Gujarat High Court
Cinemaster vs State on 7 May, 2010
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
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SCA/5271/2001 39/ 39 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5271 of 2001
WITH
SPECIAL
CIVIL APPLICATION No. 12738 of 2001
WITH
SPECIAL
CIVIL APPLICATION No. 17783 of 2003
WITH
SPECIAL
CIVIL APPLICATION No. 16062 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ Sd/-
===================================
1. Whether Reporters of Local Papers may be allowed to see the judgment ?
YES
2. To be referred to the Reporter or not ?
YES
3. Whether their Lordships wish to see the fair copy of the judgment ?
NO
4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
NO
5. Whether it is to be circulated to the civil judge ?
NO =================================== CINEMASTER (A DIVISION OF ASIAVISION ENTERTAINMENT PVT.LTD.) & 1 - Petitioners Versus STATE OF GUJARAT & 7 - Respondents =================================== Appearance :
1. SPECIAL CIVIL APPLICATION No. 5271 of 2001 MS SRUSHTI A THULA for Petitioners.
MR NIKUNT RAVAL, AGP for Respondent Nos.1 - 6.
MR SV RAJU for Respondent No.7.
RULE SERVED for Respondent No.8.
2. SPECIAL CIVIL APPLICATION No. 12738 of 2001 MR BM MANGUKIYA for Petitioners.
MR NIKUNT RAVAL, AGP for Respondent Nos.1 - 5.
MR TUSHAR MEHTA for Respondent No.7-8.
RULE SERVED for Respondent Nos.6.
3. SPECIAL CIVIL APPLICATION No. 17783 of 2003 MR BM MANGUKIYA for Petitioners.
MR NIKUNT RAVAL, AGP for Respondent Nos.1 - 4.
MR UTPAL M PANCHAL for Respondent No.5.
4. SPECIAL CIVIL APPLICATION No. 16062 of 2004 MR UTPAL M PANCHAL for Petitioners.
MR NIKUNT RAVAL, AGP for Respondent Nos.1 5.
=================================== CORAM :
HONOURABLE MR.JUSTICE K.A.PUJ Date : 07/05/2010 COMMON CAV JUDGMENT Since all these petitions are inter-connected and the issues involved therein are in relation to the conflicting interests of the parties and since they are heard together, the same are being disposed of by this common judgment and order.
Special Civil Application No.5271 of 2001 is filed by Cine Master, a Division of Asia Vision Entertainment Private Limited and another praying for direction to the respondent authorities to exercise the power of seizure whenever any infringement of right is brought to their notice by seizing all the equipments including the Projectors, Television Sets, Amplifiers, speakers, Video Cassette / Video CD / DVD Players etc. used for infringement of copy rights by unauthorized public exhibition of films on Video Cassettes / public video CDs / DVDs without obtaining any license or written permission from the owner of the copyright. The petitioners have also prayed for the direction to the respondent authorities not to treat the offence of infringement of copyright as a bailable offence but to treat the same to be non-bailable offence. The petitioners have also prayed for the direction to the respondent authorities not to require the petitioners to pay any amount for the purpose of engaging the staff for conducting a raid and to declare the said action to be illegal, arbitrary and irrational.
This Court has admitted the petition and ad-interim relief was granted in terms of paragraph 6 (a) of the petition on 13.07.2001.
During the pendency of this petition, Civil Application No.570 of 2002 was filed by one Mr. Savalram Punamji Mali for impleading him as party respondent and the said Civil Application was granted by this Court on 30.11.2002 and the said applicant was permitted to be joined as respondent No.7 in the said petition. Thereafter, one more Civil Application No.951 of 2002 was filed by Gujarat Video Owners Association to be joined as party respondent in the main petition and the same was disposed of by this Court on 28.10.2009 observing therein that it would not be proper for the Court to entertain the said application after four years and accordingly, the said application was rejected.
One more Civil Application No.8669 of 2003 was filed by one Mr. Nilesh J. Patel, proprietor of Prime Lesser Cinema to be joined as party respondent and the said application was granted on 06.09.2004 permitting the said applicant to be joined as party respondent in the main petition.
