Kerala High Court
Vineethkumar vs State Of Kerala on 7 November, 2024
CRL.REV.PET NO. 345 OF 2016 1
2024:KER:83052
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
CRL.REV.PET NO. 345 OF 2016
AGAINST THE ORDER/JUDGMENT DATED 25.01.2016 IN CRMC NO.100 OF
2013 OF ADDITIONAL SESSIONS COURT,THIRUVANANTHAPURAM ARISING OUT
OF THE ORDER/JUDGMENT DATED 29.01.2013 IN CC NO.56 OF 2007 OF
CHIEF JUDICIAL MAGISTRATE ,THIRUVANANTHAPURAM
REVISION PETITIONER/APPELLANT/ACCUSED:
VINEETHKUMAR
S/O. RAVI KUMAR, RESIDING AT MANATTU VEEDU,
VAZHOTTUKONAM, CHEMBUKONAM WARD, VATTIYOORKAVU VILLAGE,
THIRUVANANTHAPURAM.
BY ADV SRI.A.AHZAR
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE SUB INSPECTOR OF POLICE, MUSEUM,
THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
OTHER PRESENT:
Smt.Maya.M.N.,P.P.
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 07.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.REV.PET NO. 345 OF 2016 2
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C.PRATHEEP KUMAR, J
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Crl.R.P.No.345 of 2016
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Dated this the 7th day of November, 2024
ORDER
This Criminal revision petition is filed by the appellant in
criminal appeal No.100/2013 on the files of the Additional Sessions
Court-II, Thiruvananthapuram against the judgment dated
25.01.2016 confirming the judgment of the Chief Judicial
Magistrate Court, Thiruvananthapuram in C.C.No.56/2007 finding
him guilty under Section 68A of the Copyright Act.
2. The prosecution case is that, on 8.12.2006 PW7,
the Sub Inspector of Police, Museum Police Station, on getting
information regarding illegal hiring of pirated CDs at Vaisali Video
shop situated at Vazhuthacaud, conducted search in the said shop
at 3.00 pm and seized 183 pirated CDs of various films in
Malayalam, Tamil, English and Hindi, which are allegedly not
containing the particulars stipulated under Section 52-A of the
Copyright Act. In that respect, he registered Ext.P7 FIR against the
accused persons 1 and 2.
3. After the trial, the learned Magistrate found the
first accused not guilty and accordingly he was acquitted, while
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the 2nd
accused/the revision petitioner was convicted.
4. In appeal, the learned Sessions Judge confirmed
the findings of the trial court. Aggrieved by the judgment of the
Sessions Judge, this revision petition is preferred raising various
grounds.
5. Now the point that arise for consideration is the
following:
Whether the impugned judgment of the learned
Sessions Judge confirming the conviction against the revision
petitioner under Sections 68A and 63 of the Copyright Act is
liable to be interfered with, in the light of the grounds raised
in the revision petition?
6. Sri.Ahzar.A., the learned Counsel for the revision
petitioner would argue that there is no evidence to prove that the
revision petitioner has violated the mandates under Sections 52-A
and 63 of the Copy Right Act. He also argued that PW7, before
conducting search has not complied the mandate of Section
100(4) of the Cr.P.C.. In the light of the above grounds, he prayed
for acquittal of the revision petitioner.
7. On the other hand, Smt.Maya.M.N., the learned
Public Prosecutor prayed for sustaining the conviction.
8. One of the charges against the revision petitioner
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is under Section 68-A of the Copyright Act, for the contravention of
Section 52-A. Section 52-A of the Copyright Act reads thus:
[52A. Particulars to be included in 3 [sound recording] and
video films.-- (1) No person shall publish a 3 [sound recording] in
respect of any work unless the following particulars are displayed on
the 3 [sound recording] and on any container thereof, namely:
(a) the name and address of the person who has made
the sound recording;
(b) the name and address of the owner of the copyright in
such work; and
(c) the year of its first publication.
(2) No person shall publish a video film in respect of any
work unless the following particulars are displayed in the video film,
when exhibited, and on the video cassette or other container
thereof, namely:--
(a) if such work is a cinematograph film required to be
certified for exhibition under the provisions of the Cinematograph
Act, 1952 (37 of 1952), a copy of the certificate granted by the
Board of Film Certification under section 5A of that Act in respect of
such work;
(b) the name and address of the person who has made
the video film and a declaration by him that he has obtained the
necessary licence or consent from the owner of the copyright in
such work for making such video film; and
(c) the name and address of the owner for the copyright in
such work.]
