evidence fiom potnt of view and reached mferences to those of the Sessionsffuetget "eh'i every point. This Court o1ttV_..'that'.tt was not the duty cf ..£;'igh'VC?eurt_V te white deating with an ' .e7:«'z.:reuz'et=<;2rz, when the Gave:-hrnent'AVhgzeZ" 'chose:-zhflte file an appeal against hh said this Ccurg' the High Cou1'th}ze attehded laid down by this in breach of
20. of It'. Pandurangan etc., VVs.S.$.,3." Veluedsnjj' Another reported in AIR 2003 by the learned Counsei for the pe*titier_:erV;' 71%§ea_§I";:V~hf_'b'1e Supreme Court has observed at V Vt paraQ'""eph--V as under
" far as the first question as to the h "m.en'Intai11ability of the revision at the instcmce of the centptatnant is concerned, we think the said czrgurnent has only to he hated to be rejected. Under the nroviszbns of Code of Criminal Procegure, 1973. the Court has suo (....._._r-........-»»»..'_____' 42 No.2 on employee in the said Swastik _ the purpose of distributing the same ao*.o::gSt--.::eabie"
operators and thereby to earz1.1:An1o;1ey.. disclose that the said six easeettes 'Came to by * the said complainant Panes f1"gspeetoi'_ 1'Idro the possession of A.1 caoae to be submitted to tt1eAtCom*tA.a1(j1~%g .%€..i'i'i>ii;1.,{:fqv"I:)gI1C21E11"l€;il3121. which was tiie panehas vie, CWe.2 and and Ramarma.
The pafiehas fall in line with the statement -CW'1_, f11e'::"'¢oiVnplainant Police _1n-s13eeto1'. This__ieomgJlai1iamt deposed the some in his as PW4 recorded during the triai of tfie 'V records further disclose that pursuant to statement given by accused No.1 Murali, iiiirestigathlg Ofiieer seized, on the very next date d on 6.9.1999 at about 8.30 a.131. from the premises Q' of Sweetie' Corporation belonging to accused Nos.3 and (___'----...r-\_,,.w-r ':43 4, under a seiz"Lu'e'pa1"2chana:11a in the piéeseiiee' : ' CW$.4 and 5 as panchas, five o1r£@'1.1a1 V' and other incrilninating articles 'tast"V_ACLR, «.A:41:tii,c$' mixture ._etc., and the said cam'"e.__te 13e:'v_t'e'1:§§5'i*teCVi to 'V the Cowst by subn3ittivng_P. A' 'Aece:>19§<:ii11g to the prosecution all the on the said date from the t were used by accused the duplicates of erigi11a1 e_td1'et1 fi'01::1 the Iibmjry of Doordatehézfi by accused No.5 and which were ¢g§sre11.to§.accu'sed No.1. 'ifi1e,vA"II1§Iestigation papers further disclose that oil. accused No.1 Murali took the V .1nvee'tigat§1gOfiieer and also CWs.11 and 12, the w 'filjiehas to a place near Ramana Maharshi Devasthana It '13efiga1ore--Be2Ia1'y Road which is near the Bangalore "*'::Dfcerdarshan Kendra and showed a place there in the presence of the said panchas saying that it was at that (_________r\r-...',....--..r 45
30. The statement of CW.12 Appa Rae Wh{) is petitioner herein, recorded by the 1.0 "
ixlvestigaflon reveals that the accused No.5 said 5 originai eassettes from E?'é§f';3~«Sncit. Asst. Librarian' in the Office of Bangalore, on 4.9.1999. 'FI:1e' Seen: V deposed as PW .3 to #39. 'i9C)9"e4cc1::sed No.5 teak through hera cassettes from the 1ibP3_§f3(~«'V§)¥lt he did not remrn the statement of CW.12 Appa ms, on 7.9.1999 FW.4 Invesfigeteig five cassettes and he identified theii5._ as~the 'se§e original cassettes beiengng 1;e'I3e{§z°&£t:"sI'ian Iiefidfa, Bangaiore, which were missing I';:em 4.9.1999. His statement further reveals t1_1at!E*1e verified the said cassettes with the said " " 'T I depiieate cassettes that were seized from the e.:13c:2$;see'?sien ef accused No.1 and feuad that the said six c""':"fi'$---'\./ 9:6 cassettes were duplicates of the: said" five {:_r_ig*nai cassettes beloiggng to Doordarshan Kendra. --f Q
31.' The statements cf Iibrariaiis in the Oflice of Bangalara, who have !3e:en.L::>§;;g_z11i1"i'e:i_ 'i*espe¢tiizc}yVas'§ L. 1 and '3, disclose that tI'1'ii§.i_:_=.{._<:::p.se'<t'1" Vvftook five O1"*ig'na2 cassettes _'tiT_1e 4.9.1999 and entries were made 'réglster and the signature _ of }2ie'3;3"1'ned in the said reflster. T -{iii 32fiii'if11e 'or Section 37(1) & (3) 01" the _ '~1Q§_7,.mad as under:
~ '..';._f;$"::'(;:;.i"Ex_;.rex'37 broadcasting arginazatian shall _ v;?§;"""speciai right to be laiovm as "braéaiéast 1'epr0ducti0n right" in respect of " ivt;f_.4§~ broadcasts. "
I "37(3) During the continuance $91" a broadcast reproduction right in relation to any broadcast, any person Whc, without the «r""-~r-""'"""\-w"-' 4,?
