Tuesday, 8 January 2013
Offence of infringement of copyright
Section 63 in The Copyright Act, 1957
63. Offence of infringement of copyright or other rights conferred by this Act. Any person who knowingly infringes or abets the infringe- ment of-
(a) the copyright in a work, or
(b) any other right conferred by this Act, 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 lake rupees: Provided that the court may, for adequate and special reasons to be mentioned in the judgement 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.
Equivalent citations: 2006 (1) ALD Cri 96, 2005 CriLJ 4314
Author: V Rao
Bench: V Rao
V.V.S. Rao, J.
1. These two petitions are filed by different persons under Section 482 of Code of Criminal Procedure, 1973 (Cr. P. C.) seeking similar relief. Both the matters were admitted on the same day and since then both the matters are being listed together for being disposed of as such, this common order covers both the matters. The petitioners in both the matters seek the relief of quashing F. I. R. No. 20 of 2003 of Criminal Investigation Department (C. I. D.) Police, Hyderabad, registered under Sections 409, 420 and 120B of Indian Penal Code, 1860 (for short, IPC), Section 65 of the Information Technology Act, 2000 (for short, IT Act) and Section 63 of the Copyright Act, 1957 (for short, Copyright Act).
2. The crime was registered against the petitioners on a written complaint given by the Head of Sales and Marketing Wing of M/s. Reliance Infocomm Ltd., Hyderabad, the second respondent herein. In the complaint, it is alleged that certain vested elements of the trade of mobile telephone services began to woo the subscribers of Reliance India Mobile (RIM) into various other schemes promoted by other similar service providers, which would have the impact on the image as well as the revenues of the second respondent. Reliance Infocomm under Dhirubhai Ambani Pioneer Offer launched telephone services named as 'Reliance India Mobile' with a view to make communication affordable to the masses. The same was later modified and the scheme titled 'POBF, which is the most affordable in the market today. Under the said scheme, the subscriber gets a digital handset worth Rs. 10.500/- as well as service bundle for three years with an initial payment of Rs. 3.350/-and monthly outflow of meager Rs. 600/-. The subscriber also gets one year warranty and insurance for three years. The handset given to the subscriber is third generation digital handset with a host of features which are of first of its kind coupled with attractive tariff options. In view of this, the market response in twin cities has been phenomenal. This has an impact on the business of other service providers for the reason that those service providers attempted unethical and illegal practices for weaning away the subscribers of the second respondent.
3. In the complaint, the modus operandi adopted by other mobile service providers is described as follows : The subscribers of the second respondent are attracted by making phone calls impressing upon them that the tariff plans and services provided by others are better than the services of Reliance Infocomm and also advise them that they have an option to shift the service provider by paying an amount of Rs. 3,000/~ towards plan charges and deposits if desired are only Rs. 540/- towards activation fee. Certain unknown persons in Abids, Begumpet, Koti, Himayatnagar and Malak-pet are making the calls to the subscribers of second respondent. Once the subscriber agrees that he can keep a world class handset which is proprietary to Reliance and also enjoy the best tariff plan of the competitor, he is asked to meet any of the business associates of rival service providers. At the rendezvous, the customer is asked to wait for an hour and an usher carries the handset to an undisclosed location in Secunderabad for conversion process, which takes about 45 minutes to an hour and half. During this time, ESN number of Reliance instrument is hacked by reprogramming and the subscriber is given the handset and instructed to switch off and switch on the handset later in the day and start enjoying the new services.
4. After receiving above written complaint lodged by the second respondent through its Head of Sales and Marketing Wing, the senior executive officer of Criminal Investigation Department, on instructions of the Additional Director General of Police, CID, registered crime No. 20 of 2003 under various provisions of IPC, IT Act and Copyright Act as mentioned hereinabove and took up investigation. The crime was registered on 31-5-2003. Investigation revealed that all the handsets of Reliance India Mobile are being migrated to TATA Indicom network at the behest of TATA Indicome staff members and that same is illegal as there is an agreement between the manufacturers of the Reliance handsets and Reliance India Mobile Limited. In view of the statements given by the witnesses, the investigating officer came to a conclusion that prima facie case is made out against the staff members of TATA Indicom and directed two inspectors to conduct raids at the Head Office of TATA Indicom situated in Khan Lathif Khan Estate, Hyderabad. This was ordered in view of specific information received about tampering of Reliance handsets by the staff members of TATA Indicom. Further on specific information about similar such practices going on at TATA Indicom centre opposite to Harihara Kala Bhavan, Secunderabad, the investigating officer along with two other inspectors and panch witnesses proceeded to LM counter at the above place when one Raj Naren, Officer of TATA Indicom revealed that the General Manager (Marketing), Madhavan and Anil Ambati, Manager (Marketing) of TATA Indicom are accepting the handsets belonging to Reliance Infocomm Limited and re-programming with their network with different tariff packages. At the time of conducting raid in Secunderabad Office of TATA Indicom, the investigating officer also came across one Shaik Mustaffa who stated that he purchased handset from Reliance Infocomm network. Therefore, the investigating officer arrested Raj Naren and Shaik Mustaffa, and seized two mobile telephone handsets, one each from the possession of the two arrested persons. On examination, it was found that the handset recovered from Raj Naren is Samsung N191 co-branded with Reliance with ESN No. 3F7AB 832. The said set was migrated to TATA Indicom with No. 56376361 allotted by TATA Indicom. Its original Reliance India Mobile number was 31086523. The two accused along with mobile sets were brought to the office of C. I. D., and kept under surveillance of C. I. D., staff. The team of inspectors sent to the Office of TATA Indicom at Khan Lathif Khan Estate also arrested Syed Asifuddin, Patlay Navin Kumar and Khaja/Gareed Nawaj (petitioners in Criminal Petition No. 2601 of 2003) and Manoj (petitioner No. 2 in Criminal Petition No. 2602 of 2003). Two Samsung N191 co-branded with Reliance re-programmed handsets with distinct ESN and serial numbers were also seized along with 63 application forms of persons who migrated from Reliance India Limited to TATA Indicom along with the affidavits. After getting the details of the search team, the investigating officer filed remand report before the Court of IX Metropolitan Magistrate, Hyderabad on 3-6-2003. In the remand report, it is further stated as under :
The investigation made so far revealed that the Reliance Infocomm is offering under Dhirubhai Ambani Pioneer Scheme a third generation digital handset costing about Rs. 10.500/- for a mere payment of Rs. 3.350/- with a condition to sail with their network for a period of 3 years with option to exit either by surrendering the handset or paying the cost of the handset to the company. Investigation also reveals that there is an agreement existing between the Samsung manufacturers and LG manufacturers With Reliance Infocomm regarding their exclusive models Samsung N191 and LG-2030. These model handsets are to be exclusively used by Reliance India Mobile Limited only. In contravention to the above contract the TATA Indicom staff members who are figured as an accused are tampering with pre-programmed CDM-A digital, handsets belonging to Reliance Infocomm and activating with their network with all dubious means which is an offence under Section 65, I.T. Act. Secondly, the customer is not barred from exiting from the Reliance network as such and to quit from that network he has to fulfil the obligations laid down in the terms and conditions of the Reliance company. Till the lock in period of 3 years is over, the handset supplied to the customer by Reliance Infocomm is a joint property of the company and any kind of transaction on the part of the subscriber without fulfilling the obligations laid down in the terms and conditions is clear case of Breach of Trust since the customer has not settled the accounts with the company. Further as the competition between the CDMA service providers blown out of proportions, the TATA Indicom has hatched a conspiracy to hijack the customers of Reliance Infocomm by all fraudulent means and as a part of their Infocomm by all fraudulent means and as a part of their conspiracy trying to woo the customers of Reliance Infocomm with different tariff packages and trying to trap gullible customers and succeeded in their attempt to attract their customers and so far as many as 63 customers belonging to Reliance Infocomm so far migrated to TATA Indicom by illegal means.
5. These two petitions came to be filed on 17-6-2Q03 for quashing crime No. 20 of 2003 by the means of TATA Indicom. While admitting the petitions, this Court passed orders in criminal miscellaneous petition No. 3951 of 2003 staying all further proceedings including investigation of the crime pending disposal of the main petition. The Public Prosecutor filed criminal miscellaneous petition No. 232 of 2005 for vacating the said order. The matters were "finally heard at that stage itself and are being, disposed of finally.
