Ani Technologies Private Limited Vs State of Karnataka (Karnataka High Court)
Facts- The petitioners are also known as Ola or Ola Cabs. The 2nd respondent is Lahari Recording Company, one of the music companies in India. The petitioners who run Ola cabs launched a feature in their cabs/taxis where television/display sets are fixed to the headrest of the front seat where popular songs are played. This feature is known in the cabs circle as Ola play and such cabs are known as Ola Prime. Noticing that several of the contents of music videos and songs belonging to several of the films whose music copyrights the 2nd respondent owns were being displayed in Ola Prime cabs under the feature Ola play and on the ground that Ola cabs are indulging in commercial exploitation of copyright of the music whose copyright is owned by the 2nd respondent without purchasing such copyright registered a complaint on 13-05-2017 alleging infringement of Copyright Act, 1957 (‘the Act’ for short). On registration of the said complaint before the Additional Commissioner of Police, investigation is directed to be conducted and an FIR came to be registered in Crime No.191 of 2017 alleging offences punishable under Sections 63 and 64 of the Act. At that juncture, the petitioners, the Company and the Directors of Ola Cabs have knocked the doors of this Court in the subject writ petition.
Conclusion-
Merely because a separate provision under Section 64 of the Act which depicts power of search and seizure by the Police is also found in the statute, it does not take away cognizability of the offence punishable under Section 63 of the Act.
The competent criminal Court can sentence an offender under Section 63 of the Act to three years imprisonment. Exact three years is a possibility in a given circumstance. Therefore, it would fall under Item No.2 of Schedule II of the Cr.P.C.
Therefore, the argument that it is a non-cognizable offence and the procedure adopted by the Police in registering the FIR of a non-cognizable offence without approval of the Magistrate is unacceptable.
FULL TEXT OF THE JUDGMENT/ORDER OF KARNATAKA HIGH COURT
The 1st petitioner/ANI Technologies Private Limited and its Directors are before this Court calling in question registration of FIR in Crime No.191 of 2017 and all further proceedings taken thereto.
2. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:
The petitioners are also known as Ola or Ola Cabs. The 2nd respondent is Lahari Recording Company, one of the music companies in India. The petitioners who run Ola cabs launched a feature in their cabs/taxis where television/display sets are fixed to the headrest of the front seat where popular songs are played. This feature is known in the cabs circle as Ola play and such cabs are known as Ola Prime. Noticing that several of the contents of music videos and songs belonging to several of the films whose music copyrights the 2nd respondent owns were being displayed in Ola Prime cabs under the feature Ola play and on the ground that Ola cabs are indulging in commercial exploitation of copyright of the music whose copyright is owned by the 2nd respondent without purchasing such copyright registered a complaint on 13-05-2017 alleging infringement of Copyright Act, 1957 (‘the Act’ for short). On registration of the said complaint before the Additional Commissioner of Police, investigation is directed to be conducted and an FIR came to be registered in Crime No.191 of 2017 alleging offences punishable under Sections 63 and 64 of the Act. At that juncture, the petitioners, the Company and the Directors of Ola Cabs have knocked the doors of this Court in the subject writ petition.
3. Heard learned Senior Counsel Sri C.V.Nagesh along with Mr. Mahesh S, learned counsel for the petitioners, Sri R.D.Renukaradhya, learned High Court Government Pleader representing the 1st respondent – State and learned counsel Sri M.S.Shyam Sundar representing the 2nd respondent/ complainant.
4. The learned senior counsel would submit that Section 63 of the Act is a non-cognizable offence and once it is held to be a non-cognizable offence, Police had no jurisdiction to investigate into the matter and would further submit that the complaint itself does not make out ay offence of infringement of copyright as the entire complaint narrates that the complainant believes that copyright is violated and in criminal jurisprudence there had to be evidence and documentation and not the belief of the complainant is his emphatic submission.
5. On the other hand, the learned counsel appearing for the complainant would contend that Section 63 cannot but be held to be a cognizable offence as the offence is punishable for a period up to 3 years and any offence punishable upto 3 years in terms of Schedule to the Code of Criminal Procedure, 1973, it becomes a cognizable offence and if it is a cognizable offence, no fault can be found in the investigation conducted.
Commercial exploitation of the copyright that is held by the complainant cannot be permitted as identical agreements are entered into between the petitioners and the other net-work whose copyright they have and would submit that the writ petition be dismissed and trial be continued against the petitioners.
