Bablu Das vs State Of West Bengal & Anr
2023 Latest Caselaw 1528 Cal

                      IN THE HIGH COURT AT CALCUTTA
                     CRIMINAL REVISIONAL JURISDICTION
                              (APPELLATE SIDE)


Present:
The Hon'ble Justice Rai Chattopadhyay


                              CRR 718 of 2015

                                Bablu Das
                                   Vs.
                       State of West Bengal & Anr.


For the Petitioner                         : Mr. Sourav Chatterjee,
                                           : Ms. Subhasree Patel.


For the State                              : Mr. Pravas Bhattacharya,
                                           : Ms. Debjani Sahu,


Hearing concluded on: 23/12/2022

Judgment on: 01/03/2023


Rai Chattopadhyay, J.

1) This case has been preferred by the petitioner to challenge the

entire proceeding being case ACB GR No. 10/13 under section 63 of the

Copy Rights Act, 1957, all orders passed therein including the order dated

May 14, 2013, taking cognizance of offence by the trial Court that is

Additional Chief Judicial Magistrate, Alipore. This case arose in connection

with Kasba (E. B) Police Station Case No. 123 dated 13. 02. 2013, under the

said provision of law as afore stated.

2) The case was started pursuant to a FIR lodged on February 11,

2013, by one Ranjan Prasad Sinha, manager of Brand Protection and Anti-

Piracy Solutions. The defecto complainant has stated himself to be the

authorised representative of Media Pro Enterprise Private Limited, a

company having its office at Mumbai. The defecto complainant has alleged

against the business establishment namely "Choudhury Estate Guest

House", of infringement of rights and authorities to transmit cable TV

channels, distributed by the said Media Pro Enterprise Private Limited.

Allegedly the said business house has unauthorizedly obtained signals of the

satellite channels from any unknown source and transmitted that to the

respective commercial properties, thereby causing unlawful loss of huge

revenue to the original distribution company, that is, Media Pro. According

to the defecto complainant such illegal access of the signals of media Pro

channels from unknown source by the accused business houses/persons

amount to offence under the Indian Copyright Act, 1957, the Indian Penal

Code, violation of the Cable Television Networks (Regulation) Act, 1995 and

also the TRAI Regulations dated April 30, 2012. Present petitioner is the

employee of the said business house namely "Choudhury Estate Guest

House",which is alleged of infringing copyright of the distribution company,

that is, Media Pro.

3) Mr Chatterjee, appearing for the petitioner has attacked the

order of the trial Court taking cognizance of the offence against the present

petitioner in this case on many fold grounds. He would first submit that the

first information report is a nonspeaking one so far as any allegation or

implication of the present petitioner in the instant case is concerned. He

says that to proceed in the criminal case against his client, the prosecutors

should have been equipped with the prima facie immaterial of offence

against his client, which, according to him are not available in this case in

the first information report. Hence according to him any proceeding

pursuant to such a FIR against his client is only an abuse of the process of

Court and not sustainable in the eye of law.

4) Mr Chatterjee further submits that in view of the agreement

entered into between the MSO/cable operator and the guesthouse in the

years 2012 - 2013 and 2013 - 2014, pursuant to which stipulated sum of

money has already been remitted by the guesthouse for obtaining

authorisation for transmission of the cable TV channels in the guesthouse, it

can never be alleged that any infringement has been made by the said

guesthouse as alleged, of the rights of transmission of the broadcaster nor it

can be said that the guesthouse has been unauthorizedly obtaining signal

and transmitting the same for viewing purpose and has been indulging into

piracy as alleged. It is submitted that during existence of the agreement

entered into between the parties in the year 2013-2014, lodging of any first

information report with the police alleging illegality in acquiring signals for

broadcasting purpose by the said guesthouse is only malicious and a police

case initiated with the taint of malice is not maintainable in the eyes of law.

According to Mr Chatterjee, the guesthouse if at all using the signals of the

broadcaster for transmission of the TV channels, is only under proper and

valid authorisation as per a duly executed agreement entered into between

the parties and not otherwise.

5) Mr Chatterjee would further submit that the defecto complainant

has arrayed the guesthouse as contemplated accused. Nowhere in the first

information report, any role of his client, that is,the present petitioner has

ever been described, to be involved in the offensive activities as alleged. Mr

Chatterjee emphasises that the petitioner is only an employee of the

guesthouse and no way connected with the managerial affairs of the same.

He further points it out that in order to hold the petitioner responsible for

any action of the guesthouse as such, the defecto complainant would be

required under law to specifically narrate in the FIR the specific roll and part

playing of the petitioner on the basis of which any ingredient of offence as

alleged against him could be found, at least prima facie. It is submitted that

in this case there is no such ingredient of offence available against the

present petitioner in the FIR. Hence on behalf of the petitioner it has been

submitted that the criminal proceeding against the present petitioner should

not continue and the case in the trial Court as mentioned above should be

quashed, so far as the present petitioner is concerned.

6) State is represented in this case and the contention and prayer

of the petitioner has been severely objected to. Photocopy of the case diary

has been produced in Court and on the basis of the materials in the same it

has been submitted that those are sufficiently indicating about petitioner's

involvement in commission of the acts of infringement of copyright of the

broadcaster thereby causing injury to its lawful business rights and

properties, resulting to its unlawful loss. Special emphasis has been made to

the seizure list as contained in the case diary to show that seizure of the set-

top box et cetera in connection with the present case was made from the

custody of the present petitioner. It has also been pointed out that witnesses

have stated about his involvement. Thus according to the State, there has

been sufficient material available against the petitioner to go into trial with

respect to him. According to the State petitioner's prayer is only unfounded

and the present revision case is devoid of any merit and may be dismissed.