6. The petitioners in both the petitions are employees of Tata Tele Services Limited (TTSL) which provides basic telephone services including Wireless in Local Loop (WLL) services on non-exclusive basis in the service area including State of Andhra Pradesh under the name of Tata Indicom. All of them are alleged to have committed offences punishable under Sections 420, 409 and 120B of IPC, Section 65 of IT Act and Section 63 of Copyright Act. Learned Senior Counsel for the petitioner, Sri C. Padmanabha Reddy, submits that it is always open for the subscriber to change from one service provider to the other service provider and the subscriber who wants to change from Tata Indicom always takes his handset, to BSNL or to Reliance to get service connected and to give up services of TTSL. According to the learned counsel, the CDMA handsets brought to TTSL by subscribers of other service providers are capable of accommodating two separate lines and can be activated on principal assignment mobile (NAM 1 or NAM 2). The mere activation of NAM 1 or NAM 2 by TTSL in relation to a handset brought to it by the subscriber of other service provider does not amount to any crime. According to learned counsel, an offence under Section 409 of IPC is not at all made out even by going through the FIR, as well as remand report. In the absence of dishonest appropriation or conversion to their own use, alleged criminal breach of trust by the petitioners does not arise.
7. The learned Senior Counsel also submits that there was no allegation against the petitioners that they deceived the second respondent fraudulently and dishonestly to deliver the property or to retain the property and therefore the offence of cheating under Section 420 of IPC does not arise: As Section 120B of IPC is relatable only to the offences under Sections 490 and 420 of IPC, the charge under Section 120B of IPC is misconceived. Insofar as the offence under Section 65 of IT Act is concerned, the submission of the learned Senior Counsel is as follows : A telephone handset is not a computer nor a computer system containing a computer programme. Alternatively, in the absence of any law which is in force requiring the maintenance of "computer source code", the allegation that the petitioners concealed, destroyed or altered any computer source code, is devoid of any substance and therefore the offence of hacking is absent. In the absence of any allegation by the second respondent that they have a copyright to the source code of the computer programme in the handsets supplied by second respondent, the infringement of copyright does not arise. He lastly submits that the allegation that TTSL has a subscriber base of 100 thousand (one lakh) customers in Andhra Pradesh and therefore there was no necessity for TTSL to woo the customers/subscribers of second respondent.
8. The learned Additional Public Prosecutor, Sri H. Prahlad Reddy and the learned counsel for the second respondent, Sri D. Seshadri Naidu, submit that when a cognizable offence under various provisions of different statutes is registered and investigation is pending, this Court cannot quash the F. I. R., at the stage of investigation. After conducting appropriate preliminary investigation and examining witnesses the police have come to the conclusion that the petitioners have committed offences involving highly technical aspects, and therefore unless and until proper evidence is let in before the criminal Court, on mere assertions of the accused a crime cannot be quashed. They would contend that the cell phone handsets with CDMA technology supplied by the second respondent to its subscribers are dedicated to Reliance Indicomm Limited and by interfering with the computer programme and converting the handsets to be responsive to the technology adopted by TTSL is itself an offence and therefore these petitions are not maintainable.
9. The submission of the learned Senior Counsel that even if the allegations in F. I. R., are taken to be true, an offence under Sections 409, 420 and 120B of IPC, is not made put has force. Admittedly, a subscriber of second respondent is given a mobile phone instrument and connection with an understanding that the subscriber has exclusive right to use the phone. If the accused allegedly induced the subscriber of the second respondent to opt for the services provided by TTSL, an offence under Section 409 of IPC., cannot be said to have made out. Section 405 of IPC, defines 'criminal breach of trust The offence of criminal breach of trust requires entrustment with property and dishonest use or disposal of the property by the person to whom the property is entrusted. Both these things are absent. There is no allegation that the property in respect of which the second respondent has right was entrusted to TTSL or its employees who are the petitioners herein. Similarly, an offence of cheating as defined under Section 415 of IPC., is not at all made out because a subscriber of second respondent was never induced to deliver the property to TTSL nor there was dishonest or fraudulent inducement by the petitioners of the second respondent or its subscribers to deliver the property. Indeed the delivery of the property as such is not present in the case. In so far as offence of Section 120B of IPC, is concerned, the same is made in relation to alleged offence under Sections 409, 420 and 120B of IPC., and therefore the petitioners cannot be prosecuted for offences under Sections 409, 420 and 120B of IPC. Insofar as these alleged offences are concerned, if any criminal trial is conducted, the same Would result in miscarriage of justice for as held by the Supreme Court in State of West Bengal v. Swapan Kumar, and State of Haryana v. Bhajan Lal, , when the F.I.R., does not
disclose commission of cognizable offence, the police have no power to investigate such offence. In such a case, this Court would be justified in quashing investigation on the basis of information laid with the police.
10. The petitioners are also alleged to have committed offences under Section 63 of Copyright Act and Section 65 of IT Act. In the considered opinion of this Court, it would be necessary first to deal with the allegations separately and then deal with the case of the prosecution on the basis of prima facie conclusions. Before doing so, it is necessary to briefly mention about computer and computer source code.
11. The I.T. Act defines computer in clause (i) of Section 2(1) of the Act. According to the definition, 'computer' means any electronic, magnetic, optical or other high speed data processing device or system which performs logical, arithmetic and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network. 'Computer system' is defined in clause (1) of Section 2(1) of I.T. Act, as to mean a device or collection of devices, including input and Output support devices which are programmable, capable of being used in conjunction with external files which contain computer programmes, electronic instructions, data storage and retrieval and communication control. The I.T. Act also defines 'computer network' in clause (j) of Section 2(1) of the Act, which reads as under :
(j) computer network' means the interconnection of one or more computer through-
(i) the use of satellite, microwave, terrestrial line or other communication media; and
(ii) terminals or a complex consisting of two or more interconnected computers whether or not the interconnection is continuously maintained;
12. A reading of clauses (i), (j) and (1) of Section 2(1) of the I.T. Act would show that any electronic, magnetic or optical device used for storage of information received through satellite, microwave or other communication media and the devices which are programmable and capable of retrieving any information by manipulations of electronic, magnetic or optical impulses is a computer which can be used as computer system in a computer network.
13. A computer has to be appropriately instructed so as to make it work as per its specifications. The instructions issued .to the computer consists of a series of Os and is in different permutations and combinations. This machine language can be in different form in different manner, which is called computer language. The communicator as well as the computer understand "a language" and mutually respond with each other. When specified or particular instructions are given, having regard to the capacity of the computer it performs certain specified functions. The instructions or programme given to computer in a language known to the computer are not seen by the users of the computer/consumers of computer functions. Known as source code in computer parlance, the programme written in whatever computer language by the person who assembled the programme are not seen by the users. A source code is thus a programme as written by the programmer. Every computer functions as a separate programme and thus a separate source code.
14. Computer source code or source code, or just source or code may be defined as a series of statements written in some human readable computer programming language constituting several text files but the source code may be printed in a book or recorded on a tape without a file system, and this source code is a piece of computer software. The same is used to produce object code. But a programme to be run by interpreter is not carried out on object code but on source code and then converted again. [Diane Rowland and Elizabeth Macdonald : Information Technology Law; Canandish Publishing Limited; (1997). p. 17] Thus, source code is always closely guarded by the computer companies, which develop different function specific computer programmes capable of handling various types of functions depending on the need. The law as we presently see is developing in the direction of recognizing a copyright in the source code developed by a programmer. If source code is copied, it would certainly violate copyright of developer. With this brief background in relation to computer source code, we may now consider in brief the technological aspects of a cell phone and how it works. This is necessary to understand the controversy involved in this case.
