1. The applicant-accused no.25 has preferred this application under Section 482 of the Code of Criminal Procedure, 1973 ("CrPC" for brevity) for quashing and setting aside the complaint, being C.R. No. I-6 of 2011 registered with Surat City DCB Police Station, Surat for the offence punishable under Section 379 and 114 of the Indian Penal Code, 1860 and Sections 51, 53, 64 and 65 of the Copyright Act, 1957 and all other consequential proceedings arising therefrom.
2. Brief facts of the case are that the respondent no.2-complainant is working in the capacity of Vice President (Internal Affairs) with Star Den India Private Limited, Mumbai, which is a distributor/content aggregator of channels mainly related to Star and other channels too, and in turn sub-lets the broadcasting rights to other media in the Surat City. That, the applicant and 25 of its operators named in the FIR have allegedly committed theft of the signal and broadcasted the channel without there being any authority to do so. It is alleged that the agreement between complainant and the applicant is breached unauthorisedly, in connivance with the other coaccused, by transmitting signals to co-accused and by giving them broadcasting rights dehors the agreement, and therefore, impugned complaint has been filed against the accused persons.
3. Heard learned advocate Mr. Bhadrish S. Raju for S.V. Raju Associates, learned advocate appearing on behalf of the applicant, learned advocate Mr. Abhishek M. Mehta appearing on behalf of the respondent no.2 and learned APP Mr. KP Raval appearing on behalf of the respondent no.1-State.
4. Learned advocate Mr. Bhadrish S. Raju has submitted that the impugned complaint is a cog in the elaborate conspiracy concocted by Gujarat Telelink Private Limited (GTPL), a rival of the applicant, with whom, Den Networks Limited (Joint venture partner in Star Den) is associated to develop their business in Surat and they have falsely implicated the applicant. That, the present FIR is nothing, but a malafidely instituted proceeding with an ulterior motive to wreak havoc on the applicant and is nothing less than a gross abuse of the process of law. That, Section 379 IPC is the only offence, which is cognisable and has been invoked only with a view to see that a cognisable offence is registered against the applicant. In so far as other offence, as alleged under the provisions of Copyright Act, 1957 are concerned, the same are non-cognisable offence according to the schedule attached to the Code of Criminal Procedure. That, a bare reading of section 378 IPC would make it clear that it is only in the case of theft of movable property, offence of theft would be made out. But, in the present case, there is no theft of movable property involved. The so-called theft of signal is not theft of a movable property. That, the controverted allegations made in the FIR do not disclose commission of any offence and such allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach to a conclusion that there is sufficient ground for proceeding against the accused for the offences alleged in the FIR. That, the entire FIR is, independent of it being instituted malafidely, a bogus one and a cunning attempt to cloak a pure civil dispute with criminal colours.
5. It is further argued by learned advocate Mr. Bhadrish S. Raju appearing on behalf of the applicant that nowhere in the FIR, it is alleged that any other decoders and/or viewing cards were being used, or that the signals were illegally obtained by the present applicant. He has placed certain invoices showing payment received by the respondent no.2 of the services, which have been made till June 2011. It is further argued that payments have been made on the basis of all subscribers, who have been using the services, irrespective of the operators. That, the agreements were signed and for which payments have been made and the number of subscribers mentioned in the agreement tallies with the payments made. That, there was no question of increase in number of subscribers and not making payment for subscribers. That, FIR does not make out any cognisable offence. That, the dispute between the parties is of civil nature, which is given criminal colour just with a view to pressurize the applicant and is an abuse of process of law. That, the list of operators/subscribers is a bona fide increase by the applicant and same was communicated to the respondent no.2, however, false complaint was lodged by the respondent no.2. That, agreements were signed by the respondent no.2 past the dispute in March, 2011 for the years 2009 and 2010, which itself shows that the accurate version of the applicant. That, the dispute is pending for adjudication before the Telecom Disputes Settlement and Appellate Tribunal (in short "TDSAT") and it is stated that the respondent no.2 will not disconnect services of the applicant. That, as per the amended Telecommunication (Broadcasting and Cable Services) Interconnection Regulation, 2006, the applicant is entitled to use services for three months, even after expiry of the Agreement. That, the respondent no.2 has malafidely instituted the present FIR only with a view to obstruct the business of the applicant. That, maximum punishment under Section 65 of the Copyright Act, 1957 is 2 years imprisonment, and therefore, the same would be a cognisable offences as per the schedule of the Code of the Criminal Procedure. That, with a malafide intention and with ulterior motive to wreak vengeance, this complaint was filed by the respondent no.2. That, the impugned FIR is nothing, but abuse to process of law, and therefore, it was requested by learned advocate Mr. Bhadrish Raju appearing on behalf of the applicant to quash and set aside the impugned FIR, being C.R. No. I-6 of 2011 registered with Surat City DCB Police Station, Surat. In support of his arguments, he has relied on the following authorities and notification;
(i) Avtar Singh v. State of Punjab, reported in AIR 1965 SC 666.