6. I have given my anxious consideration to the submissions made by the learned senior counsel and the counsel for the 2nd respondent and have perused the material on record.
The Copyright Act, 1957:
7. Section 63 of the Act, when it was initially promulgated prescribed punishment for the offence of infringement of the copyright to be punishable with imprisonment, which extended to one year or fine or both. Therefore, the maximum punishment prescribed then was one year. The said provision of law underwent an amendment by the Amending Act 65 of 1984, the maximum offence punishable was changed from one year to three years. It is germane to notice the objects and reasons for bringing out said amendment.
“Piracy has become a global problem due to the rapid advances in technology. It has assumed alarming proportions all over the world and all the countries are trying to meet the challenge by taking stringent legislative and enforcement measures. The problem of piracy and the necessity for taking sufficient anti-piracy measures were also voiced by Members of Parliament at the time of the consideration of the Bill to amend the Copyright Act, 1957, last year.
2. Mainly there are three types of piracy, namely, piracy of the printed word, piracy of sound recordings and piracy of cinematograph films. The object of the pirate in all such cases is to make quick money and avoid payment of legitimate taxes and royalties. In respect of books, it is estimated that four hundred to five hundred titles are pirated every year in India and on each of the pirated titles, the loss to the Government in the form of tax evasion amounts approximately to Rs 11,000. Apart from books, recorded music and video cassettes of films and TV programmes are reproduced, distributed and sold on a massive scale in many parts of the world without any remuneration to the authors, artistes, publishers and producers concerned. The emergence of new techniques of recordings, fixation and reproduction of audio programmes, combined with the advent of video technology have greatly helped the pirates. It is estimated that the losses to the film producers and other owners of copyright amount to several crores of rupees. The loss to Government in terms of tax evasion also amounts to crores of rupees. In addition, because of the recent video boom in the country, there are reports that uncertified video films are being exhibited on a large scale. A large number of video parlours have also sprung up all over the country and they exhibit such films recorded on video tapes by charging admission fees from their clients. In view of these circumstances, it is proposed to amend the Copyright Act, 1957, suitably to combat effectively the piracy that is prevalent in the country.”
(Emphasis supplied)
It is on the aforesaid objects and reasons, Section 63 of the Act was amended by way of substitution. The Section as it stands today reads as follows:
“63. Offence of infringement of copyright or other rights conferred by this Act.—Any person who knowingly infringes or abets the infringement of—
(a) the copyright in a work, or
(b) any other right conferred by this Act except the right conferred by Section 53-A,
shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:
Provided that where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.
Explanation.—Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section.
Section 64 is also germane to be noticed, it reads as follows:
“64. Power of police to seize infringing copies.—(1) Any police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offence under Section 63 in respect of the infringement of copyright in any work has been, is being, or is likely to be, committed, seize without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable, be produced before a Magistrate.
(2) Any person having an interest in any copies of a work or plates seized under sub-section (1) may, within fifteen days of such seizure, make an application to the Magistrate for such copies or plates being restored to him and the Magistrate, after hearing the applicant and the complainant and making such further inquiry as may be necessary, shall make such order on the application, as he may deem fit.”
(emphasis supplied)
The embargo upon the Police for registering a FIR and conducting investigation into a non-cognizable offence is under Section 155 of the Cr.P.C. Section 155 of the Cr.P.C. reads as follows:
“155. Information as to non-cognizable cases and investigation of such cases.—(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.”
(emphasis supplied)
In terms of Section 155(1) of the Cr.P.C., whenever an informant registers a complaint before the jurisdictional Police Officer in-charge of the police station, if it is a non-cognizable offence, the Police shall refer the informant to the Magistrate and once the Magistrate gives his nod for investigation, it is only then, the Police would get a right to investigate into the matter. The Police do not have sweeping powers even to register and investigate non-cognizable offence.
8. The offences narrated in penal provisions either under the Copyright Act or under any enactment, if read to be cognizable, there should be no ambiguity with regard to the jurisdiction of the Police to entertain the complaint and register a FIR or investigate into the matter. In cases where penal provisions do not clearly indicate whether the offences are cognizable or non-cognizable, the lis will have to be resolved by referring to the Schedule appended to the Cr.P.C. Schedule-II to the Code reads as follows:
II. CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS
