Jharkhand High Court

Sarabpreet Singh @ Sarvaprit ... vs State Of Jharkhand on 22 July, 2022

                                                    1                   Cr.M.P. No. 1514 of 2019


                     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               Cr.M.P. No. 1514 of 2019
                  Sarabpreet Singh @ Sarvaprit Singh, aged about 26 years, son of Sri
                  Ranjeet Singh, resident of Ganpat Nagar, Bahu Bazar, PO GPO, PS
                  Chutia, District Ranchi 834001 (Jharkhand)    ... Petitioner

                                         -Versus-

             1    State of Jharkhand
             2.   Anand Tiwary, son of Dr.D.R.Tiwary, Associate Director, Perfetti Van
                  Melle India Private Limited, having residential address as B-140,
                  Prashant Vihar, PO Sector-9, P.S.Sector-9 Prashant Vihar, District New
                  Delhi                                           ... Opposite Parties
                                            -----

             CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                            -----

             For the Petitioner             : Mr. Pandey Neeraj Rai, Advocate

For the Opposite Party-State : Mr. Ravi Prakash, Spl.P.P. For Opposite Party No.2 : Mr. Rishikesh Giri, Advocate

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06/22.07.2022. Heard Mr. Pandey Neeraj Rai, the learned counsel for the petitioner,

Mr. Ravi Prakash, the learned counsel for the State and Mr. Rishikesh Giri,

the learned counsel for the respondent opposite party no.2.

2. This petition has been filed for quashing the entire criminal

proceeding including the order taking cognizance dated 20.02.2019 in

connection with Cyber Crime P.S. Case No.04/2018, pending in the court of

the learned Additional Judicial Commissioner-II, Ranchi.

3. The FIR was lodged on the basis of a complaint to the S.P., Cyber

Crime Branch, Ranchi by one Perfetti Van Melle India Private Limited,

represented by its purported power of attorney holder Mr. Anand Tiwary, the

offending act in the complaint is under the heading 'infringing activities'. It

was further alleged that an unknown person has without any permission/

consent of the company used clip of the Mentos advertisement and a song

of well known Hindi movie whereby they have sought to demean and

denigrate the Hon'ble and respectable Chief Minister and other political

dignitaries of the State of Jharkhand. The said video has been tweeted from

twitter handle account @madeinranchi. It was also alleged that the

informant's/complaint's right under Trademarks Act and Copy Right Act has

been infringed.

4. Mr. Pandey Neeraj Rai, learned counsel for the petitioner submits that

the petitioner was arrested on the allegation of being user of the twitter

handle account on 03.04.2018 itself. Eventually, he was granted regular bail

on 10.04.2018 by the court below. His mobile phone which was seized was

released by order dated 24.05.2018. He further submits that the charge-

sheet has been submitted against the petitioner for the offences punishable

under Sections 419, 420, 468, 500 and 505 of the Indian Penal Code and

under Section 63 of the Copy Right Act, under Sections 103 and 105 of the

Trademark Act and under Sections 66(C) and 66(D) of the Information

Technology Act. He also submits that the cognizance has been taken

without examining whether the ingredients are made out against the

petitioner or not. He further submits that in absence of any legal evidence,

the cognizance has been taken against the petitioner. He further elaborated

his argument by way of submitting that it has been alleged that the

petitioner has uploaded a video in his twitter account on 01.04.2018 in

which the Chief Minister of Jharkhand was shown, mixing the same with a

song of Hindi film and advertisement of Mentos. He also submits that the

video was uploaded in a lighter sense on 01.04.2018. There was nothing to

harm the reputation of any highers. He further submits that the said video

was not meant for any commercial purpose and admittedly the product

has not been used for business or advertisement purpose and

accordingly there is no ingredient under Section 63 of the Copy Right Act,

Sections 103 and 105 of the Trademark Act and Section 66(C) and 66(D) of

the Information Technology Act against the petitioner. He further

draws attention of the Court to the supplementary affidavit wherein the

case diary has been annexed and by way of referring the statement of one

Pratyush Kumar Guha, he submits that he has only stated that he has

asked the informant to lodge the FIR. On this ground, he submits that

it is a case of malicious prosecution and no ingredient is made out

against the petitioner and this Court is competent to quash the

entire criminal proceeding including the order taking cognizance.

5. Mr. Ravi Prakash, learned counsel for the State submits that there are

ingredients of the said sections and therefore the learned court has rightly

taken the cognizance. He further submits that the petitioner has admitted

before the police about release of the said video and the investigating

agency has submitted charge-sheet against the petitioner.

