Madras High Court
M.K.S.Vasan @ Sakthi Vasan vs P.Subramaniam on 27 November, 2018
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.11.2018
CORAM:
THE HONOURABLE Mr.JUSTICE M.NIRMAL KUMAR
Crl.O.P.(MD)No.18801 of 2014
[Orders Reserved on 20.11.2018]
M.K.S.Vasan @ Sakthi Vasan ... Petitioner
Vs.
1.P.Subramaniam
2.S.Geetha
3.S.baskar
4.V.Sivaraman
5.M.Maheswaran
6.The Superintendent of Police,
Video Piracy Cell,
CBCID, Chennai
7.The Inspector of Police,
Video Piracy Cell,
CBCID,
Dindigul District.
8.The Deputy Superintendent of Police,
Intellectual Property Enforcement Cell,
CBCID, Chennai.
9.The Inspector of Police,
Intellectual Property Enforcement Cell,
Unit – II, Ayanavaram,
Chennai – 23. ... Respondents
http://www.judis.nic.in
2
PRAYER: Petition is filed under Section 439(2) of Criminal Procedure
Code, praying to cancel the Anticipatory Bail granted by the learned
Principal Sessions Judge, Karur, in Crl.M.P.No.993 of 2018 in favour of
respondents 1 and 2 herein and to pass suitable orders directing to commit
them to custody.
For Petitioner : Mr.G.Prabakaran
For Respondent-1 : Mr.K.Suyambulinga Bharathi
Govt.Advocate (crl.side)
For Respondent- : Mr.I.Velpradeep
R1 to R5
ORDER
The Petitioner / Defacto Complainant has filed this Criminal Original Petition, to cancel the anticipatory bail granted to respondents 1 to 4 / A1 to A5 in Crl.M.P.No.993 of 2018, by the learned Principal Sessions Judge, Karur, on 08.10.2018, in Crime No.175 of 2018, registered on the file of the 9th respondent Police, for the offences punishable under Sections 51, 63(b) 15(2) of Copy right Act, 1957 and Section 8(a) of The Tamil Nadu Exhb of Film on TV, VCR and Cable TV (Regulation) Act, 1984.
2. The respondents 1 to 5 are accused in the said Crime Number. The respondents 6 is the Superintendent of Police, Video Piracy Cell, CBCID, Chennai; R7 is the Inspector of Police, Video Piracy Cell, CBCID, Dindigul http://www.judis.nic.in 3 District; R8 is the Deputy Superintendent of Police, Intellectual Property Enforcement Cell, CBCID, Chennai and R9 is the Inspector of Police, Intellectual Property Enforcement Cell, Unit-II, Ayanavaram, Chennai. The case came to be registered in Crime No.175 of 2018, on 04.10.2018, by the 9th respondent Police, on a complaint given by the petitioner / defacto complainant, who is the producer of Tamil Movie, ”Raja Ranguski”.
3. Mr.G.Prabhakaran, the learned counsel appearing for the petitoner would submit that the petitioner / defacto complainant is the producer of Tamil Movie, ”Raja Ranguski”. Due to the act of the respondents 1 to 5, the petitioner had to sustain huge loss. The petitioner further contended that Tamil Movie, ”Raja Ranguski” was released and screened in Theatres all over the Tamil Nadu on 21.09.2018 and the Movie was successfully screened and earned for about two to three days after the release and were able to receive good revenue share from all theatres in which, movie was screened. Later, suddenly, the revenue share level has gone down and turned out in the Theatres reduced. Shocked by such happenings, the petitioner entertained a suspicion, as to whether the movie has been illegally and deceitfully copied from some Theatres and uploaded through Internet by some notorious Websites and, when the petitioner browsed the Internet and shockingly found that the move has been illegally and deceitfully copied from some Theatres and uploaded thorough Internet in few notorious Websites and the same has been viewed by thousands of http://www.judis.nic.in 4 people by browsing the Internet and found the following Websites have illegally uploaded the movies:-
1. http://tamilrockers.ms/
2. http://www.movieprime.com/raja-ranguski-2018 dvdscr-full-tamil-movie-watch-online.html
3. http://www1.flimlinks4u.is/raja-ranguski-2018-tamil-
full-movie-watch-online.html
4. http://www1.onlinemoviewatch.org/play-raja-ranguski-2018-tamil- full-movie-online-watch-free-flim.html
5. http://ramilrasigan.net/raja-ranguski-2017-movie-watch-online
