Back
2015 Supreme(Mad) 378
HIGH COURT OF JUDICATURE AT MADRAS
S. MANIKUMAR, J.
Nethaji & Others - Appellant
Versus
The State represented by its Station House Officer - Respondent
Criminal Revision Petition No. 868 of 2014 & M.P.No. 1 of 2014
Decided on: 20-01-2015
Advocate Appeared
For the Petitioner:R. Karthikeyan, Advocate.
For the Respondent: Thangavel, Public Prosecutor (Pondicherry).
Headnote:
Copy Rights Act - Section 63 – Appeal against conviction - Simple Imprisonment - Station House Officer CID Police Station Pondicherry has filed a final report under Section 173(2) of Criminal Procedure Code against petitioners alleging that about Hours at Cross Extension Pondicherry accused herein were found indulging in infringement of newly released Tamil films without having any copy right either from producers of above said films or from competent authority for purpose of selling to general public - On investigation it was found that Accused petitioner herein was person in charge of said premises - Prosecution alleged that all accused committed offences punishable under Sections 63 and 65 of Copy Right Act, 1957 - Before the trial Court on side of prosecution eight witnesses were examined besides marking four documents - Material Objects such as, CDs of various Tamil films Samsung Writers Monitor Mouse CPU and Speakers have been to After trial Chief Judicial Magistrate Pondicherry vide judgment convicted petitioners under Section 63 of Copy Right Act, 1957 and sentenced them to undergo six months of Simple Imprisonment with a fine of each in default to undergo six months of Simple Imprisonment - On appeal Additional District and Sessions Judge Pondicherry by judgment made confirmed same – Held, In instant case as has been pointed out even according to charge-sheet filed publication of petitioners were in fact never compared with publication of Board and therefore there was no basis to allege and infer that there was deceptive similarity between two publications - In circumstances there appears to be no legal basis to frame a charge for infringement of copyright Under Section 63 of Copyright Act, 1957 against petitioners - Thus from allegations as leveled and documents taken at their face value there being no material to support charge against petitioners - It would be clearly an abuse of process of Court to permit case to proceed further - So far as petitioners are concerned allegation of breach of copyright was misconceived – Accordingly petitions Under Section 482 succeed and are allowed - Proceedings in Criminal Case Court of against petitioners are quashed and they shall stand discharged - Though other grounds have been raised assailing correctness of impugned judgments perusal of same support contention of counsel for petitioners that there is a vital omission on part of prosecution to prove that seized by Investigating Officer from place of occurrence did contain movies as alleged - None of witnesses have spoken to effect that contained new movies - As rightly contended by counsel for petitioner even Courts below have not seen movies in seized - There is no comparison with original version - What is there in nobody knows - Even copyright owner or any authorized representative has been examined - As copyright amounts to an act of piracy there should be clear and cogent evidence to prove infringement - Thus it is a case of no evidence as regards infringement - Decisions stated supra squarely apply to facts of this case - In light of above discussion and decisions conviction and sentence to undergo six months of Simple Imprisonment with a fine of Rs.10,000/- each, in default, to undergo six months of Simple Imprisonment, is liable to be set aside and accordingly set aside - Criminal Revision Petition is allowed
1. Criminal Revision case is against the judgment of the learned Chief Judicial Magistrate, Pondicherry, in C.C.No.84 of 2006, dated 03.04.2007, in convicting the petitioners, under Section 63 of the Copy Rights Act and sentencing them to undergo six months of Simple Imprisonment, with a fine of Rs.10,000/- each, in default, to undergo six months of Simple Imprisonment and confirmed by the learned IInd Additional District and Sessions Judge, Pondicherry, in C.A.No.8 of 2007, dated 13.08.2010.
2. Station House Officer, CID Police Station, Puducherry, has filed a final report, under Section 173(2) of Criminal Procedure Code, against the petitioners, alleging that on 12.11.2005, about 09.30 Hours, at No.1, Amsavalli Illam, IInd Cross Extension, Sooriyaganthi Nagar, Pondicherry, accused Nos.2 and 3, petitioners 2 and 3 herein, were found indulging in infringement of newly released Tamil films, viz., Sivaksasi, Maja, Anniyan, Chandramuki and Gajini, without having any copy right, either from the producers of the abovesaid films or from the competent authority for the purpose of selling to the general public. On investigation, it was found that Accused No.1, Nethaji, 1st petitioner herein, was the person in charge of the said premises. Prosecution alleged that all the accused committed the offences, punishable under Sections 63 and 65 of the Copy Right Act, 1957.
3. Before the trial Court, on the side of the prosecution, eight witnesses were examined, besides marking four documents. Material Objects, such as, 358 CDs of various Tamil films, Samsung Writers, Monitor, Mouse, CPU and Speakers, have been marked as MO.1 to M6. After trial, the learned Chief Judicial Magistrate, Pondicherry, vide judgment, in C.C.No.84 of 2006, dated 03.04.2007, convicted the petitioners, under Section 63 of the Copy Right Act, 1957 and sentenced them to undergo six months of Simple Imprisonment, with a fine of Rs.10,000/- each, in default, to undergo six months of Simple Imprisonment. On appeal, the learned IInd Additional District and Sessions Judge, Pondicherry, by judgment, dated 13.08.2010, made in C.A.No.8 of 2007, confirmed the same.
4. Assailing the correctness of the impugned judgment, Mr.R.Karthikeyan, learned counsel for the revision petitioners, contended that both the Courts below have failed to consider that no evidence has been let in by the prosecution to prove that DVDs seized, contained the replica of the new movies and that the Court also did not view them. He also contended that none of the copy right owners were examined to prove that the DVDs seized contain the abovesaid movies. According to him, unless and until, prosecution proved its case that the DVDs seized, contain the movies, the offence of infringement of copy rights is not made out and therefore, submitted that both the Courts below erred in convicting the petitioners. He raised other grounds also.
5. On the above submission, Mr.Thangavel, learned Additional Public Prosecutor (Pondicherry) was heard. Going through the impugned judgments, learned Additional Public Prosecutor, fairly submitted that no evidence to the abovesaid effect, has been adduced by the prosecution.
6. Before adverting to the rival submissions, this Court deems it fit to have a cursory look at few provisions of the Copy Right Act, 1957.
7. Section 2(f) defines “cinematograph film” as, “any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films.”
8. Section 2(m) of the Act, defines, "infringing copy", which means,
“(i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film;
(ii) in relation to a cinematographic film, a copy of the film made on any medium by any m