Special Civil Application No.16062 of 2004 is filed by Cinemaster and another seeking direction to the State Government to issue directions to the concerned authorities to grant / renew the license only if the Video Theater Owners produce the license / certificate / written permission from the copyright owners. The petitioners have also prayed for the directions to the State Government to issue necessary direction to the Licensing Authority to verify the license from the copyright owners while granting renewal license to the Video Theater Owners and seeking further direction to them to cancel the license of the Video Theater Owners in case they are found exhibiting the Films without license / written permission under the Copyright Act.
This Court has issued notice on 21.12.2004. An order was passed on 11.02.2005 directing the State Government to place on record the steps taken for proper implementation of the Copyright Act and also the steps which are in contemplation for proper enforcement of Copyright Act with a view to see that proper actions are taken against persons who indulge in breach of provisions of Copyright Act. The petition was thereafter admitted on 09.09.2005.
Special Civil Application No.12738 of 2001 is filed by Shri Rakesh K. Dua, proprietor of R. K. Video Cinema praying for writ of prohibition against the respondent authorities restraining them from taking away or seizing the VCR, VCD Screen and furniture and fixtures etc. including other instruments from the custody of the petitioner during the raid, if any, that may be carried out at the instance of any complainant claiming to have any copy right. This Court has issued notice on 07.01.2002 for final disposal and notice as to interim relief. While issuing the notice, the Court's attention was drawn to the provisions contained in Section 64 of the Copyright Act, 1956 which confers power on the Police Authorities to seize infringing copies and all plates, used for the purpose of making infringing copies of the work, but there is no provision in the Act empowering the Police authorities to seize equipments like VCR Projector, Music system, Amplifiers, Speakers or any furniture. The petition was admitted on 19.01.2002.
During the pendency of this petition, Civil Application No.951 of 2002 was moved by Cinemaster and another, to be joined as party respondent Nos.6 & 7 in Special Civil Application No.12738 of 2001. The said application was granted by the Court on 28.10.2009 and accordingly, the said applicants were joined as party respondents in Special Civil Application No.12738 of 2001.
Special Civil Application No.17783 of 2003 is filed by Shri Nilesh J. Patel praying for the direction and/or declaration that no criminal prosecution can be launched against any person including the petitioner by any person unless and until the producer and/or assignee of the right of the producer make available copy of the film in respect of which they hold right to the public for commercial exploitation. The petitioner has also prayed for the direction to the respondent Association to make available the copy of the film in any form either Video Cassettes, CDs, Video CDs or DVDs for commercial use in the market and to see that till then, no offence shall be registered by them for the alleged infringement against any person including the petitioners. The petitioners have also prayed for the direction to the respondent authorities not to accept any complaint and/or record any criminal complaint against the petitioner and/or any Video theater Owners on the strength of the complaint made by other respondents unless and until such person satisfy the Police Officer that the said respondent and/or its agent holds the right from the concerned producer of the film and he has discharged his obligation by making available the copy of such film in any form for commercial use and exploitation.
This Court has issued notice on 22.12.2003. The Court has also permitted the petitioner to present the said petition in representative capacity and directed the petitioner to see that notice of institution of the said petition and nature of the order passed by the Court on that day, is published by the Registry at the cost of the petitioner in two newspapers, namely, Gujarat Samachar and Fulchhab.
The petition was admitted on 15.10.2004. Again notice for final disposal under Order 1, Rule 8 of the Code of Civil Procedure as well as notice as to interim relief was issued on the same day and the petitioner was directed to prepare an advertisement and to supply the same to the office. The office was further directed to publish the said advertisement in daily newspapers, namely, Gujarat Samachar and Sandesh.
Under the above circumstances, all the four petitions are taken up for final hearing.
Heard learned Advocates Ms. Srushti A. Thula, Mr. B. M. Mangukiya, Mr. Utpal M. Panchal, Mr. S.V. Raju, Mr. Tushar Mehta and learned Assistant Government Pleader Mr. Nikunt Raval for the respective parties.
