Om Prakash-VII JUDGMENT
Om Prakash-VII, J.
1. Both the aforesaid applications are connected with each other and arises out of the same complaint cases and as such the same are being decided by a common judgment.
2. The aforesaid Applications U/S 482 Cr.P.C. have been filed with the prayer to quash the proceedings of Criminal Complaint Case No. 4492 of 2010 (Birbal Singh Rana Vs. Boney Kapoor and others) pending before the Additional Chief Judicial Magistrate, Court No. 4, Meerut under Section 51 read with Section 63 of Indian Copyright Act, 1957 and Section 403 read with Section 120-B IPC, Police Station Nauchandi, district Meerut and summoning order dated 17.7.2010 as well as bailable warrant issued on 15.8.2010 and non bailable warrant dated 18.10.2010 passed by the Additional Chief Judicial Magistrate, Court No. 4, Meerut.
3. Heard Sri Imran Ullah, learned counsel for the applicants, Sri P.S. Pundir, learned counsel for the opposite party No. 2 and Sri R.D. Yadav, learned A.G.A.
4. Submission of the learned counsel for the applicants is that applicants are innocent and have not committed the present offence. Complaint was filed on the basis of infringement of the copyright. Notice said to have been sent to the applicants was replied but this fact was suppressed. Entire fact had been made clear by the applicants in the reply itself but present complaint was filed with a view to extract money from the applicants. Referring to the certificate issued by the Board it was also argued that film "Wanted" was produced by the S.K. Films Enterprises but the opposite party No. 2, complainant, filed complaint against B.S.K. Network and Entertainment. Thus it was argued that on this ground itself the complaint cannot continue. Further submission is that learned trial court passed the summoning order without applying judicial mind only on the basis of affidavit filed in support of the complaint under Section 200 Cr.P.C. It is also argued that until and unless specific provisions in the statute itself is provided to take the evidence on the basis of affidavit or court permit to adduce the evidence in that particular manner, then and there only the affidavit cannot be taken into consideration as a piece of evidence. Referring to the language used in Section 200 and 202 Cr.P.C. it was further argued that it is mandatory to record the statement of the complainant under Section 200 Cr.P.C. on oath. Learned Magistrate did not enter into the enquiry contemplated under Section 202 Cr.P.C. The applicants were residing beyond the territorial jurisdiction of the court concerned, thus enquiry was must. Further submission is that until and unless script of "Raja Bhai IPS" was compared with the script/theme of the film "Wanted", no opinion about the prima facie infringement of the copyright could be formed. Referring to the summoning order passed in the matter learned counsel appearing for the applicants also argued that summoning order is passed only on the basis of averment made in the affidavit. Concerned Magistrate did not take initiative to compare the script of "Raja Bhai IPS" and "Wanted". Submission is also that courts at Meerut had no jurisdiction in the matter as the notice was said to be sent from the address of Moradabad. Thus on this score also the complaint was not maintainable. Lastly it was submitted that film "Wanted" is the Hindi remake of Telugu Film "Pokiri".
5. In support of his submissions learned counsel for the applicants placed reliance on the following case laws:
1. R.G. Anand Vs. Delux Films reported in MANU/SC/0256/1978 : 1978 Law Suit (SC) 205.
2. K. Venkataramaiah and others Vs. Katterao S. Deshpande reported in MANU/KA/7413/2007 : 2008 Cri.L.J. 1547.
3. National Bank of Oman Vs. Barakara Abdul Aziz and another reported in MANU/SC/1123/2012 : (2013) 2 SCC (Cri.) 731.
4. Vijay Dhanuka and others Vs. Najima Mamtaj and others reported in MANU/SC/0251/2014 : (2015) 1 SCC (Cri) 479.
5. K.S. Joseph Vs. Philips Carbon Black Limited and another reported in MANU/SC/1510/2016 : (2017) 1 SCC (Cri) 270.
6. Per contra, learned counsel appearing for the opposite party No. 2 as well as learned A.G.A. argued that there is no bar in the Cr.P.C. to take the evidence on the affidavit hence evidence adduced in the form of affidavit under Section 200 Cr.P.C. can be considered at this. Since sufficient material was filed along with the affidavit hence there was no need to adduce further evidence under Section 202 Cr.P.C. It was further argued that prima facie case is made out. Merely on the basis that enquiry was not made in compliance of the provision of Section 202 Cr.P.C., summoning order cannot be held to be illegal. Further submission is also that copy of the said script had already been sent to the applicants but applicants refused to make a film. Script was also not returned but on the basis of same script changing the name film "Wanted" was produced. Therefore, a prima facie case of the infringement of the copyright is made out as the opposite party No. 2 already got registered the title "Raja Bhai IPS" with the competent authority and he possess the copyright of the same.
