HASMUKHBHAI C PANCHAL CASE

COMMENT: 1.The Case Pertains to Quashing of Criminal Complaint of the offences for infringement of Copyright.

2.         The FIR was lodged on the alleged art work of SPARE PARTS of Hyundai. However the Hon’ble Court has quashed the criminal complaints on the ground the no case for infringement of copyright of Spare Parts of Hyundai has been prima facie made out. Relevant portion is as follows.

Considering the allegations levelled in the FIR, the same relate to the spare-parts of the Hyundai Company and it is nowhere stated about the owner or author and in what capacity respondent No.2 has lodged the FIR. Apart from that, even if, the FIR is taken at its face value, it refers to items, which do not fall within the artistic work as defined under Section 2(c) of the Copyright Act, 1957. It cannot be said that the spare-part is literal work or musical work. It is not disclose that the spare part is an artistic work or any other such work that the provisions of Copyright Act, 1957 would apply. The impugned FIR also does not disclose that if respondent No.2 has acquired any other right conferred under the provisions of the Copyright Act, 1957 and therefore, provisions of Sections 63 and 65 of the Copyright Act, 1957 would not be applicable on bare reading of the allegations levelled in the First Information Report at its face value. Therefore, this Court is of the opinion that prima facie no case is made out under Sections 63 and 65 of the Copyright Act, 1957, even if it is taken at its face value. (Para 8).

                           THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION

(FOR QUASHING & SET ASIDE FIR/ORDER) NO. 8723 of 2013

HONOURABLEMR.JUSTICER.M.CHHAYA

HASMUKHBHAI C PANCHAL &

1....Applicant(s)

Versus

STATE OF GUJARAT &

2....Respondent(s) =========================================================== Appearance: MR GM AMIN, ADVOCATE for the Applicant(s) No. 1 – 2

MR ALKESH SHAH, APP for the Respondent(s) No. 1 and 3

RULE SERVED for the Respondent(s) No. 2

============================================================ CORAM:

HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 02/12/2013

ORAL JUDGMENT

1. Heard Mr.G.M.Amin, learned counsel for the applicants, and Mr.Alkesh Shah, learned Assistant Public Prosecutor for respondent Nos.1 and 3-State. Though served none appears for respondent No.2-First Informant.

2. By way of the present application under Section 482 of the Code of Criminal Procedure, 1973 (the Code for short), the applicants have prayed for quashing and setting aside F.I.R being C.R.No.II-3164 of 2013, registered at Naroda Police Station, Ahmedabad, for the alleged offences punishable under Sections 63 and 65 of the Copyright Act, 1957.

3. Learned counsel for the applicants has taken this Court to the factual matrix arising out of the application and also taken this Court through the impugned FIR and contended that the allegations leveled in the impugned FIR are on basis of the fact that the complainant himself is an authorized person to carry out all procedure of infringement of any copyright. The allegations against the applicants are that the applicants are selling duplicate spare-parts of the Hyundai Company. It is pointed out that even though respondent No.2-First Informant was neither having any authorization under the law nor any assignment in his favour, with the help of police without any warrant ransacked the shops of the applicants and used abusive language upon the applicants and took the movable valuables.

4. Learned counsel for the applicants further contended that on reading the impugned FIR as it is, no evidence as alleged has been made out. He further contended that the Copyright Act is not applicable in the present case for sale of the automobile goods and the goods in which the applicants deal with i.e. automobile parts, provisions of the Copyright Act is not attracted at all.

5. Learned counsel for the applicants further pointed out that respondent No.2-First Informant has not produced anything on record that to show that he is authorized person to file the complaint on behalf of Hyundai Company and therefore, he contended that the First Information Report is an abuse of process of Court and law, and therefore, the same is required to be quashed by exercising inherent jurisdiction under Section 482 of the Code. He further relied upon the judgment of this Court in the case of Binita Rahul Shah Vs. State of Gujarat reported in 2009(3) GLR 2688 and contended that the ratio laid down in the said case squarely applies to the facts of the present case. He further pointed out that in a similarly situated case of the facts as well as law, this Court has quashed the complaint as prayed for.

6. Per contra, Mr.Alkesh Shah, learned Assistant Public Prosecutor for respondent Nos.1 and 3, has submitted that the impugned FIR is for the alleged offences punishable under Sections 63 and 65 of the Copyrights Act, 1957, however it may be noted that learned APP has not been able to point out that the allegations leveled in the First Information Report relate to any of the items, which are envisaged under the purview and ambit of the Copyright Act, 1957. Though served, none appears for respondent No.2-First Informant. No other and further submissions are made by learned counsel for the parties.