In Special Civil Application No.5271 of 2001 and 16062 of 2004, petitioners are common. The petitioner No.1 is a Division of Asia Vision Entertainment Private Limited, a Company duly registered under the provisions of the Companies Act, 1956. The petitioner No.1 is a consortium of various Video Companies like Time, Gold, Net, Bombino, Indus etc. and is owning sole and exclusive commercial video rights of more than 1200 Indian films. The petitioner No.2 is a Company duly registered under the provisions of the Companies Act, 1956. The said Company undertakes the activity of preventing theft of copyright on behalf of owners of copyrights. The petitioner No.1 has authorized petitioner No.2 to ensure that its copyrights are not violated by giving a Power of Attorney to petitioner No.2.
The brief facts of the case are that Video Cinema Hall Operators at Surat have been exhibiting films in fragrant defiance and breach of the provisions of the Act, without obtaining any license and/or written permission from the owner of the copyright i.e. petitioner No.1, which is an infringement of copyright under the Act. The respondent No.1 to 6 being State authorities are duty bound to ensure that no breach is committed of the Act and while ensuring the same, the respondents are under a statutory obligation to seize the equipments used for infringement of copyright including Projectors, Television Sets, Amplifiers, speakers, Video Cassette / Video CD / DVD Players etc. used for infringement of copy rights by unauthorized public exhibition of films on Video Cassettes / public video CDs / DVDs etc. it is the statutory obligation of the respondents and their subordinate Officers to implement the mandatory provisions of the Act whenever a breach thereof is found by entering and seizing the above referred equipments and arresting the persons found responsible for violating the Act. The petitioner No.2 has brought the said violation to the notice of the respondents. The respondents are either not taking any action or are doing only lip service to the provisions of the law by merely seizing the Video Cassettes / Video CDs / DVDs. As a result, the Video Cinema Hall Operators continue to commit breach of the provisions of the Act. Immediately after such seizure of Video Cassettes / Video CDs / DVDs by exhibiting other Video Cassettes / Video CDs / DVDs, which is again without license and/or written permission from the owner of the copyrights.
The petitioners have made several representations in writing in this behalf. As a matter of fact, the respondents started implementing the law by seizing the above referred equipments whenever the breach was committed by the respondents. When the law enforcing agencies started implementing the provisions of the Act, about 73 cinema halls approached this Court by filing Special Criminal Application No.548 of 2000, inter alia, praying that police authorities have no power of seizure under Section 64 of the Act so far as the seizure of Projectors and other equipments are concerned. After having argued the matter, the Video Cinema Hall Operators withdrew the said petition which fact was recorded by this Court in order dated 30.08.2000. They withdrew the petition so as to ensure that no final judgment adverse to them is pronounced by this Court ostensibly with a view to take recourse to some so-called alternative remedy.
Video Cinema Hall Operators, however, resorted to pressure tactics by undertaking an indefinite hunger strike before the office of respondent No.2. Large scale protests and demonstrations were organized before the office of respondent No.2 and a threat of fast unto death was administered. Video Cinema Hall Operators also gave wide press publicity to their demonstrations and hunger strike with a view to bring pressure upon the respondent authorities and more particularly respondent No.2 herein. In view of the pressure tactics adopted by the Video Cinema Hall Operators, the respondent No.2 was compelled to issue another Circular under which he instructed his subordinates to seize only Video Cassettes / Video CDs / DVDs and not the equipments which enabled the Video Cinema Hall Operators to start operating again after seizure of Video Cassettes / Video CDs / DVDs which were being exhibited unauthorizedly and in breach of the provisions of the Act. The petitioners, therefore, made detailed representations on different occasions. However, no concrete steps were taken by the respondent authorities. The petitioners were shocked by the decision communicated to them by the Director General of Police in May 2001 that he would not seize the equipments even if it is found during the course of the raid being conducted that the Video Cinema Hall Operators are in fact infringing the provisions of the Act. The petitioners were also communicated that he would not give any priority for conducting the raid for infringement of copyrights, and that it would be for the petitioners to bear necessary charges for the staff provided during the raid in advance. They have approached this Court with a request to hold that the respondents have no jurisdiction, competence, authority or power to require the petitioners to pay any amount as implementation of law is an obligation cast upon the respondent authorities and for discharging such an obligation, no amount is payable by a person informing the authorities about the infringement of law.
