Sapna Bhog vs The State Of Telangana
2023 Latest Caselaw 2045 Tel

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

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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

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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.

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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

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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.

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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

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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

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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

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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

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"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

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

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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

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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

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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

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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

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:

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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.

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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