7. Learned counsel appearing for the opposite party No. 2 in support of his submission placed reliance on the following case laws:
Iris Computers Ltd. Vs. Askari Infotech Pvt. Ltd. reported in Laws MANU/SC/0331/2013 : (SC) 2013 1 106.
8. I have considered the rival submissions and gone through the entire record as also the case laws relied upon by the parties.
9. As is evident in this matter, script "Raja Bhai IPS" is said to be prepared by the opposite party No. 2, (the complainant) and same is said to have been sent to the applicants for filmisation. Case of the complainant is that applicants did not make film when the opposite party No. 2 contacted them. It is also the case of the prosecution that stealing the theme and script of the "Raja Bhai IPS" the applicants produced the film "Wanted". Notice is also said to have been sent in regard to the infringement of the copyright on behalf of the opposite party No. 2. Complainant was not examined on oath on the complaint. Only affidavit in support of complaint has been filed. Concerned Magistrate did not make any enquiry as required under the provision of Section 202 Cr.P.C. Summoning order is passed without comparing/matching the script of "Raja Bhai IPS" with the script of the film "Wanted". It is also evident from the record that C.D. of the film wanted is available on record but no certificate as required under the Evidence Act regarding the truthfulness of the C.D. is filed in the matter (Annexure No. SA-1).
10. Before discussing the submissions of the learned counsel for the parties, it will be useful to quote the law laid down in the cases relied upon by the learned counsel for the applicants:
11. Hon'ble Supreme Court in R.G. Anand (Supra) case in para No. 46 has held as under:-
"46. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:
1. There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work.
2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendants work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to seeing the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.
6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.
7. Where however the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, a wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved."
12. In National Bank Of Oman (Supra) in para Nos. 9 and 10, the Hon'ble Supreme Court has held as under:
"The duty of a Magistrate receiving a complaint is set out in Section 202 of the Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 of the Cr.P.C. is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient grounds for him to proceed further. The scope of enquiry under Section 202 of the Cr.P.C. is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint-(i) on the materials placed by the complainant before the Court (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made our; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.
Section 202 of the Cr.P.C. was amended by the Cr.P.C. (Amendment Act 2005) and the following words were inserted:
"and shall, in a case where the accused is residing at a place beyond the area in which he exercises jurisdiction"
The notes on clauses for the above-mentioned amendment read as follow:
"False complaints are filed against persons residing at far off places simply to harass them. In order to see that the innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused."
The amendment has come into force w.e.f. 23.6.2006 vide notification No. S.O. 923(E) : MANU/HOME/0039/2006 dated 21.6.2006."
13. The Hon'ble Supreme Court in the case of Vijay Dhanuka (Supra) in para No. 10 to 14 has held as under:
"10. However, in a case in which the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction whether it would be mandatory to hold inquiry or the investigation as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding, is the question which needs our determination. In this connection, it is apt to refer to Section 202 of the Code which provides for postponement of issue of process. The same reads as follows:
"202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made-
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present, if any, have been examined on oath under Section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."
11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process "in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not.
12. The words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" was inserted by Section 19 of Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23rd of June, 2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows:
"False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused."
The use of the expression 'shall' prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word "shall" in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression "shall" and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.
13. In view of the decision of this Court in the case of Udai Shankar Awasthi v. State of Uttar Pradesh, MANU/SC/0018/2013 : (2013) 2 SCC 435, this point need not detain us any further as in the said case, this Court has clearly held that the provision aforesaid is mandatory. It is apt to reproduce the following passage from the said judgment:
"40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 Cr.P.C., though the appellants were outside his territorial jurisdiction. The provisions of Section 202 Cr.P.C. were amended vide the Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases."
14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word "inquiry" has been defined under Section 2(g) of the Code, the same reads as follows:
"2. (g)"inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;
It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or Court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any.
This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code."