Even in Special Civil Application No.16062 of 2004, the grievance of the petitioners was that the respondents are required to discharge their statutory obligations of implementing and ensuring implementation of the Copyright Act, 1957 and to see that there is no infringement of the provisions of the Copyright Act. It is, therefore, alleged that in connivance with the Video Cinema Hall Operators, who have vested interests in violating the provisions of the Act, the respondent authorities are either not taking any action or allow the persons infringing the provisions of the Act, to escape. Inspite of several attempts by the petitioners, no action is being taken by the respondents against the persons committing breach of the provisions of the Act and, therefore, they are constrained to again approach this Court by way of filing the second writ petition.
The private respondents in these two petitions are more or less the petitioners in Special Civil Application No.12738 of 2001 and 17783 of 2003. in these two petitions, the petitioners of earlier two petitions are also party respondents.
Special Civil Application No.12738 of 2001 is filed by Shri Rakesh K. Dua, proprietor of R. K. Video Cinema, Surat. He is a license Video Cinema Exhibitor in the city of Surat. His main grievance is that the respondent authorities at the instance of third parties carried out illegal raids in the premises of the petitioner and in the name of breach of Copyright Act, all articles and belongings of the petitioner were taken away by the police authorities, although under Sections 63 & 64 of the Act, illegal cassettes or film, if any, can be seized. False criminal complaints were also lodged and the petitioner and other like persons were subjected to the torture of the authorities. In these circumstances, the petitioner has approached this Court.
Special Civil Application No.17783 of 2003 is filed by Shri Nilesh J. Patel, proprietor of Prime Lesser Cinema. He challenged the action of the respondent authorities being illegal, invalid and in violation of the provisions of the Copyright Act, 1957. The contention raised in this petition is that the person who produces the film is entitled to have his copyrights protected, but the said copyrights cannot be used for extortion of money in as much as in the name of protection of rights of the copyright holders, various Agencies are moving in the market claiming that they are holding copyrights in respect of thousands of films and to exhibit the said films in the Video theaters. It is their endeavour to see that everyone has to become member of the said Company or Association and pay annual fees which is contrary to the provisions contained in the Act. The allegation of the petitioner was that under the strength of the so-called Power of Attorney or assignee of the alleged rights of few hundreds or thousand films, they file criminal complaints for the alleged infringement of the provisions of the Act and in view of the said complaints, not only the Video cassettes or CDs or DVDs are seized but the Projectors and infrastructure of the Video theaters are being seized which is contrary to the provisions of Section 64 of the Act which results into nothing but extortion of the money in as much as the owners of the Video Theaters are being authorized to become member of more than one Association so as to enable them to have license for exhibition of the films in the video theaters and are authorized to acquire rights of exhibition of the films which they never proposed and they never exhibited the films and are also authorized to acquire the rights of the exhibition of the films which are either under production or in future they may acquire. Failure to become a member will prompt them to file criminal complaints and harass the petitioner.