15. Alexander Graham Bell invented telephone in 1876. This enabled two persons at two different destinations to communicate with each other through a network of wires and transmitters. In this, the sound signals are converted into electrical impulses and again re-converted into sound signals after reaching the destination. The radio communication was invented by Nikolai Tesla in 1880, which was formerly presented by Guglielmo Marconi in 1894. A combination of telephone technology and radio technology resulted in radio telephone, which became very popular as technology advanced. Two persons can communicate with each other through radio telephone without there being any intervention of network of wires and other infrastructure. The radio signals travel through atmosphere medium and remain uninterrupted as long as the frequency at which radio signals travel is not disturbed. The science realized that the radio telephone communication required heavy equipment by way of powerful transmitter and that it can facilitate only 25 people to use the system. The problem was solved by communication technology by dividing a large area like a city into small cells and any two persons connected to a cell system - at a time receive 800 frequencies and crores of people can simultaneously communicate with each other at the same time. That is the reason why the term 'cell mobile phone or cell phone'.
16. In the cell technology, a person using a phone in one cell of the division will be plugged to the central transmitter, which will receive the signals and then divert the signals to the other phone to which the same are intended. When the person moves from one cell to other cell in the same city, the system i.e., Mobile Telephone Switching Office (MTSO) automatically transfers signals from tower to tower when the telephone user moves from one division to another. [How Cell Phones Work? See website - ttp: //electronics, howstuffworks. com. Much of the information on technological aspects of Cell Phones is taken from this. cell phone, it looks the database and diverts the call to that cell phone by picking up frequency pair that is used by the receiver cell phone.] Another advantage in a cell phone compared with radio phone is that when the radio phone is used, one person can talk at a time as both the persons can communicate simultaneously and also receive sound signals simultaneously.
17. All cell phone service providers like Tata Indicom and Reliance India Mobile have special codes dedicated to them and these are intended to identify the phone, the phone's owner and the service provider. To understand how the cell phone works, we need to know certain terms in cell phone parlance. System Identification Code (SID) is a unique 5-digit number that is assigned to each carrier by the licensor. Electronic Serial Number (ESN) is a unique 32-bit number programmed into the phone when it is manufactured by the instrument manufacturer. Mobile Identification Number (MIN) is a 10-digit number derived from cell phone number given to a subscriber. When the cell phone is switched on, it listens for a SID on the control channel, which is a special frequency used by the phone and base station to talk to one another about things like call set-up and channel changing. If the phone cannot find any control channels to listen to, the cell phone displays "no service" message as it is out of range. When cell phone receives SID, it compares it to the SID programmed into the phone and if these code numbers match, cell knows that it is communicating with its home system. Along with the SID, the phone also transmits registration request and MTSO which keeps track of the phone's location in a database, knows which cell phone you are using and gives a ring. When MTSO gets a call intended to one
18. The essential functions in the use of cell phone, which are performed by the MTSO, is the central antenna/central transmitter and other transmitters in other areas well coordinated with the cell phone functions in a fraction of a second. All this is made possible only by a computer, which simultaneously receives, analyses and distributes data by way of sending and receiving radio/electrical signals.
19. So as to match with the system of the cell phone provider, every cell phone contains a circuit board, which is the brain of the phone. It is a combination of several computer chips programmed to convert analog to digital [Analog - Anything analogous to something else.
Analog computer - A computing machine so designed and constructed as to provide information in terms of physical quantities analogous to those in which the problems are formulated.
Digital - 1. Of, pertaining to, or like the fingers or digits 2. Digitate. 3. Showing information, such as numerals, by means of electronics : digital watches.
Digital computer - An electronic computing machine which receives problems and processes the answers in numerical form, especially one using the binary system.
(See "The New International Webster's Comprehensive Dictionary of the English Language", Encyclopedic Edition, 2003 edn., pp. 52 and 358).]
and digital to analog conversion and translation of the outgoing audio signals and incoming signals. This is a micro processor similar to the one generally used in the compact disk of a DeskTop computer. Without the circuit board, cell phone instrument cannot function. Therefore, it is not possible to accept the submission that a cell phone is not a computer. Even by the very definition of the computer and computer network as defined in IT Act, a cell phone is a computer which is programmed to do among others the function of receiving digital audio signals, convert it into analog audio signal and also send analog audio signals in a digital form externally by wireless technology.
20. The main allegation against the petitioners is that the MIN of Reliance phone is irreversibly integrated with ESN and the petitioners hacked ESN so as to wean away RIM customers to TATA Indicom service. The question is whether the manipulation of this electronic 32-bit number (ESN) programmed into Samsung N191 and LG-2030 cell phone instrument exclusively franchised to second respondent amounts to altering source code used by these computer handsets i.e., cell phone instruments. In the background facts, a question would also arise whether such alteration amounts to hacking with computer system? If the query answered in the affirmative, it is always open to the police to alter the F. I. R., or it is always open to the criminal Court to frame a charge specifically with regard to hacking with computer system, which is an offence under Section 66 of the IT Act. At this stage, we may read Sections 65 and 66 of the IT Act.
65. Tampering with computer source documents :- Whoever knowingly or intentionally conceals, destroys or alters or intentionally or knowingly causes another to conceal, destroy, or alter any computer source code used for a computer, computer programme, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force, shall be punishable with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.
Explanation.- For the purposes of this, "computer source code" means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form.
66. Hacking with Computer System :- (1) Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking.
(2) Whoever commits hacking shall be punished with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.
21. The offence of tampering with computer source documents under Section 65 of the IT Act is made out when a person,
(i) intentionally conceals, destroys or alters a computer source code used for a computer, computer programme, computer system or computer network;
(ii) intentionally or knowingly causes another to conceal, destroy or alter any computer source code used for a computer, computer programme, computer system or computer network; and
(iii) (a) However, the offence is made out only when computer source code is required to be kept or
(b) when computer source code is maintained by law for the time being in force.
22. The punishment prescribed by law for the above offence is imprisonment up to three years or a fine of Rs. 2,00,000/- or both.
23. What is a computer source code is also defined in the Explanation to Section 65 of IT Act, which reads as under :
Explanation : For the purposes of this, "computer source code" means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form.
24. By the very definition of 'computer source code,' a) list of programmes; b) computer commands; (c) design and layout and d) programme analysis of computer resource in any form, is a 'computer source code' for the purpose of Section 65 of I.-T. Act. Going by the definition, ESN of Samsung N191 model cell phone handset or ESN of LG-2030 model cell phone handset exclusively used by the second respondent as well as SID of second respondent come within the definition of computer source code. Every cell phone operator is required to obtain SID from the licensor i.e., Government of India. Further, ESN is a permanent part of the phone whereas MIN and SID are programmed into phone when one purchases a service plan and have the phone activity. When a customer of second respondent opts for its services, the MIN and SID are programmed into the handset. If some one manipulates and alters ESN, as per the case of second respondent, Samsung/LG handsets which are exclusively used by them become usable by other service providers like TATA Indicom. Therefore, prima facie, when the ESN is altered, the offence under Section 65 of I.T. Act is attracted because every service provider like second respondent has to maintain its own SID code and also gives a customer specific number to each instrument used to avail the services provided. The submission that as there is no law which requires a computer source code to be maintained, an offence cannot be made out, is devoid of any merit. The disjunctive word "or" is used by the Legislature between the phrases "when the computer source code is required to be kept" and the other phrase "maintained by law for the time being in force" and, therefore, both the situations are different. This Court, however, hastens to add that whether a cell phone operator is maintaining computer source code, is a matter of evidence. So far as this question is concerned, going by the allegations in the complaint, it becomes clear that the second respondent is in fact maintaining the computer source code. If there is allegation against any person including the petitioners, certainly an offence under Section 65 of I.-T. Act is made out. Therefore, the crime registered against the petitioners cannot be quashed with regard to Section 65 of the I.-T. Act.
25. That takes me to the allegation that the petitioners violated Section 63 of Copyright Act, 1957. So as to keep pace with the advancement in science and technology especially in the field of communication and data processing, Parliament has amended Copyright Act, 1957 in 1995 bringing within its fold computer programme also as literary work to be protected by Copyright Act.
26. Section 2(ffb), (fie) and 2(o) of Copy-right Act read as under.
2(ffb) "computer" includes any electronic or similar device having information processing capabilities;
2(ffc) "computer programme" means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result;
2(o) "literary work" includes computer programmes, tables and compilations including computer databases;
27. Section 14 defines the copyright as exclusive right subject to provisions of the Copyright Act, to do or authorise the doing of any of the Acts enumerated in respect of the work or substantial part thereof. Section 14(b) of the Copyright Act reads as under :
14. Meaning of copyright.- For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely :-
(b) in the case of a computer programme,-
(i) to do any of the acts specified in Clause (a); (ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme :
Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental;
(c) and (d) omitted.
