THE HONOURABLE SMT G. ANUPAMA CHAKRAVARTHY
CRIMINAL PETITION No.2788 of 2023
ORDER:
This petition is filed under Section 482 of Code of Criminal Procedure (for short 'Cr.P.C.') by the petitioner/accused seeking to quash the proceedings in Crime No.1561 of 2022, on the file of P.S. Cyber Crime Sation, Hyderabad, registered under Sections 385 and 506 of Indian Penal Code (for short 'I.P.C.') and Sections 63 and 65 of the Copy Right Act, 1957.
2. The facts culled out from the complaint are that respondent No.2/de-facto complainant is an author by profession and has written and published around thirty three (33) novels on Amazon online publishing platform, that the story line, scheme of story, ideas, plot, themes and characters in each of her novels is original and unique, which was the selling point to all her readers and this has enabled her to get good readership. It is alleged by the complainant that the petitioner, who is also an author, has 2 GAC,J Crl.P.No.2788 of 2023 been stealing her intellectual property by copying her work and the petitioner had blocked all communications with respondent No.2 since August, 2021. It is further alleged that the petitioner was threatening, harassing, and intimidating respondent No.2. At the instance of the respondent No.2, the 1st respondent lodged an FIR against the petitioner under Sections 385 and 506 of the I.P.C. on the ground that the petitioner has threatened and harassed respondent No.2 through Email and WhatsApp. Respondent No.2 herself having admitted the fact that the petitioner has blocked and ceased all communications with respondent No.2 since August 2021, is now maliciously giving the colour of extortion to the legal notice sent by the Petitioner, who after having done her due diligence and following the due process of law has sent a legal notice to respondent No.2 to cease and desist posting defamatory posts, seeking an unconditional apology and claimed the damages of Rs.25,00,000/- (Rupees Twenty Five Lakhs Only) from respondent No.2. It appears that after the FIR was lodged, Sections 63 and 65 of the Copyright Act, 1957 3 GAC,J Crl.P.No.2788 of 2023 were sought to be added to the FIR, however, there is no order in support thereof.
3. It is the case of the petitioner that she is an author and has been self-publishing her literary works and contributing to the stories of various novels published by means of traditional publishing and self-publishing since the year 2016. The Petitioner publishes her literary works under her own name i.e., Sapna Bhog in the romance genre. The Petitioner through her original authorship of various forms of literary works, developed a distinct style of writing, and her various works have been featured on the best seller lists of Amazon on many independent occasions. Her hard work, excellence, has garnered immense amount of goodwill, reputation, recognition and appreciation across a worldwide readership in association with her authorship of her literary works. The petitioner being the original author of her literary works, enjoys copyright over them. 4
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4. It is further the case of the petitioner that she has published her second title in "Bond of Brothers Series", "My Rebel" on 26th April, 2022. Pursuant to the publication of the said book, respondent No.2 on 08.05.2022 published statements on social media platform, predicting that the works of the petitioner that had yet been unwritten and therefore unreleased to the general public for consumption would be copied and that the existing second title "My Rebel" is also copied from her. Respondent No.2 further continued to post on social media baseless comparisons amongst the books of the petitioner and respondent No.2 and alleged that the petitioner was infringing her copyrights. Further, respondent No.2/de-facto complainant again from 28.07.2022 to 02.08.2022 published several statements/posts/stories on social media platforms and made false allegations of copying the literary work against the petitioner, thereby causing loss of reputation, immense mental and physical agony to the petitioner. Thus, to condemn the actions of respondent No.2 the petitioner addressed a legal notice, dated 08.08.2022 calling upon 5 GAC,J Crl.P.No.2788 of 2023 respondent No.2 to cease and desist posting such defamatory messages, to withdraw or pull down all such defamatory online statements or posts, to tender an unconditional apology and also to pay damages of Rs.25,50,000 (Twenty Five Lakhs Fifty Thousand), towards injury/loss of reputation - Rs.10,00,000/- (Rupees Ten Lakhs only); mental torture/mental agony - Rs.10,00,000/- (Rupees Ten Lakhs only), loss of family honour - Rs.5,00,000/- (Rupees Five Lakhs only); and legal assistance - Rs.50,000/- (Rupees Fifty Thousand).
