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.)