(ii) Satya Narain Prasad v. Bhagwan Ramdas, reported 1995 Supp.(4) SCC 629.
(iii) State of W.B. & Ors. v. Swapan Kumar Guha & Ors., reported in (1982) 1 SCC 561.
(iv) Avinash Bhosale v. Union of India, reported in (2007) 14 SCC 325.
(v) ESPN Star Sports v. Global Broadcast News Ltd. & Anr., delivered in RFA (OS) No. 25/2008 by Delhi High Court.
(vi) The Copyright (Amendment) Bill, 2010 (As introduced in the Rajya Sabha)
(v) TRAI-Notification No. 6-4/2006-B&CS dated 4th September, 2006.
6. On the other hand, learned advocate Mr. Abhishek Mehta appearing on behalf of the respondent no.2 has strongly and vehementally opposed the submissions made by learned advocate for the applicant and submitted that the impugned complaint is filed against 25 cable operators for indulging in unlawful acts of unauthorized distribution of signals by illegally exhibiting, screening, playing unauthorized programs, intercepting and/or interfering with the television signal of the channel/s in violation of the Copyright Act, 1957 and Cable Television Networks (regulations) Act, 1995, as amended from time to time. It was further argued that the accused in impugned complaint were indulged in theft of signal and illegal and unauthorized broadcasting of the Channels of Start Den and subsequently it was found that the same was at the behest of the present applicant/accused no.25, who was stealing/committing theft of signals of the Channels and unauthorisedly and illegally transmitting the same to the other accused, despite having no authority to do so, and therefore, requesting them to immediately stop transmitting channels either directly or indirectly or through franchises operators. The said notices were issued from December 2010 onwards to January 2011 repeatedly requested them to stop indulging in cable piracy. However, they continued to blatantly indulge in rampant cable piracy and applicant still persisted and was found unauthorisedly distributing/transmitting signals or programs to the accused nos. 1 to 24, who were not its cable operators and were beyond the authorised area of distribution of the applicant-accused no.25, which would amount to piracy in terms of Sections 51, 53, 64 and 65 and is an act punishable under section 63 of the Copyright act, 1957 as well as Section 379 and 114 of the Indian Penal Code. It is further argued that transmitting of signal falls under the definition of movable property and consequently, sections 378 and 379 of the Indian Penal Code covers theft of signal. It is further submitted that penal provisions appear in Section 63 of the Copyright Act and the offences punishable with imprisonment for a term which shall not be less than six months, but which may extend to three years and fine. That, the Criminal Procedure Code provides that if the offence under other laws is punishable with imprisonment for three years and upwards but not more than seven years, the same would be cognisable and non-bailable. It is further argued that Copyright Act provides for both Civil and Criminal remedies in case of infringement and the issues which are pending between the parties before the TDSAT for offence under the Copyright Act as well as under the Indian Penal Code is clearly