110631156: of the owner of the right does any of the fallowing acts of broadcast 'and or substantial part tI1ereof,- J E d (3.) re-broadcasts the broadcast; or (1)) causes the broadcast tc; 13.c§_11ea_1*'d"'01{ by the public on payment a113{¢.Iiat¢geS;- Cr Vi' AA ((3) makes any sound _ rccdrding 01f.v--'V-dr:dSL1é;'e11 recording of the broadc--a§$"£;Vor V. 'V S
(d)n:1akcs any :feprod;1cfijo1:"'Qf s:iCh-._,S0.3ind recording or 51feGjG1Fdi..I1;g.: 'where such initial recqrding was ffivi;th§§':i.tVv.!§c:ence or, where it 1i£§eI;Séd, -f<A5f not enm$ag€d »
(e) séiis or offers for duch idsélcr-..:;V{);fA3'11ire;"'::1:;3?. such sound I'€':COI'diI1g oiwfisuél'r;§Céi1'd§:1g:"rt:fcrz'ed to in clause (C) or _c1aL1's"r3..('},._', X % A s1_1'i:1"j'ec:t___1;(3v provisions of Section 39, be ta have infringed broadcast
2 right."
'?ficrefo1*c, it is clear from the abcve provisions ~3§~ctfibz1 37 of Copyright Act, 1957, that Deordarshan 22%; 'dtdroadcast right in respect of the said original five c---..(\------~«----»--
4 8 video cassettes that were preparoci by it a;1d making any sound 1'6C€)ifdiI1g___0I' visual recording of the same would attract the penal provisions of Section 37(3) of th-s:__said Act. Since enough material is placed on prosecution 'to establish that by making usafof original five cassettes given Murali the accused Nos.2 to 4 pfoparod, of A1, sound recording and 'viéaal recofdifig oi';4ttio said cassettes and t1'1er€!:'+3:_A aoolgscd 510%. E to 5 infringed broadcast I7i¢h1i.:Vvj3:S.V~~{iCfiHCd under Section 37(:o)oo paiaslaabie ~~i..I,1Ti.;£iC1' Section 53 of the said Aééf 2Xot,' 1957. Section 53 of the said Act 1-eads _ "as. oficrgca Ag; of copyright or other rights" 1¢or1fm~ee:a,_by.a this Act. Arzyfigsfson =..k:no_1_,_o:':tgly infringes or abets V of «-
°(z;t)" a work, or
(b) o;ne;f Eight conferred by this Act, axoafpta right oonfarred by section 53A, H H " A. shallvbe punishable with impn'sonmem' for <..._C"'|"'--~\Z..,_, 49 C1 terms which shall 120: be less ~ V. months but which may extend it} years and with fine whiqh>shal1€*not--.'ib e,ZesS, % than fifty thousand mpee$A'bAI§,£ ":_a;f1i¢h. ' 5 extend to t1uclakhnepeés5"'--._ ' ' ' A Since 'the accused are 11$ " Cm:11111ittcd ixxfiingcxnent of '13VIA'f.)zé'£;{L1('3£;';S1C;;_ '3%€f3{f(3v C1't3Qti0{1 right' as defined unciwseczion V«3?:{»1) qiimé %<:opyr1g1at Act, 1957, they have4_V'é§%c(&{:{:fi:§: £0 vjjiiiiiéhed under Section 6wmmm 'Vi-:.¢k:t:§€}n 65 of the said Act provides as .....
_ fomession of plates for purpose of iqffinging copies.
Afzyfierson who knowingly makes, or has in " possessien, any pzate for the pwpase of making infiirtging copies of any work in which copyright subsésts shall be punishable with imprisonment which may extend to two years and shall case be liable to fine. "
c--!'\~---~\...
53 been eharge~sheeted. This being so, the matfiér ' to be remanded to the Trial Courtfer» e 4'
38. Placing reiianee on the deeisiee" gof ._ Court in the case of V.=s, 'V V reported in AIR 1965 91.1','," for respondent N032 and that even if swome the procedure adopted by Same cannot be held to be inteffefence by this Court in this revieisfi if the retrial is ordered, the 8.{:C11SCdé ' sséoulé Abe "'i3ut to meat hardship and"
t;1'1erefdi"e3.--.'i;he'e-- yreseriftevision deserves to be dismissed. Hoiifbiee' has qbserved at paragaph 9 as unéei-'..:_ _ z -firfhe Revzisrlonal Court eught not to with ' . interfere in such circumstances unless there were strong greunds to justify interference. It weuld be at terrible hamssrnent tea the accused persons new to be called upon to face 61 flesh triat right fium the fg' 55 accused Nos. 1 to 5, appropriate charges for offences and then proceed to record the es:*ide;i.zee'wl' such cf the rernairling witnesses listed 'Charge; ._ sheet as would be proposed and also further examine I?'W._.__4 L. of the mamer in accordance aeeyfipeditieuslye as possible, lmving rega1*{iz':e"£Q »o:1;¢;%%jo:a eases pending an his file. '
41. All Aeeieéeilw in the said case who are respectively Reepefidefiit to 6 in this Revision ?et:i_1;ion vo1unt;:i:tfi3%' a1:§pear before the learned {V wimout any notice or summons.
gent bail to all the accused VVv3t1j.erei11, ogi .:fieif"epp1ieatie11s, to be filed before him, .Su.¥3jee..tt0s_11eh reasonable conditions as he deems fit. C--C.$"$.---'\¢ 56 ' The recards to be transmitted to forthwith so as to rt:ac1"1 the .Coi;rt_v.§j'rL [of 'bi3fc}rc ' 20.10.2008.
A u Judge NG*