Point of Law: Offence under Section 63 of Copyright Act is a cognizable and non-bailable offence.

ORDER :

1. The petitioners, who are accused 1 and 2 in Crime No. 703/2022 of Kozhikode Town Police Station, seek anticipatory bail in this matter by resorting to Section 438 of the Code of Criminal Procedure.

2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor.

3. Precisely the allegation of the prosecution is that accused 1 and 2 herein committed offence punishable under Section 63 of the Copyright Act by using the music of ‘NAVARASAM’ which was exhibited in ‘KAPPA’ T.V. owned by Mathrubhumi Printing and Publishing Co. Ltd. performed by Thaikkudam Bridge band by including the same music ‘VARAHAROOPAM’ in a Kannada movie ‘KANTARA’ produced by the 1st accused and directed and acted by the 2nd accused, who have thereby violated the copy right.

4. While arguing for anticipatory bail, it is submitted by the learned counsel for the petitioners that the entire allegations are false. According to him, the defacto complainant as well as Thaikkudam Bridge Band filed 2 separate suits before the District Court, Kozhikode alleging copyright violation and when the petitioners herein challenged the maintainability of the above suits, the District Court found that the suits were not maintainable before the District Court and were directed to be presented before the commercial court having jurisdiction to decide the issue. Challenging one out of the order, FAO No. 147/2022 has been filed before this Court and the same was posted for judgment by this Court. According to the learned counsel for the petitioners, the petitioners never exhibited the song ‘NAVARASAM’ in the movie ‘KANTARA’ in the name ‘VARAHAROOPAM’ in any form. The song ‘VARAHAROOPAM’ is an independent creation and the same did not have any connection with NAVARASAM. Further, the entire allegation is within the ambit of a civil suit.

5. The learned counsel for the petitioners submitted further that even the prosecution did not collect any materials to prove that the ‘VARAHAROOPAM’ an independent creation at the instance of the petitioners, is having similarity or the same is deceptively similar in any manner and the prosecution relied on to hold so, prima facie, on the premise that somebody who saw ‘KANTARA’ film as well as ‘NAVARASAM’ opined similarity. The learned counsel for the petitioners would submit that the petitioners are ready to co-operate with the investigation by subjecting themselves for interrogation and other purposes. Therefore, in the background facts, as submitted, the learned counsel for the petitioners pressed for grant of anticipatory bail.

6. Whereas the learned Public prosecutor vehemently opposed anticipatory bail plea at the instance of the petitioners on the submission that the same would hamper the investigation. It is submitted by the learned Public Prosecutor that as per the report of the Investigating Officer and as could be read out from the case diary, the statements of the Senior Manager of Mathrubhumi KAPPA T.V. staff, Assistant Manager DIVO Company, who are the distributors of ‘NAVARASAM’ and ‘VARAHAROOPAM’ revealed that they have noticed similarity of music ‘NAVARASAM’ and ‘VARAHAROOPAM’ only after the same was intimated by the DIVO Company. Further, the Assistant Manager of DIVO Company after noticing similarity of the music, the same was shared with both parties and they had even participated at a Google meet to settle the matter amicably. Further, the investigation also would reveal similarities, as contended by the defacto complainant in between ‘NAVARASAM’ and ‘VARAHAROOPAM’ and prima facie an offence punishable under Section 63 of the Copy Right Act is made out. In such a case, the arrest and interrogation of the petitioners are necessary to accomplish meaningful investigation and successful prosecution.

7. Before discussing merits of the case and truth of allegations, prima facie, it is worthwhile to decide a question as to whether offence under Section 63 of the Copy Right Act is a non bailable or bailable