Delhi District Court
State vs . Kundan Singh Bisht Etc. on 26 February, 2009
IN THE COURT OF SH. DIG VINAY SINGH, LD. ACMM03 (EOW) ROHINI
COURTS, DELHI
State VS. Kundan Singh Bisht etc.
FIR no. 1302/05
U/S: 52A/63/68A Copyright Act
PS : Kalkaji (EOW)
26/02/2009
ORDER ON CHARGE Pre: Ld. APP for State Sh. Pradeep Kumar Gangwar with IO SI Gurnam Singh.
All four accused are present on bail with counsel Sh. D K Mishra. (1) Ld. Counsel for accused states that no recovery whatsoever has been effected from the accused and all the four accused persons have been falsely implicated in this case therefore no charge is made out. He also argues that there is no documents filed with the chargesheet to show that any of the articles recovered from the two shops are infringed articles or its ownership/authorship vest with somebody else. It is claimed that even there is a document dated 08052006 on record which is a searchcumnon recovery memo which shows that there was no recovery effected. It is claimed that all the four accused are entitled for discharge on this ground. (2) Brief facts of this case are that prosecution claims that on 30122005 a secret information was received that at shop no. 103/C and shop no. 104/D, first floor, Sidharth Building, Nehru Place, New Delhi Order on Charge /State Vs. Kundan Singh Bisht/ FIR no. 1302/05 PS: Kalkaji ( EOW) page 1 of 6 dtd. 260209 infringed/pirated software, games, VCD, DVD, MP3, movies/songs, computer software etc. were being sold. A raiding party was arranged and raid was conducted. One Jasvinder Sharma, representative of Indian Music Industry was joined as a witness. From shop no. 103/C, first floor, Sidharth Building, Nehru Place, New Delhi following infringed articles were recovered: (1) A total of 462 pirated computer software including titles Business Letter 2005, Window 2003 RNT, Driver, Movies Studio 2006, Installer Net Suit etc. (2) 89 pirated games DVDs/CDs including titles Harry Potter, Under Ground, Call of Duty etc. (3) 57 pirated MP3 of various Hindi films, song titles including Kall, Zehar, Josh etc. (4) One Plastic cover album of various computers programming software (index).
In this shop, accused Kundan Singh Bisht was found present at the sale counter of shop where infringed articles were displayed for sale/hire. During investigation, it was learnt that this shop was taken on rent by another accused Saurabh Loomba vide license agreement dated 21032005 and actually this shop was run by Saurabh Loomba where accused Kundan Singh Bisht was merely an employee selling infringed articles. (3) From another shop no. 104/D, first floor, Sidharth Building, Nehru Place, New Delhi following infringed articles were recovered: (1) A total of 408 pirated computer software including titles DVD Tools 2005, Window XP 2004/5, Office 2003/4, PEDI, Internet Solutions, Suit 2005, Order on Charge /State Vs. Kundan Singh Bisht/ FIR no. 1302/05 PS: Kalkaji ( EOW) page 2 of 6 dtd. 260209 Windows 98 (Boot), Java Soft 2003, Window XPHindi, Oracle, Abode 2004, Auto Cad 2006 etc. (2) A total 120 pirated VCDs of various Hindi/English movies including titles Harry Potter, Kabhi Khushi Kabhi Gum, Charas etc. (3) A total of 17 MP3 pirated of various film songs including titles Gadar, Lagan, Mohabattein etc. (4) One Plastic cover album containing different programming computer software (index).