5. Respondent No.2 instead alleged copyright infringement of her works and to the utter shock and surprise of the petitioner, published another statement on 14.09.2022 on social media, stating that she had lodged FIR against the petitioner for copyright infringement and other offences and posted more than hundred (100) posts against the petitioner, defaming her and mutilating her work by publishing excerpts of her work on social media and alleging copyright infringement without any basis. 6
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6. It is further contended by the learned counsel for the petitioner that in order to restrain respondent No.2 from either directly or indirectly, in any form, publishing or making any statement alleging copyright infringement or making any groundless threats of litigation against the petitioner, the petitioner was constrained to file a suit for declaration and injunction before the District Judge, Pune which was numbered as Civil Suit No.19 of 2022. In fact, it is the case of respondent No.2 that the petitioner has blocked respondent No.2 since August, 2021 and there is no contact between both of them, and therefore how can respondent No.2 state that petitioner is guilty of any intimidation.
7. It is submitted that, the District Judge, Pune after hearing the petitioner and respondent No.2 and considering the material on record, gave an opinion that the petitioner's work was neither a reproduction nor a substantive reproduction of respondent No.2's literary work 7 GAC,J Crl.P.No.2788 of 2023 as claimed and observed that the threat of litigation about copyright infringement by the de-facto complainant is to be considered as a groundless threat and petitioner's literary work had been mutilated by respondent No.2 in her posts causing immense injury and damage to the petitioner and granted temporary injunction vide order, dated 21.02.2023 in favour of the petitioner restraining respondent No.2 from either directly or indirectly, in any form, publishing or making any statement alleging copyright infringement against the petitioner till disposal of the suit. A copy of the said order was uploaded online on 08.03.2023 in Civil Suit No.19 of 2022.
8. It is further contended by the learned counsel for the petitioner that inspite of the said order, respondent No.2 filed the present compliant against the petitioner making allegations of copy rights on social media i.e., subsequent to the order of temporary injunction. The FIR which was filed under Sections 385 and 506 of Indian Penal Code and Sections 63 and 65 of Copy Rights Act has no application 8 GAC,J Crl.P.No.2788 of 2023 and the said FIR has been filed only to harass the petitioner.
9. It is also contended by the learned counsel for the petitioner that the petitioner has received a notice under Section 41-A Cr.P.C., dated 09.03.2023 and the petitioner will cooperate with the investigation or any compliances as required. It is further contended that it is purely a civil dispute between the parties and therefore it is a fit case to quash the proceedings against the petitioner for the offences punishable under Sections 385 and 506 of Indian Penal Code and Sections 63 and 65 of Copy Rights Act.
10. Learned counsel for the petitioner relied on the judgment of the Hon'ble Apex Court in the case of Neelu Chopra and another Vs. Bharti 1 and brought to the notice of this court the paragraph Nos.9 and 10, which read as under:
"9. In order to lodge a proper complaint, mere mention of the sections and the language of those 1 (2009) 10 Supreme Court Cases 184 9 GAC,J Crl.P.No.2788 of 2023 sections is not the be all and end all of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence.
10. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of the process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein, on the basis of vague and general complaint which is silent about precise acts of the appellants."
In the above case, the Lordships have held that mere mention of the sections and language is not sufficient and the contents of the complaint should disclose the exact role played by the parties in commission of the offence. Otherwise, it would be abuse of process of law.
10.1 The learned counsel for the petitioner relied on another judgment of the Hon'ble Apex Court in the case of Usha Chakraborty and another Vs. State of West Bengal and another 2 and brought to the notice of this Court to paragraph Nos.15 and 16, which read as under: 2 2023 SCC OnLine SC 90 10 GAC,J Crl.P.No.2788 of 2023 "15. The materials on record pertaining to the said pleadings instituted in the Civil Suit, produced in this proceeding would reveal that the respondent was in fact ousted from the membership of the trust. In the counter affidavit filed in this proceeding, the respondent has virtually admitted the pendency of the suit filed against his removal from the post of Secretary and the trusteeship and its pendency. The factum of passing of adverse orders in the interlocutory applications in the said Civil Suit as also the prima facie finding and conclusion arrived at by the Civil Court that the respondent stands removed from the post of Secretary and also from the trusteeship are also not disputed therein. Then, the question is why would the respondent conceal those relevant aspects? The indisputable and undisputed facts (admitted in the counter-affidavit by the respondent) would reveal the existence of the civil dispute on removal of the respondent from the post of Secretary of the school as also from the trusteeship. Obviously, it can only be taken that since the removal from the office of the Secretary and the trusteeship was the causative incident, he concealed the pendency of the civil suit to cover up the civil nature of the dispute.
