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2010 Supreme(Guj) 151

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
HONOURABLE MR. JUSTICE K.A. PUJ
CINEMASTER (A DIVISION OF ASIAVISION ENTERTAINMENT PVT.LTD.) & 1 - Petitioners
Versus
STATE OF GUJARAT & 7 - Respondents
SPECIAL CIVIL APPLICATION No. 5271 of 2001 WITH 12738 of 2001, 17783 of 2003. 16062 of 2004.
Decided on: 07/05/2010

Advocates Appeared:
1. SPECIAL CIVIL APPLICATION No. 5271 of 2001
MS. SRUSHTI A. THULA for Petitioners.
MR. NIKUNT RAVAL, AGP for Respondent Nos.1 - 6.
MR. S.V. RAJU for Respondent No.7.
RULE SERVED for Respondent No.8.
2. SPECIAL CIVIL APPLICATION No. 12738 of 2001
MR. B.M. 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. B.M. 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.

Headnote:

Criminal Procedure Code, 1973 - Section 154 - Copyright Act, 1957 - Sections 64 and 52A - Special Civil Application is filed by Cine Master, a Division of Asia Vision Entertainment Private Limited and another praying for direction to respondent authorities to exercise power of seizure whenever any infringement of right is brought to their notice by seizing all 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 - Petitioners have also prayed for direction to respondent authorities not to treat offence of infringement of copyright as bailable offence but to treat the same to be non-bailable offence - 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 - Held, 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 - Court cannot direct 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 cannot generally be entertained by the Court while exercising the writ jurisdiction - Four petitions are accordingly disposed of

JUDGMENT

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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












































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