4. It his further contention that the petitioner's movie was screened and released in Theatres, by availing the service of QUBE, which provides an in-built security measures to prevent illegal copy and piracy of the movie. Hence, he approached the QUBE to ascertain from which Theatre their movie had illegally copied. M/s.QUBE, by a communication, dated 28.09.2018 had informed that the Movie, ”Raja Rankuski” had been illegally copied, when the picture has been screened at 'Kavithalaya Theatre', Karur, on the very day of release of movie ie.., on 21.09.2018 and the copying has been carried out in two parts from 11.01 a.m., to 1.47 p.m., and 2.21 p.m., 4.26 pm., using Cam Cador / Camera. Thereafter, the petitioner had made some discreet enquiry and confirmed that 'Kavithalaya Theatre' is habitually indulging in pirating the Tamil Movies screened in their Theatre, for illegal gains. Thus, owners, managerial staffs as well as operating staff viz., http://www.judis.nic.in 5 respondents 1 to 5 were directly indulged in the above illegal acts. Further, when the movie was downloaded from the above said Websites, for initiating appropriate legal proceedings, it is found the pirated copy of movie uploaded in the Internet has been shot and copied using High Definition Video Cameras. Further, the nature, quality and angle of the screen projection of the movie exhibited in notorious Websites would candidly prove and demonstrate that the same had been copied either from 'Operator Room' or from some other secret place parallel to the same. Thereafter, the petitioner preferred a complaint to the 6th respondent on 04.10.2018 and on receipt of the same, it was forwarded to the 9th respondent through 8th respondent. The 9th respondent had registered the case, for the offences under Section 379, 380, 406 and 409 of Indian Penal Code, 1860 and under Sections 63, 63B and 65A of Copy Right Act and Section 66-B of Information Technology Act, 1957, in Crime No.175 of 2018. The investigating Agency had taken steps to block the above said notorious Websites through Cyber Crime Unit and FIR has been forwarded to the learned XI Metropolitan Magistrate, Chennai and continuing the investigation.
5. The petitioner thereafter came to know that respondents 1 to 5 had filed a petition, seeking anticipatory bail, before the Principal Sessions Judge, Karur in Cr.M.P.No.993 of 2018 in respect of illegal theft of piracy of their movie in the Theatre, by arraying respondents 6 & 7 alone, as respondents in the anticipatory bail petition. The Principal Sessions Judge, http://www.judis.nic.in 6 Karur had granted anticipatory bail on 08.10.2018. The said order had been obtained by exercising fraud and deception on the Court with active collusion of the 7th respondent and the Public Prosecutor, who represented 6th and 7th respondents, who are shown as respondents in the anticipatory bail petition. Further, it is submitted that the very reading of the order would clearly establish that the case in Crime No.175 of 2018, registered by the 9th respondent had been suppressed and not brought to the notice of the Principal Sessions Judge, Karur and projected as though the case is being investigated by the 7th respondent, though the fact remains that the 7th respondent has nothing todo with the registration and investigation of the case in Crime No.175 of 2018. It is also learnt that the Public Prosecutor, who represented for 6th and 7th respondents had received a telephonic information from the 8th respondent about the registration and pendency of the investigation of the case at Chennai, by the 4th respondent. Despite the same, the public prosecutor, in active collusion with respondents 1 to 5 suppressed the same before the Principal Sessions Judge, Karur. Further, the public Prosecutor has suppressed the criminal antecedents of respondents 1 to 5, who are habitually indulging in copying of new Tamil movies screened in their Theatres. Earlier, the case for committing such offence with regard to Tamil Movie viz., “Thodraa” has been registered in Crime No.227 of 2018 on 02.10.2018. Hence, grant of anticipatory bail to respondents 1 to 5 in Cr.M.P.,No.993 of 2018 stands vitiated by fraud, active collusion and abuse of process of Court of Law. In view of the same, the http://www.judis.nic.in 7 petitioner prayed to cancel the order of the Principal Sessions Judge, Karur, granting anticipatory bail to R1 to R5 in Cr.M.P.No.993 of 2018, on 08.10.2018. Even prior to lodging of the complaint on 29.09.2018, the accused had obtained anticipatory bail.