made out against the present applicant and other cable operators, for which, investigation is required to be conducted by Investigating Officer. That, a letter was addressed by the respondent no.2 on 14th January, 2011 to the Commissioner of Police, Surat City pointing out the aforesaid fact of rampant cable piracy, being indulged by the cable operators; including the present applicant, and a request was made for investigating into the matter and taking necessary steps to register a complaint against the cable operators found indulging in cable piracy by registering offence under the provisions of Copyright Act and Indian Penal code. That, distribution of signals without authorization of the Channel owner or distributor is illegal and unauthorized and mere presence of a separate civil dispute between the parties is irrelevant. That, no case is made out by the applicant showing that the impugned complaint filed by respondent no.2 is with a malafide intention, or ulterior motive to wreak vengeance. That, the complaint itself clearly shows that the same pertains to the illegal and unauthorized criminal actions of the applicant in indulging in theft of signal and violation of the Copyright Act, and therefore, it was requested by learned advocate Mr. Abhishek Mehta appearing on behalf of the respondent no.2 to dismiss the present application. In support of his arguments, Mr. Mehta has relied on the following judgments;
(1) Jitendra Prasad Singh v. State of Assam, reported in 2003(26) PTC 486 (Gau.)
(2) Sureshkumar s/o:Kumaran v. Sub Inspector of Police, reported in 2007 RD-KL-8954 of 29.05.07.
(3) Abdul Sathar v. Nodal Officer Anti :Piracy Cell (Crime Branch), reported in 2007(35) PTC 780 (Kerala)
(4) Anil Kumar Gupta v. State of Bihar, reported in 2002(1) PLJR 303
(5) Rakesh Agarwal v. State of U.P., decided vide order dated 19.03.2015 in an application No. 482 No. 6551 of 2015.
(6) State of Andhra Pradesh v. Nagori Venkataramana, reported in 1996(6)SCC 409.
(7) Insight into the Nature of offence of Copyright infringement-Article
(8) Extract from Halsbury's Laws of India-Vol. 20(1) 185-407.
(9) Jabalpur Cable Network Pvt. Ltd. v. ESPN Software India Pvt. Ltd. & Ors, reported in AIR 1999 MP 271- Para 19.
(10) Aasia Industrial Technologies Limited v. Ambience Space Sellers Ltd., reported in 1998 PTC (19)(DB)- Paras 23 & 24.
(11) Abdulgafar A. Nadiadwala v. Assistant Commissioner of Income Tax & Ors., reported in (2004) 188 CTR (Bom) 232-Paras 44, 45, 46, 47 & 49.
(12) Arun Bhandari v. State of Uttar Pradesh & Ors., reported in (2013) 2 SCC 801.
(13) N. Soundaram v. P.K. Poundraj & Anr., reported in (2014) 10 SCC 616.
(14) Teeja Devi alias Triza Devi v. State of Rajasthan & Ors., reported in (2014) 15 SCC 221
(15) Sesami Chemicals Private Limited v. State of Meghalaya & Ors., reported in (2014) 16 SCC 711
(16) Taramani Parakh v. State of Madhya Pradesh & Ors., reported in (2015) 11 SCC 260
(17) Ismail Valibhai Momin v. State of Gujarat delivered in Criminal Misc. Application No. 6338 of 2009 on 16.12.2016.
(18) B. Rajendra Subudhi & Anr. v. Brundaban Sahu, reported in 60 (1985) CLT 551.
(19) Radha Kishana Sinha & Anr. v. The State of Bihar & Anr., reported in 1979 CrLJ 757.