The petitioner has made a reference of one magazine produced by the Indian Motion Picture, namely, Spotlight, which has published a public notice declaring that the Association of Motion Pictures and TV Programme Producers notified that in order to curb the piracy and protect their interest, power of attorney issued to various copyright protection agencies has been taken away and the sole authority to take action is vested in the said Association and no other person has right to file any FIR. Various Companies are claiming that they are holders of copyrights from the producers in respect of Motion Pictures and TV Programmes. Certain illustrations are pointed out in the petition. On 21.10.2003, respondent No.5 issued notice to several Video Cine Owners calling upon them that they are the holders of right of so many companies and, therefore, they have to obtain license from them so as to enable them to exhibit the film in their video theater. The said notice was issued to Dharti Video Cinema wherein it was stated that they are holder of copyright of companies i.e. Time, Bombino, Indus, Venus, Captain Net, Gold, Priya, Bit and Zypsy / Ace Video. It is stated in the said notice that the said theater owners shall obtain the license by paying fees of Rs.33,000/- towards annual fees and Rs.3,000/- for additional charge of exhibition by Projector. If the said person fails to obtain license, they would prosecute them. Similar notice has been issued to Liberty Video Cinema dated 27.10.2003. To obtain necessary information from the said Company, the petitioner wrote a letter dated 28.11.2003 requesting the respondent to provide necessary information in respect of the right held by the said Company and the fees for exhibiting the said film and information in respect of the place where their copy under the right can be obtained. The respondent No.5 replied the said letter through its local Agent that Company gives license for exhibiting the film available in the market in the form of video cassettes, video CDS and DVDs for the period of one year, which they grant permission to exhibit only, the Company does not copy the film and does not supply the video cassettes, Video CDs or DVDs. The Company said that they do not have copy of the Agreement and copies are also not being shown to anybody. When the license is obtained, the list of films would be made available to the holders of the license. In view of such development, the second petition being Special Civil Application No.17783 of 2003 was filed.
Thus, in view of the conflicting interest of the two groups, role of State Agencies and State Authorities is required to be examined and what are the steps to be taken by them to safeguard the interest of the parties are required to be determined by the Court in this group of petitions.
An affidavit-in-reply is filed by the District Collector, Surat in Special Civil Application No.5271 of 2001 wherein it is contended that the power under Section 64 of the Copyright Act is vested in the Police Officers for taking action against the Video Cinema Houses responsible for violating the Copyright Act. The powers are not given to the District Magistrate or the Mamlatdar, Entertainment for taking actions against the violators of the provisions of the Copyright Act. If the organizers of the Video Cinema violate the Copyright Act and show the video films, then the Police Officers can take necessary actions. All the Police Commissioners / Collectors and District Magistrates / District Police Officers have been issued instructions to take steps for violation of the Copyright Act by the Govt. letter dated 01.02.1999 by the Deputy Secretary, Information and Broadcasting department, Gandhinagar. The Mamlatdar, Entertainment Tax, Surat has vide his letter dated 03.02.2000 instructed all the cable operators and Video Hall Organizers to abide by the instructions issued by the Government and not to violate the Copyright Act. It is, therefore, contended that the reliefs prayed for in the petition are not required to be granted and the petition deserves to be dismissed.
An affidavit-in-reply is filed by the respondent No.5 i.e. Police Inspector, Varachha Road Police Station, Surat in Special Civil Application No.5271 of 2001 wherein it is, inter alia, contended that wherever any complaint is received that the films are released by committing breach of the provisions of the Copyright Act by using Video Cassette, Video CD and DVD, the competent authority is taking action under Section 64 of the Act by seizing such articles and hence, it is not correct to state that the Police Authorities are not taking any action. It is further contended that there was no connivance of the police officers with people having vested interest. Specific instances wherein steps were taken by the police department are given in the reply. There was a raid on 17.04.2000 and it was found that the picture was being released on Video CD. Immediately, a crime was registered under Crime Register No.3150 of 2001 under Section 52-A and 68 of the Copyright Act. Three persons were arrested and the order of the remand for the period from 05.06.2001 to 07.06.2001 was obtained and the film print was also taken into custody and further investigations were made. Similarly on 18.04.2001, a complaint being Crime Register No.173 of 2001 for the offences punishable under Sections 143, 147, 148, 149, 395, 186 and 427 of the Indian Penal Code were registered against one Mr. Ashwin J. Patel and others. Four accused were arrested.
On the basis of the details given in the reply, it is contended that wherever any action is required to be taken, the Police authorities is immediately taking such action and hence, the allegations made in the petition against the police authorities is without any basis and hence, the petition deserves to be dismissed.