28. Therefore, reading Section 2(o), (ffc) and Sections 13 and 14 together, it becomes clear that a computer programme is by very definition original literary work and, therefore, the law protects such copyright. Under Section 63 of the Copyright Act, any infringement of the copyright in a computer programme/source code is punishable. Therefore, prima facie, if a person alters computer programme of another person or another computer company, the same would be infringement of the copyright. Again the entire issue in this regard is subject to the evidence that may be led by the complainant at the time of trial. This Court, however, examined the submission of the learned senior counsel for the petitioners in the background of the provisions of the Copyright Act and observations made herein are not intended to decide the question one way or the other. The trial Court has to deal with these aspects.
29. As noticed hereinabove, unless and until investigation by the Police into a complaint is shown to be illegal or would result in miscarriage of justice, ordinarily the criminal investigation cannot be quashed. This principle is well settled and is not necessary to burden this judgment with the precedents except making a reference to R.P. Kapoor v. State of Punjab, ; State of Haryana v.
Bhajan Lal, 1992 Cri LJ 527 (SC) (supra) and State of Tamil Nadu v. Thirukkural Permal, .
30. In the result, for the above reasons, Crime No. 20 of 2003 insofar as it is under Sections 409, 420 and 120-B of Indian Penal Code, 1860 is quashed and insofar as the crimes under Section 65 of the Information Technology Act, 2000 and Section 63 of the Copyright Act, 1957, the criminal petitions are dismissed. The C.I.D. Police, which registered Crime No. 20 of 2003, is directed to complete investigation and file a final report before the Metropolitan Magistrate competent to take cognizance of the case within a period of three months from the date of receipt of this order.
31. The criminal petitions are accordingly dismissed.
Transit Remand meaning:
Sec.80 of Crpc. Procedure of arrest of person against whom warrant issued.
When a warrant of arrest is executed outside the district in which it was issued, the person arrested shall, unless the court which issued the warrant is within thirty kilometers of the place of arrest or is nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction the arrest was made, or unless security is taken under section 71, be taken before such Magistrate or District Superintendent or Commissioner.
Sec.76 of Crpc. Person arrested to be brought before court without delay.
The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the court before which he is required by law to produce such person:
Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court.
See the Judgment:
“No transit remand as required under section 80 read with section 76 Cr.P.C. was taken by the arresting officer. The petitioner was not produced, after his arrest, before the Magistrate for seeking transit remand as per the provisions contained in section 76 Cr.P.C.”
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (Cr) (H.B) No. 116 of 2012
Ram Bilash Sahu .... Petitioner versus
1. The Union of India through the Director,
Central Bureau of Investigation(CBI),
New Delhi ;
2. The Head of the Branch, CBI, ACB, 2, Booty Road, PO & P.S. Bariatu, Dist. Ranchi.
3. The Head of Branch, CBI, AHD, Baily Road, Patna.
4. The Secretary, Home Department, Govt of Bihar,Old Secretariat, Patna;
5. The Superintendent of Police, Madhubani (Bihar)
6. The Officer In Charge,
Ladania P.S; Dist. Madhubani (Bihar)... Respondents.
Coram : HON'BLE MR. JUSTICE R.K.MERATHIA HON'BLE MR. JUSTICE D.N.UPADHYAY
For the petitioner: Mr Krishna Murari
For the respondent CBI : Mr. Md. Mokhtar Khan.
Date of CAV : 02/7/2012 Date of pronouncement: 18/7/2012
Heard the counsel for the parties.
2 This Criminal Writ Petition has been preferred by the petitioner for quashing of the order dated 24.2.2012 ( Annexure-6) passed by the Special Judge, CBI, Ranchi, in connection with RC case No. 20(A)/2009R whereby and whereunder the petitioner has been remanded to judicial custody on the ground of non compliance of section 41(B) of the Code of Criminal Procedure and section 80 read with section 76 of the Cr. P.C. The legality of the order has also been challenged on the ground of violation of Article 22(1) and 22(2) of the Constitution of India. It is further prayed that the petitioner may be directed to be released forthwith from custody and an exemplary compensation be granted for his illegal detention by the CBI. 3 Respondent CBI has appeared and filed counter affidavit stating inter alia that the petitioner is in Judicial custody since 24.2.2012 and he is under lawful detention and therefore instant writ petition is not maintainable. It is also contended that the petitioner 2
was wanted in connection with RC case No. 20(A)/2009 in which he has been charge sheeted but he did not appear even after issuance of warrant of arrest and proclamation.
4. The background behind filing of this writ petition is required to be reproduced in brief as follows : The petitioner was posted as an Assistant Engineer, Road Construction Sub Division, Chaibasa with effect from 3.1.2007. During his tenure in the said department, tender was invited from the office of the Executive Engineer, against repair work in KM 61, 62, 63 & 64 (763M) of Seraikella- Chaibasa Road and KM-1(150M, 2(800M), 3(800M), 4(800M) and 5(150M) of Chaibasa Bye-Pass Road. The work was allotted to respective contractors, but it was found that the work done was not satisfactory and the money allotted against said contract work was defalcated causing loss to the Government in connivance with the officers of the concerned department and the contractors. As a result, FIR was lodged on 22.10.2009 vide RC case No. 20(A)/2009R under sections 120B, 420,467, 468, 471 IPC and section 12(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 against the then Executive Engineer, contractor M/s Navnirman Builders & others. Pursuant to the said case, the petitioner was summoned by the investigating officer of the CBI and he was also suspended by the Road Construction Department vide Letter No. 6576 dated 4.11.2010 and a departmental enquiry was set up by letter No. 6591 dated 8.11.2010. On the same set of charges and evidence of witnesses, charge sheet No. 12 dated 3.12.2010 under section 120B of the Indian Penal Code and section 12(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 was filed by the CBI against the petitioner and others. Consequently, cognizance was taken on 4.12.2010 and processes to compel appearance of the accused persons were issued. It is necessary to mention here that the petitioner applied for grant of anticipatory bail vide ABA No. 904 of 2011 which was dismissed as withdrawn on 19.11.2011. The petitioner had also preferred Cr.M.P. No. 532 of 2011 for quashing of the entire criminal 3
prosecution launched against him vide aforesaid RC case No. 20(A)/2009R, but it was dismissed on 28.2.2012 on which date, he was already in judicial custody. Since the petitioner was evading his appearance and concealing himself, he was declared proclaimed offender and accordingly, proclamation was issued by the concerned court giving present and permanent address of the petitioner. In view of the warrant of arrest and the proclamation issued, the petitioner was arrested on 22.2.2012 from his native village within Ladania P.S. District Madhubani from where he was brought to PATNA CBI office and detained during night in the CBI lock-up. On the next day he was produced before medical officer for his medical examination and then brought to Ranchi on 24.2.2012 and kept in CBI lock-up at Ranchi between 6.00 a.m. to 12 noon and then forwarded to the court of the Special Judge, CBI, Ranchi from whose court, warrant of arrest and proclamation were issued against the petitioner in connection with RC case No. 20(A)/2009R.
5 It is contended on behalf of the petitioner that the CBI has violated the provisions contained under Article 21 read with Article 22(2) of the Constitution. Liberty of the petitioner was curtailed and he was illegally detained by the CBI within the districts of Madhubani, Patna and Ranchi. After his arrest, no arrest memo was prepared as required under section 41(B) of the Code of Criminal Procedure and he was not produced before the nearest Magistrate, as envisaged under section 57 of the Code of Criminal Procedure. No transit remand as required under section 80 read with section 76 Cr.P.C. was taken by the arresting officer. The petitioner was not produced, after his arrest, before the Magistrate for seeking transit remand as per the provisions contained in section 76 Cr.P.C. The detention of the petitioner by the CBI was in utter violation of Article 22(2) and therefore the learned Special Judge, CBI should not have remanded the petitioner to judicial custody. Thus the order dated 24.2.2012 is illegal ab initio and is liable to the quashed and the petitioner be directed to be released forthwith and exemplary compensation be awarded.