7. Learned APP Mr. KP Raval appearing on behalf of the respondent no.1 has supported the arguments advanced by learned advocate appearing on behalf of the respondent no.2 and stated that considering the seriousness of the offence, a thorough investigation into the matter is required. From the averments made in the complaint, prima facie case is made out against the present applicant. That, the applicant has approached this Court immediately after registration of the complaint and this court while issuing rule was pleased to grant interim relief in favour of the applicant, and therefore, it was not possible for the Investigating Agency to investigate into the offence. According to him, without making investigation, no true and correct facts would be found, and therefore, a thorough investigation is required to be made in the present case. Hence, no powers under Section 482 CrPC may be exercised by this Court, at this stage. It was therefore requested by him to dismiss the present application.
8. Having considered the facts of the case, arguments made by learned advocates appearing on behalf of the respective parties, documents produced on the record by both the sides, it transpires from the facts of the case that present applicant is the original accused no.25 in the impugned complaint lodged by the respondent no.2 for the offence punishable under Sections 379, 114 of the Indian Penal Code read with section 51, 53, 64 and 65 of the Copyright Act, 1957. As per the allegations made in the complaint by the respondent no.2, all the accused; including the present applicant were indulged in theft of signal and illegal by and unauthorisedly broadcasting of the Channels of Star Den India Private Limited, and subsequently, it was found that the same was at the behest of the present applicant-accused no.25, who was stealing/committing the theft of signals of the channels and thereby unauthorisedly and illegally transmitting the same to the other accused persons named in the impugned complaint. It appears from the record that before lodging of the complaint by the respondent no.2, notices were issued to all the accused persons; including the present applicant to stop transmitting channels either directly or indirectly, or through franchises/link operators during the period from December 2010 onwards to January 2011. It also appears that repeatedly requests were made to stop indulging in cable piracy by the applicant and the other co-accused. However, the cable operators, like the present applicant, continued to blatantly indulge in rampant cable piracy and the applicant was found unauthorisedly distributing/transmitting of signals to the accused nos. 1 to 24 who were not its cable operators and were beyond the unauthorized area of distribution of the applicant-accused no.25.
9. The Copyright (Amended) Act, 1994 Bill provides, among other things, for the following amendments to the Act, namely;
(i) to increase the punishment provided for the infringement of the copyright, namely imprisonment of three years, with a minimum punishment of imprisonment of six months, and a fine up to Rs. 2 lakhs, with a minimum of Rs. 50,000;
(ii) to provide for enhanced punishment sin the case of second and subsequent convictions;
(iii) to provide for the declaration of the offence of infringement of copyright as an economic offence so that the period of limitation provided for in the Code of Criminal Procedure, 1973, for offences will not be applicable to this offence;
(iv) to specifically make the provisions of the Act applicable to video films and computer programmes;
(v) to require the producers of records and video films to display certain information in the record, video films and containers thereof.
10. Amended bill, which was introduced was in reference to Section 63 of the Copyright Act pertaining to offence of infringement of copyright or other rights conferred by this Act, 1984 by way of Copyright (Amendment) Act, 1994. In the Act, originally the words used "shall be punishable with imprisonment which may extend to one year, or with fine, or with both" are substituted with the words "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 Rs. 25,000/-, but which may extend to Rs. 2 lacs." For the sake of convenience, Section 63 of the Copyright Act is reproduced herein below;
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, 1[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 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.
11. Prior to lodgment of the complaint by the respondent no.2, from December 2010 onwards to January 2011, it appears that some of the cable operators; including the present applicant, were issued several notices requesting them to immediately stop indulging in cable piracy. However, the cable operators continued to indulge in cable piracy. That, two different letters were also written by the respondent no.2 dated 14th January, 2011 and 18th January, 2011 to the Commissioner of Police, Surat City, Surat reiterating the aforesaid facts of cable piracy being indulged in by the cable operators; including the present applicant, requesting for investigating into the matter and taking necessary steps to register relevant cases against the cable operators found indulging in cable piracy by registering appropriate complaints under the provisions of the Copyright Act and the Indian Penal Code. For the sake of convenience, the relevant provisions are reproduced herein below;
Section 51: When copyright infringed.-
Copyright in a work shall be deemed to be infringed-
(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or
(b) when any person-
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as to affect pre-judicially the owner of the copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports [***] into India,
Any infringing copies of the work:
Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work, for the private and domestic use of the importer.