One more reply has come on record of Special Civil Application No.5271 of 2001 which is filed by respondent No.7 a private party who was subsequently impleaded as respondent No.7 in the said petition. The petition was opposed on the ground of suppression of material facts / documents. It is alleged that there is nothing on record to show that the petitioner No.1 is a consortium of various Video companies. No material was produced to show that they are owning sole and commercial video copyrights of more than 1200 Indian films. Even the names of such films were not mentioned. Similarly, the so-called authority alleged to have been given to the petitioner No.2 by the petitioner No.1 has also not been produced. It is further contended that one Mr. Dhiraj N. Shah who has sworn the affidavit in the present petition as petitioner No.1 had filed Regular Civil Suit No.398 of 1991 under the name of Cable Video private limited in the Court of Civil Judge (S.D.), Rajkot praying for similar relief as prayed for in the petition. In the said suit, it has been claimed by the plaintiff that he is having copyrights of more than 3,000 films. If that plaintiff in the said suit is having copyright of more than 3,000 films, then it is not possible that the present petitioner has copyrights of more than 1200 films as averred in the petition. It is, therefore, contended that only on the ground of suppression regarding Civil Suit, the petition is required to be dismissed. It is further contended that the petitioners are having efficacious alternative remedy under the law and hence, extra-ordinary writ jurisdiction of this Court under Article 226 of the Constitution of India is not required to be exercised. It is further contended that the respondent Nos.1 to 6 are not under any statutory obligation to seize all the equipments used for infringement of copyright including Projectors, Television Sets, Amplifiers, speakers, Video Cassette / Video CD / DVD Players etc. Under the Copyright Act, it is the duty of the copyright owner to make available commercial video cassette / Video CD / DVD as per the provisions of the Cinematographic Act, 1952. No commercial Cassettes / DVDs with Sensor Certificate issued by the competent authority is made available in the open market by the so-called copyrights owner of the films. The so-called Video Companies claiming themselves owner of the copyright are indulging in activities violating the provisions of Section 7-A of the Cinematographic Act, 1952 because distinct serial number is not given to the Video Cassettes / CDs and DVDs by them. The purchasers are not given bills for purchase of Video Cassettes, CD and DVDs at their authorized Video shop, possibly either because they are themselves indulging in duplicating and evading huge excise duty. It is, therefore, contended that such persons are not entitled to invoke the extraordinary powers to this Court under Article 226 of the Constitution of India.
It is further contended by the respondent No.7 that the interpretation placed by the petitioner on Section 63 and 64 of the Copyright Act is not correct. The petitioner is trying to mislead this Court in as much as under Section 64, the Police has got the power to seize without warrant all copies of the work and all plates used for the purpose of making infringing copies of the work. Hence, only those plates which are used for the purpose of making infringement copies of the work can be seized. The police authorities have no power to seize everything, including Projectors, Television Sets, Amplifiers, speakers, Video Cassette / Video CD / DVD Players etc. as the same are being used for the purpose of making infringing copies of the work. It is not even the case of the petitioners that the Video Cinema owners are making infringing copies of the work.
It is further contended in the reply that it is not the responsibility of respondent Nos.1 to 6 to seize all equipments used for unauthorized public exhibition of films on Video Cassettes / CDs / DVDs without any license or written permission from the copyright owners. If the petitioners desire to have any declaration of right, then they shall have to file appropriate proceedings before the appropriate forum, but they cannot invoke the extraordinary writ jurisdiction of this Court for declaration of their right and further declaration that the offence under the Copyright Act i.e. offence of infringement of copyright is a non-bailable offence and, therefore, the Police authorities have no power to grant bail contrary to the statutory provisions. The petitioners are also not entitled to the declaration that the duty to implement the law being a statutory obligation, the petitioners cannot be called upon to pay any amount to the respondent Nos.1 to 6 for discharging their statutory obligations. There is a provision in the relevant Statute which provides for making available members of the Police force on payment of requisite amount to the Government. In the guise of statutory obligations, the powers of the Police Officers are being used or sought to be used for the private parties of applying force on owners of small Video Cinemas to pay huge amounts to the petitioners ostensibly on the ground that the said amount is license charges. Despite the fact that the persons with whom the petitioners are colluding are evading excise duty and are also violating the provisions of the Cinematographic Act. It is, therefore, strongly urged that no reliefs prayed for in the petition can be granted and the petition deserves to be dismissed.