16. By non-disclosure the respondent has, in troth, concealed the existence of a pending civil suit between him and the appellants herein before a competent civil court which obviously is the causative incident for the respondent's allegation of perpetration of the aforesaid offences against the appellants. We will deal with it further and also its impact a little later. There cannot be any doubt with respect to the position that in order to cause registration of an F.I.R. and consequential investigation based on the same the petition filed under Section 156(3), Cr.P.C., must satisfy the essential ingredients to attract the alleged offences. In other words, if such allegations in the petition are vague and are not specific with respect to the alleged offences it cannot lead to an order for registration of an F.I.R. and investigation on the accusation of commission of the offences alleged. As noticed hereinbefore, the respondent alleged commission of offences under Sections 323, 384, 406, 423, 467, 468, 420 and 120B, IPC against the appellants. A bare perusal of the said 11 GAC,J Crl.P.No.2788 of 2023 allegation and the ingredients to attract them, as adverted to hereinbefore would reveal that the allegations are vague and they did not carry the essential ingredients to constitute the alleged offences. There is absolutely no allegation in the complaint that the appellants herein had caused hurt on the respondent so also, they did not reveal a case that the appellants had intentionally put the respondent in fear of injury either to himself or another or by putting him under such fear or injury, dishonestly induced him to deliver any property or valuable security. The same is the position with respect to the alleged offences punishable under Sections 406, 423, 467, 468, 420 and 120 B, IPC. The ingredients to attract the alleged offence referred to hereinbefore and the nature of the allegations contained in the application filed by the respondent would undoubtedly make it clear that the respondent had failed to make specific allegation against the appellants herein in respect of the aforesaid offences. The factual position thus would reveal that the genesis as also the purpose of criminal proceedings are nothing but the aforesaid incident and further that the dispute involved is essentially of civil nature. The appellants and the respondents have given a cloak of criminal offence in the issue. In such circumstance when the respondent had already resorted to the available civil remedy and it is pending, going by the decision in Paramjit Batra (supra), the High Court would have quashed the criminal proceedings to prevent the abuse of the process of the Court but for the concealment."
In the above case, the Lordships have held that non-disclosure by the respondents as to the existence of pending suit between the parties before the competent civil Court would amount to abuse of process of law.
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11. This Court on 17.03.2023 while issuing notice to respondent No.2, stayed all further proceedings in Crime No.1561 of 2022, on the file of P.S. Cyber Crime Sation, Hyderabad till 11.08.2023 and further the stay order stood extended from time to time till the date of hearing of the orders.
12. The learned counsel for respondent No.2 has filed a vacate stay petition and counter, wherein, it is specifically contended that at the instance of respondent No.2 the FIR was registered against the petitioner by the investigating agency with regard to the infringement of intellectual property rights and grievous injury caused upon respondent No.2. It is the case of respondent No.2 that she is a well known, established and reputed contemporary author of literary works since 2016 who has authored 36 books as on date and her books have gained over 7.5 crore page reads. Further, her books have raised revenue of Rs.7,82,775/- in the year 2018; Rs.16,23,150/- in the year 2019; Rs.22,42,741/- in the year 2020; Rs.18,94,356/- in 13 GAC,J Crl.P.No.2788 of 2023 the year 2021 and Rs.12,97,300/- in the year 2022 on the online platforms. Further, respondent No.2 through the readers/general public, in the month of May, 2022 was notified that her book "The Varma Brothers" (original work) was copied by the petitioner, who had reproduced to "My Ruin" and "My Rebel" which are a part of the series "The Bond of Brothers". It is contended by respondent No.2 that having identified petitioner's work, contained numerous passages which had been pirated from her stories consequently on 08.05.2022 contacted/confronted the petitioner on social media and having realized that the petitioner is a fellow author and well acquainted with a sole intention to inform about the infringement of original book "The Verma Brothers" and further alerted the petitioner to refrain from copying her original work.
13. It is contended that the petitioner has committed the offence under the Copy Rights Act, hence, respondent No.2 was constrained to file a complaint before the police for 14 GAC,J Crl.P.No.2788 of 2023 which Crime No.1561 of 2022 is registered against the petitioner.