Explanation.-For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an "infringing copy".
Section-53: Importation of infringing copies-
(1) The Registrar of Copyrights, on application by the owner of the copyright in any work or by his duly authorised agent and on payment of the prescribed fee, may, after making such inquiry as he deems fit, order that copies made out of India of the work which if made in India would infringe copyright shall not be imported.
(2) Subject to any rules made under this Act, the Registrar of Copyrights or any person authorised by him in this behalf may enter any ship, dock or premises where any such copies as are referred to in sub-section (1) may be found and may examine such copies.
(3) All copies to which any order made under subsection (1) applies shall be deemed to be goods of which the import had been prohibited or restricted 1[under section 11 of the Customs Act, 1962 (51 of 1962),] and all the provisions of the Act shall have effect accordingly: Provided that all such copies confiscated under the provisions of the said Act shall not vest in the Government but shall be delivered to the owner of the copyright in the work.
Section-64: Power of police to seize infringing copies-
(1) Any police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offence under section 63 in respect of the infringement of copyright in any work has been, is being, or is likely to be, committed, seize without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable, be produced before a Magistrate;
(2) Any person having an interest in any copies of a work , or plates seized under sub-section (1) may, within fifteen days of such seizure, make an application to the magistrate for such copies or plates being restored to him and the Magistrate, after hearing the applicant and the complainant and making such further inquiry as may be necessary, shall make such order on the application as he may deem fit.
Section-65: Possession of plates for the 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.
12. For implementing the Copyright Act or other rights conferred by this Act, the same is provided under Section 63 of the Act as referred above. Under the Indian Penal Code, 1860 Section 379 provides punishment for theft saying that, "whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both. And, whenever any person who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punished in consequence of the abetment is committed, he shall be deemed to have committed such act or offence under Section 114 of the Indian Penal code.
13. It would be relevant to refer to Section 378 of the Indian Penal Code which refers to the definition of 'theft'.
"Section-378. Theft.- Whoever, intending to take dishonestly any move able property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Explanation 1.- A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
Explanation 2.- A moving effected by the same act which affects the severance may be a theft.
Explanation 3.- A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.
Explanation 4.- A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.-The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied."
14. Infringement of Section 63 of the Copyright Act is a punishable offence with imprisonment for a period of 3 years and in terms of the provisions of the Code of Criminal Procedure, the same can be considered to be cognisable and non bailable.
15. The issue of pendency of the proceedings before the TDSAT filed by the applicant in the month of April, 2011 has no bearing on the maintainability of the impugned complaint, since the issue of piracy by the Cable Operators; including the present applicant, was taken up right from December 2010. That, distribution of signals without authorization of the Channel owner or distributor would be illegal and unauthorized act. Section 63 of the Copyright Act is a cognisable offence and is punishable with imprisonment upto three years and fine and Section 379 of the Indian Penal Code is also a cognisable offence and is applicable to the facts of the case, since theft of signal would squarely cover under Section 379 of IPC pertaining to theft of moveable property, and therefore, the submissions and contentions raised by the learned advocate Mr. Bhadrish Raju appearing on behalf of the applicant are not worthy of any merit and deserves to be rejected.
16. The expression 'goods' is defined under Section 2(7) of the Sale of Goods Act is as under;
Section-2(7): "goods" means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.
17. As per definition of goods, it must be movable property and any kind of property which is moveable would fall within definition of goods. As described above, signal would fall under the definition of "movable property" within the meaning of Sale of Goods act.
18. Now, let us discuss the law on the subject as enunciated by various decisions of the Apex Court, relied upon by learned advocate appearing on behalf of the applicant.