6 The petitioner has mainly relied upon the following judgments :
1997(1) SCC 416 ( D.K.Basu Vs. State of West Bengal); 1969(1) SCC 292 ( Madhu Limaye & Others Vs. State of Bihar);
1999(3) SCC 715 (Manoj Vs. State of M.P).
7 We have carefully examined the relevant provisions of law highlighted from both sides and have also considered the contention made in the writ petition. It appears that the petitioner has tried to mingle the provisions contained in Chapter V & Chapter VI of the Code of Criminal Procedure ( hereinafter referred to as the Code). Chapter V of the Code deals with the power conferred on the Police who may arrest a person without warrant. It is true that after pronouncement of judgment by the Hon'ble Supreme Court in the case of D.K. Basu ( supra), certain amendments have been made in Chapter V of the Code of which Section 41B is the result which reads as follows :
Section 41B : Procedure of arrest and duties of officer making arrest .- "Every police officer while making an arrest shall -
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;
(b)prepare a memorandum of arrest which shall be -
(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the
memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest."
8 The power given to Police to arrest a person without warrant was grossly misused and it was considered by the Apex Court in the case of D. K. Basu (supra) and guideline was given to protect the constitutional guarantee that if a person is arrested 5
without warrant, he must be made acquainted with the ground of his arrest, time and place of arrest for which a memorandum of arrest is required to be prepared. The arrest of such person must be made known to the relative(s) of such arrested person and he should be given an opportunity to consult or engage lawyer of his choice and so on. This requirement of the Act is derived from Article 22(1) of the Constitution.
9 Section 57 of the Code of Criminal Procedure speaks as follows:
"57. Person arrested not to be detained more than twenty-four hours.- No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a
Magistrate under section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court."
Again, the object is that the person so arrested shall not be harassed or detained in police custody for a longer period and, therefore, it is indicated that he must be produced before the Magistrate within 24 hours, so that arrest of such person and his detention, if necessary, may be justified by judicial order. Although, the petitioner had taken all these plea, but we feel that Chapter- V is not relevant in the context of the arrest and detention of the petitioner in the present case, rather, Chapter VI shall be more applicable. Before discussing the provisions contained in sections 76, 80, 81 and 82 of the Code, we feel inclined to deal with the respective events highlighted in the writ petition. The institution of the RC case No. 20(A)/2009R was well within the knowledge of the petitioner when he was summoned by the investigating officer; departmental proceeding was initiated and he was suspended on the charges appearing in the FIR.
10 The petitioner had preferred the application for grant of anticipatory bail which was dismissed on 19.11.2011. When he did not get a favourable order, Cr.M.P. No. 532 of 2011 was preferred 6
which was also dismissed on 28.2.2012. In view of the above admitted facts, it cannot be said that the petitioner had no knowledge about the progress prevailing in RC case No. 20(A)/2009R and the subsequent orders passed by the Special Judge, CBI. What we mean to bring on record is that even after submission of the charge- sheet and order of cognizance, the petitioner did not appear and warrant of arrest (non-bailable) was issued. When the Special Judge, CBI got himself satisfied with the submission made by the investigating officer that the petitioner is concealing himself and evading his appearance, proclamation against him was issued indicating present and permanent address of the petitioner. Even after issuance of proclamation, the petitioner did not appear and finally he was arrested by the CBI officials on 22.2.2012 from a village lying within Ladania Police Station of the district of Madhubani. Therefore, the arrest of the petitioner was in pursuance of the warrant of arrest issued against him by the court of Special Judge, CBI, Ranchi, in connection with RC case No. 20(A)/2009R. Section 76 of the Code requires that the police officer or other person executing a warrant of arrest shall ( subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the court before which he is required by law to produce such person. It is further provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court.
11 In this context, the procedure laid down under section 80 of the Code is applicable which reads as follows : "Section 80. Procedure on arrest of person
against whom warrant issued.- When a warrant of arrest is executed outside the district in which it was issued, the person arrested shall, unless the Court which issued the warrant is within thirty kilometres of the place of arrest or is nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction the arrest was made, or unless security is taken under section 71, be taken before such Magistrate or District Superintendent or 7
12 In view of the above provisions, the petitioner who was arrested at Madhubani was required to be produced before the nearest Magistrate within 24 hours for seeking transit remand, so that he could be produced before the court which issued the warrant of arrest. According to the admitted case of the petitioner, he was produced before the Special Judge, CBI, Ranchi, on 24.2.2012, i.e. after about 30 hours of his arrest. In the counter affidavit, CBI has explained the delay. However, the alleged non-compliance of section 80 read with section 76 of the code can, at best, be termed as irregularity. Now we have to consider whether, only because the petitioner after his arrest was not produced before the nearest Magistrate for seeking transit remand, the impugned order dated 24.2.2012 (Annexure 6) passed by the Special Judge, CBI, Ranchi in RC case No. 20(A)/2009R could be considered illegal and the reason so assigned is sufficient to quash it?
To find out the answer, we have gone through the judgments cited from both sides. The facts and circumstances available in the case of D.K. Basu Vs. State of W.B. (1997  SCC 416) and the case of Madhu Limaye (1969(1)SCC 292) and the grounds taken by the petitioners in those cases are not available in the case at hand. So far the case of Manoj Vs. State of M.P. (1993(3) SCC 715 ( supra) is concerned, it has been discussed and distinguished in the case of Surendra Sardar Vs. State of Bihar (2000(3) PLJR 238) wherein at paragraph 6 it was held as under : "6.It is well settled that in matters of Habeas Corpus, the relevant date to determine as to whether the remand is legal or not is the date of hearing of the application and if on the relevant date the remand is found to be legal a person is not entitled to be released. In this connection, reference may be made to a Full Bench Judgment of this Court in the case of Babu Nandan Mallah vs. State reported in ( 1971 BLJR 1058: 1971 PLJR 605), wherein it has been held that the appropriate time to find out whether the detention is illegal and a writ of habeas corpus should issue, is the date of hearing the application. It is not a condition 8
precedent or a valid order of remand that the accused must at the time of remand, be in valid custody under a valid remand order. If on the date of hearing of the application the remand is valid, then no writ of habeas corpus can be issued only on the ground that at earlier point of time the remand was invalid."
Again the Hon'ble Supreme Court in the case of Pragyna Singh Thakur Vs. State of Maharashtra ( 2011) 10 SCC 445 in para 63 held as under :
"63. The decisions relied upon by the learned counsel for the appellant do not support the plea that in every case where there is violation of Article 22(2) of the Constitution, an accused has to be set at liberty and released on bail. Whereas, an accused may be entitled to be set at liberty if it is shown that the accused at that point of time is in illegal detention by the police, such a right is not available after the Magistrate remands the accused to custody. Right under Article 22(2) is available only against illegal detention by the police. It is not available against custody in jail of a person pursuant to a judicial order. Article 22(2) does not operate against the judicial order."
13 Since the petitioner was wanted in connection with RC case No. 20(A)/2009R and to compel his appearance, processes were issued and in compliance thereof, he was arrested and forwarded to Jail custody on 24.2.2012 and thus he is in judicial custody now. In view of the observations made by the Apex Court in the case of Pragyna Singh Thakur (supra) and Surendra Sardar (supra), we do not feel inclined to issue any direction for release of the petitioner in this Cr. Writ Petition and non-compliance of provisions contained u/s 76 of the Code, in such circumstance can only be an irregularity which shall not be a ground to declare the remand illegal.
This writ petition is, accordingly, dismissed.
Ambastha/- ( D.N. Upadhyay,J.)
Wednesday, 2 January 2013
In this connection, I may profitably use the dictum of the Apex Court in a decision in 1992 Supp (1) SCC 335 : (1992 Cri LJ 527) in the case of State of Haryana v. Bhajan Lal wherein it was held by the Apex Court that.
"We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases, that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."
See the judgment of quashing of charge sheet.