7) No one has appeared in this case on behalf of the opposite

party/complainant, in spite of due and completed service of notice. Under

such circumstances the case is taken up for hearing and disposal, in

absence of the opposite party/complainant.

8) Usage by the accused business house, of the transmission

signals from the broadcaster company are authorised or not, are dependent

on the fact whether the recipient of the signals have opted the same

pursuant to due remittance of fees/duties for the same or not. Primarily in

this case it has been shown on behalf of the petitioner that the business

house has entered into a contract with the broadcaster and the cable

operator, which is in operation at the relevant point of time and pursuant to

which the business house has remitted stipulated amount of money in lieu

of the authorisation of broadcasting given to it by the broadcaster. Such an

agreement, even being in operation between the parties, has not been part of

the investigation, as it can be seen from the case diary itself. Naturally on

this point there has been no counter argument by the State. The

complainant is not present to defy such fact. This fact therefore, being

uncontroverted, that, at the relevant point of time the business house

namely "Choudhury Estate Guest House", was covered under the valid

agreement, duly entered into between the parties, granting broadcasting

rights to the said business house, leaves no scope of doubt that the

allegation of want of broadcasting rights, has not been founded on very

credible or cogent grounds.

9) Furthermore it has been rightly pointed out on behalf of the

petitioner that in the FIR, allegations have only been made against the

business house and no specific roll of the petitioner has at all been

attributed and mentioned therein. Later on during investigation, seizer of

set-top box et cetera has been made, allegedly from the custody of the

present petitioner. However as discussed earlier, during the subsistence of

an agreement, this ipso facto cannot prima facie constitute any element of

offence or culpability as regards the present petitioner. It is the trait law that

as soon as the petitioner is being vicariously made liable for an offence

committed by the concern in which he is employed, his extent of involvement

and specific roll has to be categorically pleaded in the FIR in order to make

him liable vicariously for the juridical person, in this case the concerned

business house. The first information report in this case is indeed a

nonspeaking and silent one, so far as this aspect of the matter is concerned.

In such view of the fact, the ratio of the judicial pronouncements as relied on

by the petitioner appeared to be squarely applicable in this case. Those are

as follows:

(i) Sushil Sethi and Another vs State of Arunachal Pradesh and

Others reported in (2020) 3 Supreme Court Cases 240; the Hon'bleCourt

held that it is obligatory on part of the complainant to make requisite

allegations which would attract the provisions constituting vicarious

liability;

(ii) Aneeta Hada vs Godfather travels and Tours Private Limited

reported in (2012) 5 Supreme Court Cases 661; the Hon'ble Court has

held that applying the doctrine of strict construction, commission of

offence by the company is an express condition precedent to attract

the vicarious liability of others.

10) It is also settled that in exercise of power under section 482

CRPC, the Court shall interfere into a proceeding, to secure the ends of

justice, if the same is found to be based on a first information report not

disclosing any prima facie material for a cognizable offence and prosecutable

case against the petitioner. As discussed earlier, during existence of any

valid agreement for broadcasting between the parties, an allegation for

unauthorizedly obtaining signal is only baseless, illusory and unfounded. So

is the implication of the petitioner in the present case, particularly in

absence of any specific role of the petitioner having been alleged by the

defecto complainant. The extent of criminal liability to the alleged offence as

attributed to the petitioner, is also found to be wrongly placed on him,

keeping in mind the duly obtained authority of his employer to broadcast the

satellite television channels in lieu of applicable charges.

11) By referring in the ratio of the decisions of the Hon'ble Supreme

Court in the cases of Sushil Sethi (Supra) and Aneeta Hada (Supra), it is

found that under the law, the prosecution has to bring on record in specific

terms, the specific allegations against the person, who is being vicariously

made liable for the offence of a juridical person, which in this case the

prosecution has tried to make out against the present petitioner, being an

employee of the guest house. However as discussed earlier, in the FIR there

is no mention of the petitioner's name or his alleged involvement in the

offence, much less of his specific part play therein. Therefore, the ratio of

the two decisions as referred to in this case on behalf of the petitioner

squarely applies in this case and accordingly it can be found that the FIR is

devoid of any clenching material against the petitioner to proceed against

him in trial.

12) Therefore after considering elaborately the materials in this case

against the petitioner it can well be formulated that no ingredient of offence

as alleged against the petitioner has been made available at least prima

facie, either in the first information report or during investigation so as to

justify any further proceedings in this case against him. Otherwise it would

only be a gross misuse of the process of the Court if the prosecution is

allowed to be proceeded with any further against the petitioner. Hence

accordingly, in exercise of the extra ordinary inherent power of this Court

under section 482 CrPC, the entire proceedings in the trial Court, in

connection with case ACB GR No. 10/13 under section 63 of the Copy

Rights Act, 1957, is quashed and set aside, as against this petitioner. Hence

the revision succeeds.

13) CRR 718 of 2015 is allowed, with the directions as made above.

Case is disposed of along with connected application if any. Case diary be

returned.

14) Certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

(Rai Chattopadhyay,J.)