6. Mr.K.Suyambulinga Bharathi, the learned Government Advocate (crl.side) appearing for respondents 6 to 9 had filed a counter, on behalf of 8th respondent and submitted that the petitioner had lodged a complaint on 02.10.2018 and on 04.10.2018. The 9th respondent had registered the case in Crime No.175 of 2018, for the offences under Sections 379, 380, 406 and 409 of IPC., and Sections 63, 63B and 65A of Copy Rights Act, 1957 and Section 66B of Information Technology Act, 2000 against respondents 1 to
5. The respondents 1 to 5 had obtained anticipatory bail on 08.10.2018. It is to be noted that FIR was registered on 04.10.2018. Anticipating the registration of FIR, the accused 1 to 5 had filed the anticipatory bail application on 24.09.2018 itself mentioning the Crime No.'Not Known'. The respondents 1 to 5 deliberately omitted to array the proper respondents and strangely chosen to array 6th and 7th respondents in the anticipatory bail application. Further, it is stated that respondents 1 to 5 are indulging in similar kinds of offence, for which a case has been registered in Crime N0.227 of 2018, by Dindigul I.P.R.E Cell. The investigation is in preliminary stage and the custodial interrogation of the respondents 1 to 5 is necessary to cull out their involvement. Further, respondents' 1 to 5 involvement in http://www.judis.nic.in 8 similar offence was not brought to the attention of the Court during hearing of the anticipatory bail application and hence, the anticipatory granted in Cr.M.P.No.993 of 2018 is to be cancelled.
7. Mr.Velpradeep, the learned Counsel appearing for respondents 1 to 5 had filed a counter denying the allegations made by the petitioner. He would further submit that the report given by QUBE Technology reveals the fact that the said Video has recorded somewhere in between the chairs of auditorium and has been made below the screen level and not from the Projector Room. Further, from the report it is found that the sound track has been recorded using microphone and there is visibility of movements of some audience. The Respondents 1 to 5 were not aware of the registration of FIR, by the 9th respondent. In fact, they were called to attend the enquiry by Video Piracy Cell, Dindigul, who had informed that there was a complaint against them with regard to the Tamil Movie “Raja Ranguski”. Hence, apprehending arrest they had filed anticipatory bail petition before the Principal Sessions Judge, Karur. The 9th respondent had not informed about the registration of FIR to the respondents 1 to 5 or at the time of hearing of bail petition. It is further submitted that one representative on the side of the petitioner for each Theatre is nominated to monitor the collection, to enter the projector room and auditorium and if he finds any piracy activity, he can very well make complaint such pirates and it has become the habit of the producers to lodge a complaint in commercially failed movies against http://www.judis.nic.in 9 the exhibitors. The intention of the complainant is to extract money from the exhibitors to equate the loss incurred in their production. Further, the place of occurrence is at 'Kavithalaya Theatre', Karur, but the FIR had been registered at Chennai and the competent jurisdiction is vested with Dindigul Video Piracy, CBCID Cell, and therefore, entertaining the bail, by the Principal Sessions Judge, Karurr has no illegality.
8. On perusal of the records would show that the petitioner had given a complaint on 02.10.2018 to the 6th respondent and the case was came to be registered on 04.10.2018, by the 9th respondent. The anticipatory bail came to be filed on 28.09.2018 by the respondents 1 to 5 and the orders came to be passed in Crl.M.P.No.993 of 2018, by the Principal Sessions Judge, Karur, on 08.10.2018. In the anticipatory bail application, the Superintendent of Police, Video Piracy Cell and the Inspector of Police, Video Piracy Cell, CBCID, Dindigul alone were shown as respondents. These two respondents shown as respondents 6 & 7 herein. It is the case of the petitioner that the complaint was given to the 6th respondent on 02.10.2018 and the case came to be registered on 04.10.2018. Thereafter orders were passed in the anticipatory bail application only on 08.10.2018. Though in the counter by the 8th respondent it has been affirmed that the 7th respondent was present before the Principal Sessions Judge, Karur and gave instruction to the concerned Public Prosecutor that no complaint was received by the 7th respondent with regard to film “Raja Rankuski”. It http://www.judis.nic.in 10 could be seen that on 04.10.2018, the FIR came to be registered on the complaint given by the petitioner on 02.10.2018 with the Superintendent of Police, who has been shown as respondent in the anticipatory bail application. The respondent Police having failed to act diligently and to inform the Court about the correct status of the case. In this case, strangely the Inspector of Police, who is subordinate to the Superintendent of Police, files a written instruction to the concerned Public Prosecutor, as no complaint received for “Raja Rankuski”. This written instruction should have been filed only after verifying and obtaining approval from the superior officers. Dindigul Video Piracy Cell, CBCID, is subordinate to the Intellectual Property Enforcement Cell, CBCID, Chennai The Intellectual Property Enforcement Cell and Video Piracy Cell are all closely inter connected units, wherein there has been a communication with each other on day-to-day basis and in such circumstances, it is questionable how the 7th respondent files such written instruction to the Public Prosecutor.