Supreme Court of India
K.Neelaveni vs State Rep.By Insp.Of Police & Ors. on 22 March, 2010
Author: H C Prasad
Bench: D.K. Jain, C.K. Prasad
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.574 OF 2010
[arising out of SLP(Crl.)No.3562 of 2009]
K. NEELAVENI ..... APPELLANT VERSUS
STATE REP. BY INSP. OF
POLICE & ORS. .....RESPONDENTS J U D G M E N T
HON. C.K. PRASAD, J.
1. The appellant-wife aggrieved by the order dated 29th September, 2008 passed by the High Court of Judicature at Madras in Criminal O.P. No. 23473 of 2008, whereby it had quashed the charge sheet under Sections 406 and 494 of the Indian Penal Code, has preferred this appeal seeking special leave to appeal.
2. Shorn of unnecessary details, the facts giving rise to the present appeal are that the appellant-wife K. Neelaveni on 07/11/2002 gave a written report to the Inspector of Selaiyur Police Station, inter alia, alleging
that her marriage was performed with accused respondent No. 2 - S.K. Siva Kumar on 3rd September, 1997 in which gold ornaments and various other household articles were given by her parents. She had further alleged that her husband used to abuse her and her family members under influence of alcohol and demanded Rs. 50,000/- from her parents. According to the First Information Report, when she was pregnant, on scan it was found that she was carrying a female foetus, her husband and his family members started harassing her and insisted for aborting the child. On her refusal to give consent for abortion according to the informant on 18.1.1998, her husband, mother-in-law, brother-in-law and sister-in-law assaulted her and had driven her out from the matrimonial home and the husband left her on way to her parents house. She gave birth to a girl child on 25.6.1998.
3. Informant in the written report had further alleged that her husband had married another lady namely, Bharathi without her consent with the help and in the presence of other accused persons. She had further alleged that a female child was born to them in the wedlock.
4. On the basis of the aforesaid written report, a case under Sections 406, 494 and 498A of the Indian Penal Code
was registered against the accused persons. Police after usual investigation submitted charge sheet under Sections
406. 494 and 498A of the Indian Penal Code.
5. Accused persons namely respondent Nos. 2 to 13 filed petition before the High Court for quashing the charge sheet under Sections 406 and 494 of the Indian Penal Code, inter alia, contending that in the absence of any material to show that "the second marriage was duly performed with religious rites and essential ceremonies" charge sheet under Section 494 of the Indian Penal Code is fit to be quashed. It was, further, contended that allegations made in the First Information Report and the materials collected during the course of investigation do not fulfill the ingredients of offence under Section 406 of the Indian Penal Code. Aforesaid submissions found favour with the High Court and it had quashed the charge sheet under Sections 406 and 494 of the Indian Penal Code. While doing so the High Court observed as follows:-
"As rightly contended by the learned
counsel for the petitioners, a careful reading of the complaint of the second respondent, statements of witnesses recorded under Section 161 Cr.P.C. and the charge sheet do not reveal the ingredients constituting the offences under Section 494 and 406 IPC, yet the first respondent has chosen to file the charge for the said
offences. Therefore, this court is constrained to
quash the charge sheet as against the petitioners as far as the offences under Sections 406 and 494 IPC alone are concerned. It is made clear that the charge sheet as against the petitioners under Section 498A IPC is not quashed."
6. Mr. Guru Krishna Kumar, the learned counsel on behalf of the appellant submits that the conclusion arrived at by the High Court that the charge sheet did not reveal the ingredients constituting the offences under Sections 494 and 406 of the Indian Penal Code is erroneous. He draws our attention to the First Information Report and submits that there is an allegation of the second marriage and even birth to a child and hence it cannot be said that ingredients constituting offence under Section 494 of the Indian Penal Code do not exist. He pointed out that the High Court while considering the application for quashing of the charge sheet was obliged to take into account the allegations made in the First Information Report and the materials collected during the course of investigation. He submits that in case the allegations made in the First Information Report and the materials collected during the course of the investigation are taken into account, same constitute an offence under Section 494 of the Indian Penal code. It has further been pointed out that gold ornaments and household articles were given to the husband and she
was driven out from the matrimonial home on a refusal to consent for abortion. Accordingly, Mr. Guru Krishna Kumar submits that allegation in the First Information Report and the materials collected during the course of investigation clearly constitute offences under Sections 406 and 494 of the Indian Penal Code.
7. Mr. R. Shunmugasundaram, learned senior counsel appearing on behalf of respondent Nos. 2 to 13, however, submits that the ingredients of an offence under Sections 406 and 494 of the Indian Penal Code do not exist and, therefore, the High Court did not err in quashing the charge sheet under Sections 406 and 494 of the Indian Penal code.
8. We have given our thoughtful consideration to the submissions advanced and we are inclined to accept the submission of Mr. Guru Krishna Kumar, learned counsel for the appellant. From a perusal of the allegations made in the First Information Report, it is evident that the appellant has clearly alleged that her husband had married another lady namely Bharathi and the said marriage had taken place in the presence and with the support of other accused persons. She had also stated that from the second marriage with Bharathi a girl child was born. In the First
Information Report, it had clearly been alleged that besides gold ornaments other household articles were given in marriage and further she was subjected to cruelty and driven out from the matrimonial home by the accused persons. In our opinion, the allegations made in the First Information Report, at this stage, have to be accepted as true, and allegations so made prima facie, constitute offences under Sections 406 and 494 of the Indian Penal Code. It has to be borne in mind that while considering the application for quashing of the charge sheet, the allegations made in the First Information Report and the materials collected during the course of the investigation are required to be considered. Truthfulness or otherwise of the allegation is not fit to be gone into at this stage as it is always a matter of trial. Essential ceremonies of the Marriage were gone into or not is a matter of trial.
9. From what we have said above, we are of the opinion that the High Court erred in holding that the charge sheet does not reveal the ingredients constituting the offences under Sections 494 and 406 of the Indian Penal Code.
10. It seems that accused persons approached the High Court for quashing of the charge sheet even before any order was passed by the Magistrate in terms of Section 190
of the Code of Criminal Procedure. In our opinion, when a report is submitted to the Magistrate he is required to be prima facie satisfied that the facts disclosed therein constitute an offence. It is trite that the Magistrate is not bound by the conclusion of the investigating agency in the police report i.e. in the charge sheet and it is open to him after exercise of judicial discretion to take the view that facts disclosed in the report do not constitute any offence for taking cognizance. Quashing of Sections 406 and 494 of Indian Penal Code from the charge sheet even before the exercise of discretion by the Magistrate under Section 190 of the Code of Criminal Procedure is undesirable. In our opinion, in the facts and circumstances of the case, quashing of the charge sheet under Sections 406 and 494 of the Indian Penal Code at this stage in exercise of the power under Section 482 of the Code of Criminal Procedure was absolutely uncalled for.
11. It is relevant here to state that offences under Sections 406, 494 and 498A are triable by a Magistrate, First Class and as all these offences are punishable with imprisonment for a term exceeding two years, the case has to be tried as a warrant case. The procedure for trial of warrant case by a Magistrate instituted on a police report
is provided under Chapter XIX Part A of the Code of Criminal Procedure, 1973. Section 239 inter alia provides that if upon considering the police report and the document sent with it under Section 173 and making such examination, if any, of the accused and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. It seems that the accused persons even before the case had reached that stage filed an application for quashing of the charge sheet under Sections 406 and 494 of the Indian Penal Code. In our opinion, the High Court ought not to have interfered after the submission of the charge sheet and even before the Magistrate examining as to whether the accused persons deserved to be discharged in terms of Section 239 of the Code of Criminal Procedure.
12. There is yet another reason which the High Court ought to have considered before quashing the charge sheet under Sections 406 and 494 of the Indian Penal Code. All the offences are triable by Magistrate and quashing of the charge sheet under Sections 406 and 494 of the Indian Penal Code had not resulted into exonerating the accused persons from facing the trial itself. Matter would have been
different had the offences under Sections 406 and 494 of the Indian Penal Code been triable as sessions case. In matter like this the High Court ought to have allowed the provisions of the Code of Criminal Procedure referred to above its full play.
13. For all these reasons we are unable to sustain the order impugned in the present appeal.
14. We hasten to add that all the observations made in this judgment are for the purpose of disposal of this appeal and shall have no bearing during the course of trial.