9. As argued by the learned Counsel for the revision
petitioner, at the time of evidence PW7, the Detecting Officer has
not stated as to which of the particulars to be included in the
seized CDs, so as to attract the penalty under Section 68-A of the
Copyright Act, were omitted to be included in the seized videos. At
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the time of evidence, he also conceded that he has not displayed
any of the CDs to ascertain whether it contains the particulars
required under Section 52-A. Since PW7 has not specified the
particulars, which are required under Section 52-A, are absent in
the seized CDs, I am constrained to hold that the prosecution has
not succeeded in proving the offence under Section 68-A of the
Copyright Act.
10. The other offence alleged against the revision
petitioner is under Section 63 of the Copy Right Act, which relates
to infringement of copy right or other rights conferred by this Act.
In this case, as argued by the learned Counsel for the revision
petitioner, PW7, the Detective Officer has not specified the names
of the copyright holders of the movies in the seized CDs seized.
None of the persons having such right were brought on record or
examined as a witness before the court. At the time of evidence,
PW7 deposed that the accused has not produced any documents
to prove his ownership and that is why the case was registered
against him. It is the burden of the prosecution to prove that the
accused has infringed the copy right or other rights conferred by
the Copyright Act, so as to attract the offence under Section 63 of
the Copyright Act. In this case there is no evidence to prove that
the revision petitioner has infringed the copyright of anybody. In
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other words, the prosecution has not succeeded in proving the
offence under Section 63 of the Copyright Act also.
11. The learned Counsel for the revision petitioner
has relied upon the decisions in Sarmakani and others v. State
of Kerala and others, 2020(3) KHC 653 and Pradeep Narayan
Madtaonkar vs. State of Maharashtra, [1995 KHC 869] in
support of his argument that failure to comply the mandate of
Section 100(4) Cr.PC will vitiate the search. Relying upon the
decision in Dawood v. State of Kerala, 2023 (6)KHC 284, he
would further argue that proof of conscious possession is required
for proving the offence under Section 68-A of the Copyright Act.
12. At the time of evidence, PW7 deposed that when
he got information that pirated CDS were stored for hiring in Vysali
Videos, he had directly proceeded to the shop and conducted
search. He has not made any attempts to call upon two or more
independent and respectable inhabitants of the locality to attend
and witness the search, as required under section 100(4) Cr.P.C.
PW2 and PW4 cited to prove the search are persons doing
business near to the Museum Police Station, while the search was
conducted in a shop at Vazhuthakkad. Both of them deposed
before the court that they have not seen search and seizure.
Therefore, it can be seen that in this case PW7 has not complied
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the mandate of Section 100(4) Cr.P.C. before conducting the
search.
13. PW5, one of the witnesses examined in this case,
would swear that one Sasidaran and his wife are the persons, who
are conducting Vysali Videos. Even according to PW7, the 1 st
accused Sreejesh is the actual owner of the shop. However, the
trial court acquitted him and the said finding was not challenged.
During the cross examination, PW7, deposed that when he
reached the shop there were 3-4 persons in the said shop and the
revision petitioner is only one among them. At the time of
evidence, it is also revealed that one Kamath is the land lord of the
above shop. However, PW7 has not questioned the said Kamath or
made him as a witness to prove, as to who was actually running
the above shop.
14. The above circumstances also creates suspicion
in the veracity of the prosecution case. In the light of the above
circumstances, I am constrained to hold that the prosecution has
not succeeded in proving the charges against the revision
petitioner, beyond reasonable doubt. Accordingly, this revision
petition is liable to be allowed.
15. In the result the revision petition is allowed.
The impugned judgment of the Sessions Court confirming
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the order of conviction passed by the learned Magistrate against
the revision petitioner is set aside. The revision petitioner is
acquitted under Section 386(b)(i) Cr.P.C. He is set at liberty,
cancelling his bail bond.
The learned counsel has submitted that the revision
petitioner has already deposited half the fine amount before the
trial court. In case any such amount is deposited, the same is to be
disbursed to the revision petitioner.
sd/
C.PRATHEEP KUMAR
JUDGE
jm/