(i) In case of Avtar singh v. State of Punjab, reported in AIR 1965 SC 666, it is held by the Hon'ble Supreme Court that;
"Dishonest abstraction of electricity mentioned in Section 39 of the Act cannot be an offence under the Indian Penal Code for under it alone it is not an offence; the dishonest abstraction is by that section made a theft within the meaning of the Code, that is, an offence of the variety described in the Code as theft. As the offence is created by raising a fiction, the section which raises the fiction, namely Section 39 must be said to create the offence. Since the abstraction is to be deemed to be an offence under the Code, the fiction must be followed to the end and the offence so created would entail the punishment mentioned in the Code for that offence. The punishment is not under the Code itself for under it abstraction of energy is not an offence at all."
(ii) In case of Satya Narain Prasad v. Bhagwan Ramdas alias Bhagwan Sah & Ors., reported in 1995 Suppl (4) SCC 629, which was a case under Section 39/44 of the Indian Electricity Act read with Section 379 IPC and dishonest abstraction of electricity was alleged to have been committed; it was held by the Hon'ble Supreme Court that it is deemed to be theft within the meaning of the Penal Code and must be deemed for all purposes a theft; including for the purpose of imposing punishment. Section 39 must be read along with provision of IPC dealing with theft. On facts, in view of nature of the offence and long delay prosecution cannot be allowed to go on. As the offence was alleged to have been committed in the year 1981, it was not deemed fit and necessary to allow the prosecution to go on by the Hon'ble Supreme Court. It appears that in the Copyright (Amendment) Bill, 2010, in Section 39A of the Principal Act, the following Sections were substituted namely;
"Section-39A. (1) Sections 18, 19, 30, 30A, 33, 33A, 53, 55, 58, 63, 64, 65, 65A, 65B and 66 shall, with necessary adaptations and modifications, apply in relation to the broadcast reproduction right in any broadcast and the performer's right in any performance as they apply in relation to copyright in a work:
Provided that where copyright or performer's right subsists in respect of any work or performance that has been broadcast, on licence to reproduce such broadcast, shall take without the consent of the owner of right or performer, as the case may be, or both of them:
Provided further that the broadcast reproduction right or performer's right shall not subsist in any broadcast or performance if that broadcast or performance is an infringement of the copyright in any work;
(2) The broadcast reproduction right or the performer's right shall not affect the separate copyright in respect of which, the broadcast or the performance, as the case may be, is made"
(iii) In Notification dated 4th September, 2006 of Telecom Regulatory Authority of India, New Delhi, at para 10, under the head of Variation of subscriber base during validity of agreement;
Between Multi System Operator and Cable Operator
10.1 In non-addressable systems, the subscriber base agreed upon by the parties at the time of execution of the interconnection agreement between a multi system operator and a cable operator shall remain fixed during the course of the agreement except in exceptional circumstances that warrant an increase or decrease in the subscriber base. In such an eventuality, it is for the service provider seeking a change in the subscriber base to provide reasons and accompanying evidence including local survey for the proposed change.
Between Multi System Operator and Broadcaster
10.2 In non-addressable systems, the subscriber base agreed upon by the parties at the time of execution of the interconnection agreement between a multi system operator and a broadcaster shall remain fixed during the course of the agreement except in exceptional circumstances that warrant an increase or decrease in the subscriber base. In such an eventuality, it is for the service provider seeking a change in the subscriber base to provide reasons and accompanying evidence including local survey for the proposed change.
Provided that this sub-clause shall not apply to changes in the subscriber base of a multi system operator on account of any cable operator joining or leaving the multi system operator. Provided further that any change in the subscriber base of a multi system operator, which is the basis of payment to a broadcaster, on account of any cable operator joining or leaving the network of the multi system operator shall be equal to the subscriber base of the cable operator, joining or leaving the network."