6. Mr. Rishikesh Giri, learned counsel for opposite party no.2 supported

the contents of the FIR. He further submits that the petitioner has been

benefited by way of releasing the said video and due to which viewership of

his twitter has been increased.

7. In view of the above submissions of the learned counsel for the

parties, this Court has gone through the materials on the record. Looking to

the complaint, this Court finds that there was mixing of Mentos with well

known Hindi movie song in the said video. Looking into the averment made

in the complaint, so far as penal Sections 419, 420, 468, 500, 505 of the

Indian Penal Code are concerned, the ingredients of these sections are not

made out against the petitioner.

8. Section 419 of the Indian Penal Code speaks about punishment for

cheating by personation, the ingredient of which is not made out against

the petitioner by reading the entire complaint.

9. Section 420 of the Indian Penal Code speaks about cheating and

dishonestly inducing delivery of property. The ingredients of an offence of

cheating are that there should be fraudulent or dishonest inducement of a

person by deceiving him, the person so deceived should be induced to

deliver any property to any person, or to consent that any person shall

retain any property or the person so deceived should be intentionally

induced to do or omit to do anything which he would not do or omit if he

were not so deceived. A reference may be made to the case of S.W.

Palanitkar Vs. State of Bihar, reported in 2002 SCC (Cri) 129.

10. Section 468 of the Indian Penal Code speaks about forgery for

purpose of cheating and the entire contents of the FIR are not disclosing

the ingredient under this section.

11. Section 500 of the Indian Penal Code speaks about punishment for

defamation. For taking cognizance under Section 500 of the Indian Penal

Code, the explanation (ii) of Section 499 of the Indian Penal Code is

required to be looked into and if the requirement of that is fulfilled, then

only cognizance under Section 500 of the Indian Penal Code will be taken.

Moreover, aggrieved person is required to file the case. A reference is made

to the judgment rendered by the Hon'ble Supreme Court in the case of S.

Khushboo v. Kanniammal & another , reported in (2010) 5 SCC 600.

Paragraph 40 of the said judgment is quoted herein below:

"40. A complaint under Sections 499, 500 and 501 IPC was filed in response to this report. Like the present case, the Court had to consider whether the complainant had the

proper legal standing to bring such a complaint. The Court did examine Section 198 of the Code of Criminal Procedure, 1898 (analogous to Section 199 of the Cr.PC. 1973) and observed that the said provision laid down an exception to the general rule that a criminal complaint can be filed by anyone irrespective of whether he is an "aggrieved person" or not. But there is a departure from this norm in so far as the provision permits only an "aggrieved person" to move the Court in case of defamation. This section is mandatory and it is a settled legal proposition that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an "aggrieved person", the trial and conviction of an accused in such a case by the Magistrate would be void and illegal."

12. Section 505 of the Indian Penal Code is not made out against the

petitioner as it has not been alleged that anything has been delivered for

public mischief. Thus, the ingredients under the aforesaid sections of the

Indian Penal Code are not made out against the petitioner.

13. As per Section 28 of the Trade Marks Act, trademarks is valid only in

relation to goods and services in respect of which trademarks is registered.

From the contents of the FIR, it is crystal clear that the petitioner was never

intended to sell a product similar to Mentos. Sub-section (2) of Section 29 of

the Trade Marks Act speaks that a person infringes the trademarks if he

uses it for similar goods so as to cause confusion on the part of the public

or which is likely to have an association with the registered trademarks.

Section 115 of the Trade Marks Act speaks about search and seizure and it

required to be done by the officer not below the rank of the Deputy

Superintendent of Police, whereas, in the case in hand, the case was

investigated by the Police Inspector. Moreover, as per Sub-section (4) of

Section 115 of the Trade Marks Act, opinion of the Registrar is required to

be obtained before making search and seizure, which has not been followed

in the case in hand.

14. Section 52 of the Copyrights Act speaks about certain acts not to be

infringement of copyright. Sub-section (1)(l) of Section 52 of the Copyrights

Act reads as under:

"52(1)(l) the performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution."

15. From reading of Sub-section (1)(l) of Section 52 of the Copyrights

Act, it is crystal clear that for literary, dramatic or musical work by an

amateur club or society, the Copyrights Act is not applicable.

16. There is no allegation of use of electronic signature, password or any

unique identification of any person by the petitioner. Thus, the ingredient of

Section 66(C) of the Information Technology Act is not made out against the

petitioner. Furthermore, there is no allegation of cheating by personating of

any person by the petitioner. Thus also, the ingredient of Section 66(D) of

the Information Technology Act is not made out against the petitioner.

17. The cognizance order dated 20.02.2019 is also not in accordance with

law. What are the materials against the petitioner, is not disclosed in the

impugned order. For taking cognizance, a detailed order is not required to