9. With regard to the submission of respondents 1 to 5 that under Section 177 of Cr.P.C., every offence shall ordinarily be enquired into and tried by a Court within whose local jurisdiction it was committed and hence, approaching the Court at Karur, cannot be countenanced. The place of enquiry and trial should be construed taking into consideration the other provision of Chapter XIII of Cr.P.C. The Intellectual Property Video Piracy Cell is a specialized cell having its Head quarters at Chennai and the units http://www.judis.nic.in 11 are spread throughout the state headed by a Police Officer, who are all directly interact with the superior officers at Cehnnai, on daily basis and have regular communication and they have been notified as Police station giving jurisdiction and accordingly, FIR has been registered by the unit.
10. With regard to the contention of the Piracy both the petitioner and the respondents relied upon the report of M/s. QUBE. From the report it is admitted that the Tamil Movie, “Raja Rankuski” was screened in the Theatres of respondents 1 to 5 and a pirated copy was made from digital source file shot using 'Cam Cador / Camera' from the screening of 'Kavithalaya Theater' and the time, manner from which angle it had been taken and other particulars are given, which has to be thoroughly analysed and the operating of notorious Websites, which are uploading through Internet in the Websites may give access to one and all which is a monstrous growth, which is killing the Film Industry and making the Industry to suffer huge loss and thereby, the very existence of Industry is at doldrums. Due to the complicity and advancement of technology such kind of happenings are taking place at various points and places. Hence, there is no cordiality now between the producers, exhibitors and others each one point finger against each other. It was also brought to the notice that the principal Bench of this Court in W.P.No.28366 of 2018, on 12.11.2018 had directed the Director General of Police, Government of Tamilnadu, Chennai, to convene a meeting of the representatives of the Petitioner Association, http://www.judis.nic.in 12 Distributors' Association, Producers' Association and other stakeholders and address the grievance of the Film Exhibitors' Association with respect to the arrest of the Theatre owners, after issuing notice to them and an opportunity of personal hearing and the Writ Petition is kept pending.
11. Considering the above facts and circumstances of the case and considering the rival submissions and on perusal of the documents produced on either side, and on the admission of the 8 th respondent that a written instruction has been given by 7th respondent in the anticipatory bail petition and the anticipatory bail was obtained in the stage of Crime Number “Not Known” and it is now brought to the notice that the 9 th respondent had registered the case in Crime No.175 of 2018, on 04.10.2018 and the FIR has been sent to the concerned Court viz., XI Metropolitan Magistrate, Chennai, which is a jurisdictional Court, the offences are cognizable, which are serious in nature, the 9th respondent is empowered and got jurisdiction to register the complaint, in view of Chapters 13 and 14 of Cr.P.C., the anticipatory bail obtained by R1 to R5 is without jurisdiction and there have been suppression of truth and complete facts before the Court below, the anticipatory bail granted to the respondents 1 to 5 herein are hereby set aside and cancelled.
12. The respondents 1 to 5 are hereby directed to approach the concerned Court, for seeking anticipatory bail, within a period of two weeks http://www.judis.nic.in 13 from the date of receipt of a copy of this order. In the meanwhile, the respondents 6 to 9 are not to take any coercive action, against respondents 1 to 5, with regard to this case.
27.11.2018
Index : Yes / No
Internet : Yes / No
MPK
To
1.The Principal Sessions Judge, Karur,
2. The XI Metropolitan Magistrate, Chennai,
3.The Superintendent of Police,
Video Piracy Cell, CBCID, Chennai
4.The Inspector of Police,
Video Piracy Cell, CBCID,
Dindigul District.
5.The Deputy Superintendent of Police,
Intellectual Property Enforcement Cell,
CBCID, Chennai.
6.The Inspector of Police,
Intellectual Property Enforcement Cell,
Unit – II, Ayanavaram, Chennai – 23.
7.The Addl.Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
14
M.NIRMAL KUMAR, J.
MPK
Pre-Delivery Order made in
Crl.O.P.(MD)No.18801 of 2018
27.11.2018
http://www.judis.nic.in