After having heard learned Counsels appearing for the parties and after having considered their rival submissions and after having carefully gone through the pleadings made by the parties in all the four petitions and after having examined them in light of the statutory provisions and decided case law on the subject, the Court is of the view that the parties have approached this Court by invoking the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India despite the fact that an equally efficacious and adequate alternative remedy is available for redressal of their grievances and effective machinery for implementation of the statutory provisions is provided under the Act itself and even otherwise, the reliefs sought for in the petitions require detailed investigation of facts and appreciation of evidence by the competent Court, which may not fall within the domain of this Court in exercise of its writ jurisdiction. The basic grievance of the petitioners in Special Civil Application Nos.5271 of 2001 and 16062 of 2004 is that the respondent authorities are not exercising their power of seizure whenever any infringement of right is brought to their notice by seizing all the equipments including the Projectors, Television Sets, Amplifiers, speakers, Video Cassette / Video CD / DVD Players etc. used for infringement of copyrights by unauthorized public exhibition of films on Video Cassettes / public video CDs / DVDs without obtaining any license or written permission from the owner of the copyright. The petitioners further prayer in the petition is to treat the offence of infringement of copyright as a non-bailable offence instead of treating the same as bailable offence. Lastly, they have prayed for the declaration from this Court that they are not liable to pay any amount for the purpose of engaging the staff for conducting a raid. One more prayer is made in Special Civil Application No.16062 of 2004 for issuance of directions to the respondent authorities not to grant / renew the license only if the Video Theater Owners produce the license / certificate / written permission from the copyright owners. These prayers can never be granted in isolation. It depends upon facts of each case and considering the facts of each case, the competent authority can decide such issue. Instead of undergoing various steps which are required to be taken under the Act and by-passing the said procedure, the petitioners invoked the writ jurisdiction of this Court. The Courts have deprecated the practice of directly approaching the Court by seeking prevention of infringement of copyright and restraining illegal screening of a particular film, especially when the authorities are taking action under Sections 63 & 64 of the Copyright Act. If there is a contravention of the provision of the Copyright Act, then the Police can seize the infringing copies under Section 64 of the Act and take action in accordance with Section 64. This section contemplates only seizure of copies which are infringing copies of the work and does not authorize to seize the TV & VCR and other apparatus and, therefore, on the proper interpretation of the Act would be that only if there is a contravention of provisions of Section 52-A, then the action to the extent mentioned in Section 64 can be taken. The Orissa High Court has taken the view in the case of Sk. Zaharul Islam V/s. Umakanta Khadiratna and another, 1992 CRIMINAL LAW JOURNAL 1869 to the effect that the Magistrate even after taking cognizance cannot direct any Police Officer to effect seizure. It is the domain of the Police Officer alone to effect seizure. If there is any anomaly, it is for the Legislature to mend it. In the case of Surajmal Jain and another V/s. State of Orissa, 1989 CRIMINAL LAW JOURNAL 1960, the Court held that where investigating agency seized VCR, Television, the screen and other apparatus along with film from accused as accused were exhibiting a film without having licence for exhibition of film which itself had not been certified for exhibition, the action of the investigating agency was not proper. The investigating agency can at best seize the uncertified film alone and not apparatus as the power of seizure under Section 7A of the Act, is limited to the extent of the seizure of the film and not the apparatus. Thus, what is not provided under Section 64 cannot be directed by the Court while exercising its writ jurisdiction and hence, if Section 64 permits only to the seizure by infringing copies and plates and does not empower the Police authorities to seize all the equipments including the Projectors, Television Sets, Amplifiers, speakers, Video Cassette / Video CD / DVD Players etc, the Court cannot direct them to do so. Similarly, if the particular offence is described as bailable offence under the Act, the Court cannot direct the authority to treat the said offence as non-bailable offence. Such a prayer can never be granted by the Court. The law never permits any one to go beyond or to act beyond the four corners of law and all actions are supposed to be taken within the legal framework and the parameters laid down in the Act governing any particular matter which is being brought to the Court for its decision.