14. It is the specific contention of the learned counsel for respondent No.2 that the interim order, dated 21.02.2023 has been passed against respondent No.2 pending the suit and she has preferred an appeal against the same before the Bombay High Court in Civil Appeal No.438 of 2023, which is sub-judice before the Court. In support of his contentions, learned counsel for respondent No.2 relied on the judgment of the Hon'ble Supreme Court in the case of M/s. Neeharika Infrastructure Private Limited Vs. State of Maharashtra 3, wherein it is reiterated that the stay of investigation and/or any interim relief can only be granted in rarest of rare cases. It is further held that such an order cannot be passed solely on the strength of the same being a detailed and a reasoned order. The right of the investigating officer was also emphasized, which was reiterated in the aforesaid case. The Supreme Court held 3 2021 SCC Online SC 315 15 GAC,J Crl.P.No.2788 of 2023 that the High Courts cannot grant relief of stay of investigation and/ or any interim relief merely by passing a reasoned order, which was also a condition precedent in Neeharika's case (supra) in addition to other requirements. He therefore prayed to vacate the interim order, dated 17.03.2023.
15. From the perusal of the entire record, it is evident that the petitioner initially has issued legal notice to respondent No.2 on 08.08.2022 and respondent No.2 has also issued reply to the said legal notice on 17.08.2022 stating that she will take civil and criminal action for infringement of her copy rights. On 30.08.2022, a FIR was registered before Cyber Crime Police Station, Hyderabad against the petitioner under Sections 385 and 506 of I.P.C. Thereafter, on 01.09.2022, the investigating agency addressed a letter to the XII Additional chief Metropolitan Magistrate, Nampally, Hyderabad requesting to add Sections 63 and 65 of the Copy Rights Act, 1957. All these events took place in the month of August, 2022 and on 16 GAC,J Crl.P.No.2788 of 2023 01.09.2022. Further, the record reveals that Civil Suit No.19 of 2022 was filed by the petitioner on 08.11.2022 along with an interim application and the notice was issued to respondent No.2 on 01.12.2022 and after receiving the counter of respondent No.2, the trial Court passed the interim order, dated 21.02.2023 stating that there is no copy right infringement prima facie and granted ad-interim injunction restraining respondent No.2 from making any defamatory statements.
16. It is apt to refer to Sections 63 and 65 of the Copy Rights Act, 1957 which 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 53A, 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 17 GAC,J Crl.P.No.2788 of 2023 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.
....
....
65. Possession of plates for purpose of making infringing copies.-- Any person who knowingly makes, or has in his possession, any plate for the purpose of making infringing copies of any work in which copyright subsists shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.
65A. Protection of technological measures.-- (1) Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights,shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.
(2) Nothing in sub-section (1) shall prevent any person from,--
(a) doing anything referred to therein for a purpose not expressly prohibited by this Act: 18
GAC,J Crl.P.No.2788 of 2023 Provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or
(b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or
(c) conducting any lawful investigation; or
(d) doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorisation of its owner; or
(e) operator; or
(f) doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or
(g) taking measures necessary in the interest of national security."
17. As per Section 63 of the Copy Rights Act, it is evident that any person who knowingly infringes or abets the infringement of the copyright in a work shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and fine. 19
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18. As per Section 65 of the Copy Rights Act, any person who knowingly makes or has in possession any plate for the purpose of making infringing copies of any work in which copyright subsists shall be punishable with imprisonment which may extend to two years and shall be liable to fine.
19. Admittedly, the petitioner received notice under Section 41-A of Cr.P.C. on 09.03.2023 and also received summons in O.S.No.123 of 2023 which was filed by the respondent No.2 before the Additional Chief Judge, Hyderabad for infringement of copy rights. Hence, it is evident that both the parties have initiated civil disputes before the Courts and have filed criminal petitions against each other, one at Pune by the petitioner and other at Hyderabad by respondent No.2. On one hand, they deal with civil rights and on the other the complaint of respondent No.2 against the petitioner under Sections 385 and 506 of Indian Penal Code and Sections 63 and 65 of the Copy Right Act, 1957.
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20. Taking into consideration that civil disputes are pending between the parties before the Courts and that criminal cases are also filed against each other by the parties, this Court is of the considered view that it is not a fit case to quash the proceedings at this juncture. However, the petitioner shall not be arrested by the police keeping in view that the civil disputes are pending before the Court. The Investigating Authority shall proceed with the investigation, consider all the documents and oral submissions made by the petitioner herein and file an appropriate report before the Magistrate concerned.
With the above observations and directions, the Criminal Petition is disposed of.
Miscellaneous applications pending, if any, shall stand closed.
____________________________________ G. ANUPAMA CHAKRAVARTHY, J September 6, 2023.
BMS