14. If the law laid down in the case laws relied upon by the learned counsel for the parties are confronted with the submission raised by the learned counsel for the parties and also the facts of the present matter, it emerges that complainant was not examined on oath as required under Section 200 Cr.P.C. Settled legal position is that affidavit could only be considered as piece of evidence when the statute permit so. It will be pertinent to mention at this stage that under the Negotiable Instruments Act legislature incorporating specific provisions made the affidavit admissible and waived from examining the complainant on oath. In this respect it will also be useful to take into account the provisions of Section 296 of the Code of Criminal Procedure in which under the statute itself liberty has been given to file the affidavit in regard to the evidence of formal character witnesses. Nothing is mentioned in Section 200 and 202 Cr.P.C. to consider the evidence filed in the form of affidavit. If the ratio laid down in the case laws relied upon by the applicants and the language of Section 200 and 202 Cr.P.C. are taken into consideration it is aptly clear that it is mandatory for the complainant to examine himself on oath under Section 200 Cr.P.C. Thus it can safely be held in this matter that learned Magistrate while considering the affidavit filed in support of the complaint has committed gross illegality which resulted in miscarriage of justice.
15. Second submission, as has been raised by the learned counsel regarding compliance of the provisions of Section 202 Cr.P.C. on the point of enquiry is concerned, admittedly complaint was filed within the territorial jurisdiction of the district Meerut (State of U.P.), applicants were residing in the State of Maharashtra, the provision inserted in the year 2005 under Section 202 Cr.P.C. is mandatory in nature, no step was taken in this matter by the court concerned to comply with the newly added provision of Section 202 Cr.P.C., thus, on this score also summoning order under challenge or the consequential order passed thereafter becomes illegal. It is made clear at this stage itself that both the parties have admitted that provisions provided under Chapter XV of Cr.P.C. is equally applicable to the complaint filed in respect of infringement of the Copyright Act also. There is no any distinct procedure provided under the Copyright Act to deviate the procedure prescribed under the Cr.P.C.
16. Learned counsel for the applicants further submits that owner and director of the S.K. Film Enterprises entered into an agreement with the owner of the script of "Pokiri" a southern language film to produce and remake the same in Hindi language. Plea is also that they had paid to the owner of "Pokiri" film a handsome amount in this regard. If the plea taken by the applicants are confronted with the pleas of the complainant, the applicants' case appears more probable. A perusal of the summoning order also goes to show that no effort was made on the part of the concerned Magistrate to check/match/compare the theme of the story "Raja Bhai IPS" and film "Wanted". Thus the summoning order passed in the matter cannot sustain. Hon'ble Supreme Court in R.G. Anand (Supra) case has framed certain guidelines regarding infringement of copyright. 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 Copyright would arise. Concerned Magistrate ought to have read the script and theme of both the films and also to peruse/compare the C.D. to form opinion whether there is any act of infringement/violation of the Copyright. Since no effort was made thus the opinion formed by the concerned Magistrate about the violation of the Copyright by the applicants is not based on any material and is not correct. Merely similarity in the theme/script in the two works it cannot be held that there is infringement of the copyright.
17. It is also evident from the record that film "Wanted" is produced by the S.K. Films Enterprises which is clear from the certificate issued by the Central Board of Films Certificate (Annexure No. 3). Opposite party No. 2 filed the complaint against the B.S.K. Network and Entertainment. Nothing is mentioned in the complaint that how the applicants are connected with the S.K. Film Enterprises. This fact raised by the applicants through their affidavit was also not specifically controverted. Thus on this score also the complaint filed by the opposite party No. 2 against the applicants cannot go on.
18. On the basis of above discussion, this Court is of the view that pleas taken by the applicants in this application are acceptable. Applications under Section 482 Cr.P.C. having some merit are liable to be allowed. Impugned summoning order as well as entire proceedings of the aforesaid Complaint Case No. 4492 of 2010 (Birbal Singh Rana Vs. Boney Kapoor and others) pending before the Additional Chief Judicial Magistrate, Court No. 4, Meerut under Section 51 read with Section 63 of Indian Copyright Act, 1957 and Section 403 read with Section 120-B IPC, Police Station Nauchandi, district Meerut are liable to be quashed.
19. Thus the applications are allowed. Summoning order dated 17.7.2010 as well as entire proceedings of Complaint Case No. 4492 of 2010 (Birbal Singh Rana Vs. Boney Kapoor and others) pending before the Additional Chief Judicial Magistrate, Court No. 4, Meerut under Section 51 read with Section 63 of Indian Copyright Act, 1957 and Section 403 read with Section 120-B IPC, Police Station Nauchandi, district Meerut are hereby quashed.
20. A copy of this order be placed on the record of Application U/S 482 No. 33872 of 2010.
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