7. Considering the aforesaid submissions made by learned counsel for the parties and on perusal of the record, it may be noted that the First Information Report is lodged by respondent No.2 in his capacity as Investigating Officer of IPR Vigilance Indian Company. First Information Report does not disclose as to which capacity respondent No.2 has lodged the impugned FIR.

Section 2(c) and (d) of the Copyright Act, 1957 reads as under:- (c) "Artistic work" means,-

(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;

(ii) a [work of architectural]; and (iii)any other work of artistic craftsmanship; (d) "author" means, -

(i) in relation to a literacy or dramatic work, the author or the work; (ii) in relation to a musical work, the composer; (iii) in relation to an artistic work other than a photograph, the artist; (iv) in relation to a photograph, the person taking the photograph; (v) in relation to a cinematography film or sound recording, the procedure; and (vi) in relation to any literacy, dramatic, musical or artistic work which is computer-generated, the persons who causes the work to be created".

8. Considering the allegations levelled in the FIR, the same relate to the spare-parts of the Hyundai Company and it is nowhere stated about the owner or author and in what capacity respondent No.2 has lodged the FIR. Apart from that, even if, the FIR is taken at its face value, it refers to items, which do not fall within the artistic work as defined under Section 2(c) of the Copyright Act, 1957. It cannot be said that the spare-part is literal work or musical work. It is not disclose that the spare part is an artistic work or any other such work that the provisions of Copyright Act, 1957 would apply. The impugned FIR also does not disclose that if respondent No.2 has acquired any other right conferred under the provisions of the Copyright Act, 1957 and therefore, provisions of Sections 63 and 65 of the Copyright Act, 1957 would not be applicable on bare reading of the allegations levelled in the First Information Report at its face value. Therefore, this Court is of the opinion that prima facie no case is made out under Sections 63 and 65 of the Copyright Act, 1957, even if it is taken at its face value.

9. This Court (Coram: Hon'ble Mr.Justice D.A.Mehta, as his Lordship then was) in the case of Binita Rahul Shah Vs. State of Gujarat reported in 2009(3) GLR 2688, has observed thus:- "19. Section 63 of the Copyright Act states that any person who knowingly infringes or abets the infringement of the Copyright in a work shall be punishable with infringement etc. The definition of the term infringing copy as appearing in section 2(m) of the Copyright Act reads as under : 2(m) 'infringing copy' 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 cinematographic film, a copy of the film made on any medium by any means;

(iii)in relation to a sound recording, any other recording embodying the same sound recording, made by any means; (iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer's right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance, if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act;

20. A plain reading makes it clear that the principal work has to be either a literary, dramatic, musical, or artistic work; or should be a cinematographic film; or a sound recording, or a programme or performance in which a broadcast reproduction right or a performer's right subsists under the provisions of Copyright Act. In the facts of the present case, admittedly the provisions cannot be attracted, much less any ingredient thereof is shown to have been satisfied even prima facie. The Court is not concerned in these proceedings whether any violation has occurred under the Provisions of Designs Act, because that is not even the case of the complainant. The settled legal position cannot be understood to mean laying down a proposition of law that the Court in these proceedings is precluded from even a plain reading of the relevant provisions to prima facie see whether any offence can be said to have been committed or not." The ratio laid down by this Court in the above referred case squarely applies in the present case.

10. Learned counsel for the applicants has also relied upon the application filed by the applicants before the Competent Jurisdictional Court, however, the said case, as per the record of the application is pending before the Competent Court. This Court restrains itself from making any elaboration on the said aspect.

11. Considering the submissions made by learned counsel for the parties and on perusal of the impugned FIR, prima facie, no case is made out against the applicants for the alleged offence under Sections 63 and 65 of the Copyright Act, 1957 and in view of the ratio laid down by this Court in the case of Binita Rahul Shah (supra), this Court is of the opinion that continuation of criminal proceedings against the applicants would amount to an abuse of process of law and Court. Hence, to secure the ends of justice, the impugned FIR is required to be quashed and set aside in exercise of inherent power under Section 482 of the Code.

12. For the foregoing reasons, the present application is hereby allowed. The impugned FIR registered at Naroda Police Station, Ahmedabad, being C.R.No.II-3164 of 2013 as well as all other consequential proceedings arising out of the said FIR are hereby quashed. Rule is made absolute to the aforesaid extent. (R.M.CHHAYA, J.)