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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> <html xmlns="http://www.w3.org/1999/xhtml"> <head> </head> <body> <div style="font-family:Verdana, Geneva, sans-serif; font-size:12px; text-align:justify"> <table width="800" border="0" style="border:1px solid #ccc;padding:5px;" align="center" cellpadding="6" cellspacing="0"> <tr> <td align="left" valign="top"> High Court of Allahabad Affidavit could only be considered as piece of evidence, when statute permits so MANU/UP/1018/2017 - (08 May 2017) </td> </tr> <tr> <td align="left" valign="top">Boney Kapoor and Ors. v. State of U.P. and Ors.</td> </tr> <tr> <td align="left" valign="top" style="background-color:#FDEDCE">Applications under Section 482 of Code of Criminal Procedure, 1973 (Cr.PC) have been filed with prayer to quash proceedings of Criminal Complaint Case pending before Additional Chief Judicial Magistrate, under Section 51 read with Section 63 of Indian Copyright Act, 1957 and Section 403 read with Section 120-B of Indian Penal Code, 1860 (IPC), and summoning order as well as bailable warrant issued and non-bailable warrant passed by Additional Chief Judicial Magistrate. Complaint was filed on basis of infringement of copy right.

As was evident in instant matter, script "Raja Bhai IPS" is said to be prepared by opposite party No. 2, (complainant) and same is said to have been sent to Applicants for filmisation. Case of complainant is that, Applicants did not make film, when opposite party No. 2 contacted them. It is also case of prosecution that, stealing the theme and script of "Raja Bhai IPS" Applicants produced film "Wanted". Notice is also said to have been sent in regard to infringement of the copy right on behalf of opposite party No. 2. Complainant was not examined on oath on complaint. Only affidavit in support of complaint has been filed. Concerned Magistrate did not make any enquiry as required under provision of Section 202 of Cr. PC. Summoning order is passed without comparing/matching script of "Raja Bhai IPS" with script of film "Wanted". It is also evident from record that, C.D. of film wanted is available on record but no certificate as required under Evidence Act regarding the truthfulness of C.D. is filed in matter.

Complainant was not examined on oath as required under Section 200 of Cr. PC Settled legal position is that, affidavit could only be considered as piece of evidence when statute permit so. Nothing is mentioned in Sections 200 and 202 of Cr. PC to consider evidence filed in form of affidavit. If ratio laid down in case laws relied upon by applicants and language of Sections 200 and 202 Cr. PC are taken into consideration, it is aptly clear that, it is mandatory for complainant to examine himself on oath under Section 200 of Cr. PC. Thus, it can safely be held in this matter that, Magistrate while considering affidavit filed in support of complaint has committed gross illegality which resulted in miscarriage of justice.

Admittedly complaint was filed within territorial jurisdiction of district Meerut (State of U.P.), applicants were residing in State of Maharashtra, provision inserted in year 2005 under Section 202 of Cr. PC is mandatory in nature, no step was taken in this matter by Court concerned to comply with newly added provision of Section of 202 of Cr. PC, thus, on this score also summoning order under challenge or consequential order passed thereafter becomes illegal. Both parties have admitted that, provisions provided under Chapter XV of Cr. PC is equally applicable to complaint filed in respect of infringement of Copy Right Act also. There is no any distinct procedure provided under Copyright Act to deviate procedure prescribed under Cr. PC.

It might be possible that, theme of film "Wanted" and "Raja Bhai IPS" may be same and it was presented and picturised in complete new manner. Thus, in that situation, no question of violation of Copy Right would arise. Concerned Magistrate ought to have read script and theme of both films and also to peruse/compare the C.D. to form opinion whether there is any act of infringement/violation of Copyright. Since, no effort was made thus the opinion formed by concerned Magistrate about violation of Copyright by applicants is not based on any material and is not correct. Merely similarity in theme/script in two works, it cannot be held that there is infringement of the copy right.

It is also evident from record that, film "Wanted" is produced by S.K. Films Enterprises which is clear from certificate issued by Central Board of Films Certificate. Opposite party No. 2 filed complaint against B.S.K. Network and Entertainment. Nothing is mentioned in complaint that, how applicants are connected with S.K. Film Enterprises. This fact raised by applicants through their affidavit was also not specifically controverted. Thus, on this score also complaint filed by opposite party No. 2 against applicants cannot go on.

Pleas taken by Applicants in present application are acceptable. Applications under Section 482 of Cr. PC allowed. Impugned summoning order as well as entire proceedings of Complaint Case pending before Additional Chief Judicial Magistrate are quashed. Thus, applications are allowed.</td> </tr> <tr> <td align="left" valign="top" ></td> </tr> <tr> <td align="left" valign="top" >Tags : Complaint, Quashing</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr>  <td align="left" valign="top">Source : newsroom.manupatra.com</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr> <td align="left" valign="top">Regards</td> </tr> <tr> <td align="left" valign="top">Team Manupatra</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> </table> </div> </body> </html>