15. In the result, we allow the appeal and set aside the impugned judgment.
[ D.K. JAIN ]
[ C.K. PRASAD ]
Lala Shyamlal Jain Ship Breaking ... vs State Of West Bengal And Anr. 2004 CriLJ 4067
Author: P K Biswas
Bench: P K Biswas
Pradip Kumar Biswas, J.
1. In C.R.R No. 303 of 2003, petitioner No. 1 Lala Shaymlal Jain Ship Breaking Co. Pvt. Ltd. and six others have filed one application under Section 482 of the Code of Criminal Procedure seeking for quashing of Charge sheet under Section 198 dated 27-11-2002 under Sections 420/403/ 406/421/422/120B of the Indian Penal Code pending before the Ld. Sub Divisional Judicial Magistrate, Howrah (Sadar) in connection with G.R. Case No. 85 dated 15-5-2002 under Sections 420/403/406/421/ 422/120B of the Indian Penal Code.
2. Similarly, in C.R.R. No. 304 of 2003. M/s. Amar Steel Industries and six others have also filed another application under Section 482, of Cr.P.C. seeking for quashing of the charge sheet No. 199 dated 27-11-2002 under Sections 420/421/422/ 403/406/120B of I.P.C. now pending before the Ld. S.D.J.M., Howrah (Sadar) in connection with G.R. Case No. 790 dated 15-5-2002 under Sections 420/403/406/421/422/ 120B of I.P.C.
3. The broad facts of challenge in both these applications being similar, those are taken up for decision analogously by a single Order.
4. The present petitions have alleged that the petitioner No. 1 is the pioneer in the business of ship breaking in eastern India and petitioner Nos. 2 to 7 are the directors of petitioner No. 1 and/or partners of petitioner No. 1 and/or guarantors of the loan taken by the petitioner No. 1 from O.P. No. 2. In the year 1985, the petitioners opened a bank account with the opposite party No. 2 at its Liluah Branch and in order to facilitate smooth running of the business, they decided to avail of credit facilities with the said branch of opposite party No. 2 and in turn they entered into an Agreement of Hypothecation of goods and Agreement of Hypothecation of Book Debts and also pledged several movable and immovable assets as collateral security against the credit limit obtained from the opposite party No. 2 and the petitioners also executed some other supplementary agreements. In course of their business, petitioners purchased a ship and for such purpose, one application was filed by petitioner No. 1 for opening an irrevocable letter of Credit by the opposite party No. 2 in favour of Titan Limited for U.S. D. 900,000 on 28-8-2002 and petitioner No. 1 issued a trust receipt in favour of opposite party No. 2 with regard to the purchase of the said ship and after dismantling, the parts of the said ship were sold to various customers, but the creditors who purchased those parts, failed to keep their commitment with regard to payment of a huge sum and the said fact was brought to the notice of opposite party No. 2, when the stock statement and /or list of Sundry Debtors of the petitioner No. 1 was submitted to the opposite party No. 2, but all of a sudden, the petitioners received a demand notice from the learned counsels of the O.P. No. 2 for recovery of an amount of Rs. 5 crores and odd with interest upto 31-12-2001 and thereafter on 18-2-2002, the opposite party No. 2 file an application under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 before the Kolkata Debts Recovery Tribunal No. II. The petitioners received summons to appear before the said Tribunal and they duly appeared before the said Tribunal through their learned Advocates and the aforesaid case is till pending before the said Tribunal, but despite filing of the aforesaid application, one written complaint was lodged by Mr. A.K. Dev, Senior Manager of Lilauh Branch and Constituted Attorney of the Oriental Bank of Commerce with the Officer-in-Charge of the Bali Police Station, inter alia, alleging commission of offence punishable under Sections 420/403/406/ 421/422/120B of the Indian Penal Code committed by the present petitioners alleging therein among others that the first opposite party in the petition of complaint with the assistance and being aided and abetted by opposite party Nos. 2 to 7 with a view to making wrongful gain to themselves and to cause wrongful loss to the bank disposed off the hypothecated stocks of goods and scraps and other materials and did not deposit the sale proceeds thereof with the Bank. It was also alleged that with the similar intention, the aforesaid opposite party being aided and abetted by opposite party Nos. 2 to 7 collected the book debts and did not deposit the same with the Bank and alleging further that it was apparent that there was entrustment of hypthecated assets and there were misappropriation by the opposite parties and use thereof in violation of the said contract with dishonest intention and in breach of trust and also alleged that the opposite parties have dishonestly and fraudulent removed, concealed and delivered to other those assets and properties charged and hypothecated to a Nationalised Bank which are kept in the trust of the opposite parties and as such this was the dishonest intention and to prevent realisation of public money out of the said properties and ultimately it was also alleged that the facts disclosed in the petition of complaint clearly disclosed the commission of offence punishable under Sections 120B/420/403/405/421/422 of I.P.C.
5. Acting on the aforesaid letter, case was registered and in connection with the aforesaid case the present petitioners surrendered before the Courts on various dates and were ultimately released on bail by the concerned court.
6. It has further been alleged by the petitioners that on completion of a perfunctory investigation, the investigating officer submitted a report in the final form being charge-sheet being No. 198 dated 27-11-2002 under Sections 420/421/427/403/406/120B of the Indian Penal Code against the petitioners in C.R.R. No. 303 of 2003. Charge-sheet No. 199 dated 27-11 -2002 under Sections 420/421 /422/403/406/120B of I.P.C. was also filed against the petitioners in C.R.R. No. 304 of 2003).
7. It was further alleged that pursuant to the filing of the aforesaid charge sheets, the learned Magistrate by his order dated 10-12-2002 was pleased to take cognizance of the offence and issued warrant of arrest against one of the petitioners, namely, Smt. Sonali Jain as she was shown as an absconder by the investigating officer and the prayer was made against her for issuance of warrant of arrest.
8. Subsequently, the aforesaid petitioner surrendered before the concerned Court and was released on bail.
9. It has been alleged further by the petitioners that being aggrieved by and dissatisfied with the order dated 10-12-2002 passed by the Learned Magistrate, Howrah, Sadar, regarding taking of cognizance of the offence on the basis of the charge sheets, as indicated above, and for quashing of the aforesaid charge-sheet, they have filed the instant application praying for quashing of the charge sheet and/or for setting aside of the order dated 10-12-2002, whereby and whereunder cognizance was taken by the Learned Magistrate, alleging that this is a clear case of glaring example of non application of the judicial mind as in the instant case, mens rea being an important ingredient in connection with the commission of offence, it will be clear that combined reading of the F.I.R. and the charge sheet without any addition thereto or subtraction therefrom still show in unmistakable term that even there is a fact of disposal of hypothecated goods, but there is no mens rea either to caused any wrongful gain to the sellers or wrongful loss to the Bank with whom goods were hypothecated and it is more so when ingredients of the some other offences namely Sections 421 and 422 of I.P.C. are thoroughly conspicuous by their absence on the allegations levelled in the instant case.
10. In consequence thereof, they have come up with the aforesaid prayers.
11. This prayer was, however, opposed by the opposite party/de facto complainant and the State alleging that the allegation levelled in the petition of complaint and subsequently incorporated in the charge-sheet will certainly show that prima facie case as alleged against the petitioners has been established and at the stage of quashing of F.I.R. or the charge-sheet, as the case may be, the Court need not embark upon any sort of enquiry and the meticulous analysis of the case before the trial Court to find out whether the case would end in conviction or acquittal is not necessary and the Court will simply quash the proceeding if it appears to the Court on the available materials that no prima facie case has been made out and such power should be exercised by the Court either to prevent the abuse of the process of the Court or to meet the ends of justice. But, as per the settled position of law, the power of the Court in this regard should be exercised with utmost circumspection and that should be used very sparingly only in the rarest of the rare cases. But, in doing so, the Court should not embark upon any sort of enquiry with a view to find out the truthfulness or otherwise of the allegation.
