QUASHING OF FIR ON THE BASIS OF SETTLEMENT ARRIVED BETWEEN THE PARTIES

COMMENT: In this case, the Hon’ble Delhi High has returned the following 2 findings.

THIS CASE DEALS WITH THE ISSUE OF QUASHING OF FIR ON THE BASIS OF SETTLEMENT ARRIVED AT BETWEEN THE PARTIES.

1. Certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated.

1. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a Crl. M.C. 3552/2013 Page 5 position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.

COMPLETE TEXT OF JUDGEMENT:

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 3552/2013 & Crl. M.A. No. 656/2014

Date of Decision : 19th February, 2015

RAJESH PARSHAD ..... Petitioner

Through: Mr. Ravinder Aggarwal & Mr. S. K.

Chaudhary, Advocates

Versus

STATE ..... Respondent

Through: Mr. Parveen Bhati, Additional Public

Prosecutor for State with SI Yogesh

Kumar and Mr. P.N. Diwan,

Authorized Representative of

Respondent No. 2

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

JUDGMENT

(ORAL) Quashing of FIR No.311/2001, under Sections 420 of IPC and 78/79 of the Trade and Merchandise Marks Act, 1958 and Section 63 of the Indian Copy Rights Act, 1957, registered at police station Kotwali, Delhi is sought on the strength of amicable resolution of the dispute between the parties vide Memorandum of Understanding of 21 st August, 2013.

Notice.

Mr. Parveen Bhati, learned Additional Public Prosecutor for respondent-State accepts notice and submits that Mr. P.N. Diwan, Authorized Representative of respondent No.2, present in the Court, is the first-informant of the FIR in question. Authorized Crl. M.C. 3552/2013 Page 1 Representative of second respondent affirms the contents of his affidavit and submits that the dispute between the parties stands settled, so proceedings out of the FIR in question be brought to an end.

Learned Additional Pubic Prosecutor for respondent-State on instructions from SI Yogesh Kumar, Investigating Officer of this case, submits that charge sheet for the offence of under Section 420 of the IPC and Trademarks and Copy Rights Act has been filed.

In „Gian Singh Vs. State of Punjab‟ (2012) 10 SCC 303 Apex Court has recognized the need of amicable resolution of disputes in cases like the instant one, by observing as under:-

"However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated."

The aforesaid dictum stands reiterated by the Apex Court in a recent judgment in Narinder Singh v. State of Punjab (2014) 6 SCC

1. The pertinent observations of the Apex Court in Narinder Singh (Supra) are as under:-
2. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences Crl. M.C. 3552/2013 Page 3 committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons Crl. M.C. 3552/2013 Page 4 used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a Crl. M.C. 3552/2013 Page 5 position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime."

Since the subject matter of this FIR stands mutually and amicably settled between parties, therefore, continuance of proceedings arising out of the FIR in question would be an exercise in futility.

Accordingly, this petition is allowed subject to cost of Rs. 1,00,000/- to be equally borne by petitioner and respondent no. 2 and be deposited with Prime Minster‟s Relief Fund within four weeks from today. Upon placing on record the receipt of cost, FIR No.311/2001, under Sections 420 of IPC and 78/79 of the Trade and Merchandise Marks Act, 1958 and Section 63 of the Indian Copy Rights Act, 1957, registered at police station Kotwali, Delhi and the proceedings emanating there from shall stand quashed qua petitioner.

This petition and application are accordingly disposed of.

(SUNIL GAUR)

JUDGE

FEBRUARY 19, 2015

rs

Crl. M.C. 3552/2013

Crl. M.C. 3552/2013

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.)