1965 Supreme(Pat) 38

PATNA HIGH COURT
Tarkeshwar Nath, J.
Jagdish Prasad Gupta
Versus
Parmeshwar Prasad Singh
Criminal Revision No. 1600 of 1963 ; 1601 of 1963 ; 1602 of 1963 ;
Decided On : MARCH 30, 1965

The copyright in the question papers of the Bihar School Examination Board vested with the paper-setters and not with the Board, unless it was assigned or relinquished by the paper-setters.

Headnote:

COPYRIGHT - OWNERSHIP - QUESTION PAPERS SET BY PAPER-SETTERS - COPYRIGHT VESTS WITH PAPER-SETTERS - BOARD HAS NO COPYRIGHT UNLESS ASSIGNED OR RELINQUISHED - ENQUIRY UNDER SEC. 202, CR. P. C. - SCOPE - ACCUSED HAS NO RIGHT TO TAKE PART - PROCEDURE ADOPTED BY MAGISTRATE IN PERMITTING ACCUSED TO INTERVENE DURING ENQUIRY IS WHOLLY UNWARRANTED.

Fact of the Case:

The petitioner, the sole proprietor of Vidya Kendra, was appointed the sole agent for the sale of old question papers of the Bihar School Examination Board, Patna. He filed three petitions of complaint for summoning the opposite parties for displaying, offering for sale and selling question papers of the Board in which the Board had a copyright. The Sub-divisional Magistrate dismissed the complaints holding that the petitioner failed to make out a prima facie case that either the Board or he had the copyright in respect of the old question papers. The Sessions Judge dismissed the petitioner's revision petitions summarily. Hence, the petitioner filed three applications in revision in the High Court.

Finding of the Court:

1. The question papers of the Bihar School Examination Board were original literary works within the meaning of Sec.13 (1) (a) of the Copyright Act, 1957. 2. The paper-setters of these question papers were the authors of it and as such they had the copyright in that question paper. 3. The Board had no copyright in the question papers unless it was assigned or relinquished by the paper-setters. 4. The enquiry under Sec. 202, Cr. P. C. is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he might have felt upon the mere perusal of the complaint and the consideration of the complainants evidence on oath. 5. The accused has no right to take part in the proceedings during the enquiry under Sec. 202, Cr. P. C. 6. The procedure adopted by the Magistrate in permitting the accused to intervene during the enquiry is wholly unwarranted.

Issues: 1. Whether the question papers of the Bihar School Examination Board were original literary works within the meaning of Sec.13 (1) (a) of the Copyright Act, 1957? 2. Who had the copyright in the question papers - the paper-setters or the Board? 3. Did the Board have any copyright in the question papers unless it was assigned or relinquished by the paper-setters? 4. What is the scope of the enquiry under Sec. 202, Cr. P. C.? 5. Does the accused have the right to take part in the proceedings during the enquiry under Sec. 202, Cr. P. C.?

Ratio Decidendi: 1. The question papers of the Bihar School Examination Board were original literary works within the meaning of Sec.13 (1) (a) of the Copyright Act, 1957, as they involved labour and skill in their compilation. 2. The paper-setters of these question papers were the authors of it and as such they had the copyright in that question paper, as per Sec. 17 of the Copyright Act, 1957. 3. The Board had no copyright in the question papers unless it was assigned or relinquished by the paper-setters, as per Sec. 21 of the Copyright Act, 1957. 4. The enquiry under Sec. 202, Cr. P. C. is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he might have felt upon the mere perusal of the complaint and the consideration of the complainants evidence on oath. 5. The accused has no right to take part in the proceedings during the enquiry under Sec. 202, Cr. P. C., as per the decision of the Supreme Court in Chandra Deo Singh V/s. Prokash Chandra, AIR 1983 S C 1430.

Final Decision: The applications in revision were allowed, the orders dismissing the complaints were set aside and it was directed that further enquiries into these complaints be made, subject to this that there will be no enquiry so far the complaint and allegations against Tapan Kumar Bose (one of the accused) are concerned, inasmuch as Criminal Revision No. 1601 of 1963 has been already dismissed against him.