The petitioners prayer with regard to the declaration for providing police assistance without any payment is also wholly unjustified. If the petitioners want certain police assistance for protection and preservation of their private interest, they are bound to make such payment. By giving different colour or nomenclature, they cannot avoid such payment. When a complaint is lodged by an aggrieved party before the Police authority and the Police authority on its own take action as per its own convenience and availability of time and manpower, in that case, such Police authority may not ask for any payment from the aggrieved party. But at the behest of such aggrieved party, immediately action is taken and that too instead of any public interest, the only object is to protect the private interest, such party is bound to make the payment for taking such police assistance and hence, the Court cannot issue any such general direction in this regard.
Similarly, the only prayer made in Special Civil Application No.16062 of 2004 is also required to be considered in light of certain factual information and Court cannot decide this issue in absence of all requisite details and particulars on record. The authorities are empowered under the law to go into this aspect and they do not require any direction from this Court. If the Video Theater owners approach the authorities for grant or renewal of the license, all requisite formalities are required to be observed by them. Simply because the petitioners want such condition precedent to be incorporated, it cannot be insisted upon by the authority. However, if the Statute so requires, it is bounden duty of the authority to insist for the compliance of such requirements. It is not for this Court to decide this issue in the present petition and it is left to the authority to consider such issue within the broad parameters of law and statutory provisions.
This discussion would now lead to decide the remaining two petitions i.e. Special Civil Application No.12738 of 2001 and Special Civil Application No.17783 of 2003. Special Civil Application No.12738 of 2001 is filed by Shri Rakesh K. Dua, proprietor of R. K. Video Cinema praying for writ of prohibition against the respondent authorities restraining them from taking away or seizing the VCR, VCD Screen and furniture and fixtures etc. including other instruments from the custody of the petitioner during the raid, if any, that may be carried out at the instance of any complainant claiming to have any copy right. This aspect is at length considered by the Court while deciding Special Civil Application No.5271 of 2001 and hence, no further discussion is required. For the sake of repetition, it is only required to be reiterated that the authorities cannot act beyond the provisions contained in Section 64 of the Act and what is permissible therein, while effecting seizure, nothing else can be seized.
So far as Special Civil Application No.17783 of 2003 is concerned, the prayers made therein by the petitioners Shri Nilesh J. Patel are more or less of civil nature. They are in respect of determination of the rights of the parties. The petitioner is seeking direction and/or declaration from this Court that no criminal prosecution can be launched against any person including the petitioner by any person unless and until the Producer and/or assignee of the right of the producer make available copy of the film in respect of which they hold right to the public for commercial exploitation. Launching of prosecution has nothing to do with the discharge of the Producer or the assignee of the Producer's obligation to make available the copy of the film in the market for commercial exploitation. Both these things are different and are unconnected with each other. If an infringement of copyright takes place, criminal prosecution may be launched against the violator. It may be a good defence in some cases where any prosecution is launched against a person for the alleged infringement of copyright, but it cannot be a condition precedent. Even otherwise, such issues can be resolved by the appropriate forum by establishing their legal rights and leading necessary evidence to that effect before the Court of competent jurisdiction. The Court cannot direct the Police authority not to accept any complaint even if some infringement takes place by the petitioner or any other member of the Video Theater owners Association. Such omnibus or vague prayer can not generally be entertained by the Court while exercising the writ jurisdiction. It is open for the parties to urge all these contentions in support of their claims and/or defence before the appropriate forum.
With these directions and observations, all the four petitions are accordingly disposed of. Rule and/or notice in each of the petitions is accordingly discharged. Interim relief, if any, in all these four petitions stands vacated. There shall be no order as to costs.
Sd/-
[K. A. PUJ, J.] Savariya Top