Accused Roshan Lal Kamde was physically present at the sale counter of the shop where infringed articles were displayed for sale/hire. During interrogation, it was learnt that this shop no. 104/D was taken on rent by fourth accused Bharatveer Singh vide rent agreement dated 21072005 and accused Roshan Lal Kamde was an employee of Bharatveer Singh. (4) The case of the prosecution is that recovery has been effected from two shops where two accused Kundan Singh Bisht and Roshan Lal Kamde were physically present at the sale counter and the other two accused Saurabh Loomba and Bharatveer Singh were actually running that shop under rent/license by keeping the first two accused as their employee. Recovery has been effected from the two shops. The argument raised by Ld. Counsel for accused are questions of facts which requires evidence and cannot be prejudged without taking evidence. So far as memo dated 0805 2006 is concerned, on that day no recovery was effected but recovery was effected earlier on 30122005 from the shops in question. (5) Law regarding considerations at the stage of charge is wellsettled Order on Charge /State Vs. Kundan Singh Bisht/ FIR no. 1302/05 PS: Kalkaji ( EOW) page 3 of 6 dtd. 260209 now. The court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against accused has been made out. It is held that when the material placed before the court discloses great suspicion against the accused which has not been properly explained the court will be justified in framing charge. The judge should not make a roving inquiry into the pros and cons of the matter and weigh the evidence is if he was conducting a trial. If on the basis of materials on record a court could come to the conclusion that commission of the offence is a provable consequence, a case of framing of charge exists. To put it differently, if the courts were to think that the accused might have committed the offence it can frame a charge , though for conviction the conclusion is required to be that the accused has committed the offence. At the stage of framing of a charge probative value of the materials on record cannot be gone into, the material brought on record by the prosecution has to be accepted as true at that stage. The truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not Order on Charge /State Vs. Kundan Singh Bisht/ FIR no. 1302/05 PS: Kalkaji ( EOW) page 4 of 6 dtd. 260209 exactly to be applied at this stage of deciding the matter under S. 227 or S. 228 of the code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. But at the initial stage if their is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. While deciding the question of framing of charge in a criminal case, the court is not to apply exactly the standard and test which it finally applies for determining the Guilt or otherwise. This being the initial stage of the trial, the court is not supposed to decide whether the materials collected by the investigating agency provides sufficient ground for conviction of the accused or whether the trial is sure to culminate in his conviction. What is required to be seen is whether there is strong suspicion which may lead to the court to think that there is ground for presuming that the accused has committed an offence. Reliance placed on the cases of Union of India vs. Prafulla Kumar AI R 1979 Supreme Court 366 :
State of Maharashtra and others vs. Som State of Bihar v.
Nath Thapa and others JT 1996 (4) SC 615 ;
Ramesh Singh, AI R 1977 S C. 2018: (1 977 CRI LJ 1606) ; Umar
Abdula Sakoor Sorathia vs. Intelligence officer narcotic control bureau JT 1999 (5) SC 394 ; Kallu Mal Gupta vs. State 2000 I AD Delhi
107.
Order on Charge /State Vs. Kundan Singh Bisht/ FIR no. 1302/05 PS: Kalkaji ( EOW) page 5 of 6 dtd. 260209 (6) Law is equally well settled that ownership by the author of the pirated articles are not required for the purpose of trial for offence u/s 63/68A Copyright Act. It was so held in the case of State of Andhra Pradesh Vs. Nagoti Venkataramana IV(1996) CCR 42 (SC).
(7) From the material available, prima facie it is clear that infringed/pirated articles, which were recovered from the two shops, were being displayed for sale/hire/rent etc. and it amounts to offence u/s 63 Copyright Act. Infringed articles which were recovered were not containing mandatory particulars as are required u/s 52A of Copyright Act and therefore offence u/s 68A Copyright Act also prima facie has been committed. Accordingly, prima facie there are sufficient material to frame charge u/s 63 and 68A Copyright Act. Let charge be framed against all the accused for the offence u/s 63 and 68A Copyright Act. Charges framed separately to which accused persons claim trial. Put up for PE on 1303 2009.
(DIG VINAY SINGH) ACMM03(EOW) ROHINI / DELHI / 26/02/2009 Order on Charge /State Vs. Kundan Singh Bisht/ FIR no. 1302/05 PS: Kalkaji ( EOW) page 6 of 6 dtd. 260209