12. I have heard the submissions by the learned advocates appearing for the parties at length.
13. Drawing my attention to the clause 2 of the Agreement itself, it has been contended on behalf of the petitioners that Clause 2 of the Agreement of Hypothecation of goods authorises the petitioners to sell those goods in the ordinary course of their business and drawing my attention to the paragraphs 6 to 9 of their written statement filed before the Debts Recovery Tribunal it was contended further that to meet the depression and recession in the ship breaking business, they gave a proposal of restructing of their account with the Bank itself, with a proposal to convert the said outstanding amount to working capital term loan account with a further request for sanctioning of Letter of Credit-cum-Cash Credit facility for Rs. 800 lacs against further collateral security of immovable property and pledge of LIC Policy and in consequence thereof, they submitted three years balance sheet etc., but the concerned Bank neither considered restructuring of the account nor even taken any steps to realize its security being the book debts to the customer of the petitioners and on the other hand with a mala fide intention they have filed the criminal complaint against the present petitioners.
14. In this connection, it has been contended on behalf of the petitioners that although in the charge sheet it has been mentioned that a prima facie case has been well established against the accused petitioners for cheating Govt. money from the Bank after committing criminal conspiracy among others which caused losses to the national exchequer, yet, there is no mens rea whatsoever as will be reflected from the materials available on record and according to the petitioners the failure to collect the money from the purchasers being beyond their control they could not be held responsible alone for not refunding the money of the Bank and the non-performance of the Clauses of Agreement with regard to the payment is certainly protected by doctrine "impossibility of performance" for which no criminal offence could be maintained against them, although their civil liability will remain.
In the premises as aforesaid, they have come up with the prayer for quashing and it has been submitted on their behalf of that the charge sheet, and the order of taking cognizance are unsustainable in law and as such it should be set aside.
From the side of the de facto complainant as well as the State/Opposite Party, it has been contended that for the purpose of quashing of the complaint/F.I.R. and the charge-sheet, as the case may be, it is now quite well settled principles of law that Court will not embark upon any sort of enquiry while disposing of the application, seeking quashing of the F.I.R./Complaint and/or charge-sheet and at that stage, the Court will have to act on the prima facie materials as available in the complaint/F.I.R. or the in the Charge-sheet and if upon looking into those materials as a whole-without adding anything or subtracting anything therefrom, if it appears to the Court that no case has been made out, the Court should come forward to quash the same with a view to prevent the abuse of the process of the Court and/or to meet the ends of justice. But it has been contended on their behalf that the way the petitioners wanted to analyse the materials available before this Court, precisely the query whether they are entitled to sell in ordinary course of their business, whether or not for such matters permission was obtained and/or whether or not provision was there for sale or not or whether sales were sales in the ordinary course of business cannot be gone into at this stage of the case and para 9 of the complaint specifically demolishes the case of the petitioners wherein it has been clearly disclosed that the bank officer visited the premises of the petitioners but did not find stocks or goods or scraps or vessels and/or on further enquiry found that the book debts were collected but the same were not deposited into the Bank and such statements are sufficient enough to conclude that there were sufficient allegations against the present petitioners to proceed with the criminal case.
15. Drawing my attention to the Paragraph 7 of their written statement filed before the Debts Recovery Tribunal, it was contended on behalf of the opposite parties that even in their written statement before the Debts Recovery Tribunal, they did not admit their liability and the said fact taken together with the allegations in the petition of complaint and as reflected in the charge-sheet would clearly suggest that the petitioners had mens rea in the connected matter.
16. In the premises, as above, it was contended by them that the quashing, as prayed for by the petitioners cannot at all be allowed.
17. I have given my anxious consideration with regard to the submissions made by the parties.
18. It has now become more than settled that in quashing the complaint or the F.I.R. or the charge sheet, the Court has to exercise its power under Section 482 of Cr.P.C. with extreme circumspection.
19. In this connection, I may profitably use the dictum of the Apex Court in a decision in 1992 Supp (1) SCC 335 : (1992 Cri LJ 527) in the case of State of Haryana v. Bhajan Lal wherein it was held by the Apex Court that
"We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases, that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."
20. Again, in a decision (From Karnataka)
in the case of State of Karnataka v. M. Devendrappa , it was clearly laid down by the Apex Court that "Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of process of Court, and (iii) to otherwise secure the ends of justice.
It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of High Courts. All Courts, whether Civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quande lex aliquid aliqui concedit, concedere videtur in sine qua ipsa, esse non potest" (when the law gives a person anything it gives him without which it cannot exist). While exercising powers under the section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debite justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers. Court would be justified to quash any proceeding if it finds initiation/continuance of it amounts to abuse of process of Court or quashing of these proceedings would otherwise were the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complaint has alleged and whether any offence is made out even if the allegations are accepted in toto."
21. Again, it was laid by the Apex Court in the aforesaid judgment that "As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage (See the Janta Dal etc. v. H.S. Chowdhary , Dr. Raghubir Saran v. State of Bihar
. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious. In that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding".
22. Examining the rival contentions of the parties in the light of the aforesaid principles of law enunciated by the Apex Court, I am of the clear opinion that in the instant case, the prayer for quashing of the charge-sheet by the petitioners specially by the petitioner Nos. 2 to 7 cannot at all be allowed on the existing materials reflected from the petition of complaint and further reinforced by the investigation, conducted in this case by the prosecuting agency.
23. Accordingly, on the available materials, I hold with utmost assertion that the quashing as prayed for by them of the charge-sheet and/or setting aside of the order dated 10-12-2002 passed by the S.D.J.M., Howrah, Sadar in taking cognizance of the offence on the basis of the charge-sheet Vide Charge-sheet No. 198, dated 27-11-2002 as also the Charge-sheet No. 199, dated 27-11-2002 cannot at all be allowed. Accordingly, their prayer should be rejected.
24. But, the case of the petitioner No. 1 in these cases stand on a quite different footing.
25. True it is that in many recent penal statutes, Companies and Corporations are deemed to be offenders on the strength of the acts committed by the persons responsible for the management of the affairs of such Companies or Corporations.
26. But, in the Penal Code, there is, however, no provision which makes a Company or an Association of persons liable for prosecution for the offences of which, mens rea, is one of the essential ingredients. It is, therefore, apparent that if a statute defining offences, makes the mens rea or particular state of mind to be essential ingredients of such offence, a Company or an Association of persons cannot be prosecuted for such offences though its officers or directors responsible for the management of the affairs of such Company may be liable of such prosecution.
27. In that view of the fact, I hold with certainty that Company or a Corporate Body cannot be prosecuted for an offence of which mens rea is an essential ingredient.
28. Here in the instant case the charge-sheet has been submitted against the petitioner No. 1 and petitioner Nos. 2 to 7 for I.P.C. offences under Sections 420/421/ 422/403/406 and 120B of I.P.C. Needless to say, for such offences, mens rea is an essential ingredient.
29. That being the position, the present case cannot be proceeded with against the petitioner No. 1, a company or a partnership firm and, therefore, I hold with certainty that the quashing of the charge-sheet insofar as it relates to petitioner No. 1 in both these cases should be allowed and the order of taking cognizance insofar as it relates to petitioner No. 1 should also be set aside.
30. In consequence thereof, the prayer for quashing of the F.I.R. as also the prayer for setting aside the order dated 10-12-2002 passed by the Ld. S.D.J.M., Howrah, Sadar, insofar as it relates to the present petitioner Nos. 2 to 7 are, hereby, rejected. But, the charge-sheet No. 198 of 2003, dated 27-11-2002 under Sections 420/403/406/421/ 422/120B of the Indian Penal Code and the Charge-sheet No. 199, dated 27-11-2002 under Sections 420/421/422/403/406/ 120B of I.P.C. insofar as it relates to petitioner No. 1 are hereby quashed and the order dated 10-12-2002 passed by the Ld. S.D.J.M., Howrah, Sadar, insofar as it relates to petitioner No. 1 in both the cases are, hereby, set aside.
31. In the result, the revisional application succeeds in part.
32. Interim orders, if there be any, stand vacated.
33. The learned trial Court is directed to proceed with this trial with utmost expedition against the petitioner Nos. 2 to 7.
34. This order shall govern both the applications being C.R.R. No. 303 of 2003 and C.R.R. No. 304 of 2003.
35. Urgent xerox certified copy, if applied for, be given to the parties with utmost expedition.