(iv) In RFA (OS) No. 25/2008 before the High Court of Delhi at New Delhi, it was observed in para 16 of the judgment as under;
"Para-16: it is to be seen that the genesis of the broadcasting reproduction right lies in the Statement of objects and reasons of the original 1957 Act which clearly stated as follows-
"(11) Certain rights akin to copyright are conferred on Broadcasting authorities in respect of programmes broadcast by them" Thus, the Legislature itself by terming broadcast rights as those akin to copyright clearly brought out the distinction between the nature of two rights in Indian Copyright Act, 1957. This was a clear manifestation of the legislative intent to treat copyright and broadcasting reproduction rights as distinct and separate rights. Further, it is to be seen that the Amendment Act of 1994 while amending the Act not only extended such rights to all Broadcasting Organisations, but also clearly crystallized the nature of such rights. Hence, in our view, the contention of the respondent that the broadcast reproduction right as a special right, does not stand dehors copyright and that the two rights are not mutually exclusive, cannot be sustained as it is clearly seen from the legislative intent that the two rights though akin are nevertheless separate and distinct" In para 32, it is further observed that as we have found that the broadcast reproduction right in respect of telecast of live event like a Cricket match are separate and distinct right as from the copyright and as such Section 61 is not applicable to broadcast reproduction right. Even assuming that a copyright includes broadcast reproduction right and Section 61 applied, we are of the view that the eventual telecast by the appellant being different and distinct from the telecast of the host broadcaster, the independent copyright owner of the eventual product is the appellant itself. In light of the above observations, it is not incumbent upon us to rely on the above said agreement or go into the effect of suppression of its portions. As held by the High Court of Delhi, Section 61 of the Act having been specifically left out by the Legislature by virtue of Section 39-A of the Act specifying the applicable provisions of Chapter VIII of the Act to broadcast reproduction rights, clearly rules out the applicability of Section 61 of the Act and a view of the learned Single Judge does not commend itself for approval by the Hon'ble Division Bench."
19. Now, let us discuss the law on the subject as enunciated by various decisions, relied upon by learned advocate appearing on behalf of the respondent no.2;
(i) In case of Jitendra Prasad Singh v. State of Assam, reported in 2003 (26) PTC 486 (Gau.), wherein offence under Section 63 of the Copyright Act, 1957 was made out is cognisable and nonbailable offence and the provisions of Section 438 CrPC was held applied as an offence punishable for imprisonment in term, which may extend to three years.
(ii) In case of Sureshkumar s/o: Kumaran v. The Sub Inspector of Police, reported in (2007) RD-KL 8954 dated 29th May, 2007, it was held in para 3 as under:
Para-3: A plain reading of the stipulations in the Schedule shows that if the offence is punishable with imprisonment for 3 years and upwards, but not more than 7 years, it must be reckoned as cognisable. Section 63, according to me, is clearly punishable with imprisonment for 3 years and in these circumstances the offence has to be held to be cognisable.
(iii) In case of Abdul Sathar v. Nodal officer, Anti Piracy Cell, Kerala Crime Branch office & Anr., reported in 2007(35) PTC 780 (Kerala), wherein the offence under Section 63 of the Copyright Act, 1957 was found cognisable. It was further held that Act as amended does not anywhere specifically refer to cognizability for the purpose of investigation. Offences punishable with imprisonment for 3 years upto 7 years, both inclusive, will fall under the second category. It was further held that the offence under Section 63 of the Copyright Act is cognisable.
(iv) In case of Anil Kumar Gupta v. State of Bihar & ors., reported in 2002 (1) PLJR 703 wherein, which was a case of cancellation of bail, the offence was committed punishable under Section 467, 463, 471, 420, 120B of the Indian Penal Code, 1860 (I.P.C.) and Section 63 of the Copyright Act. It was held that there was nothing on record to show that after release on bail, opposite party nos. 2 to 9 had misused privilege of bail by their any action, and there was any possibility of their absconding. Therefore, it was found that no cogent and overwhelming circumstances requiring cancellation of bail granted to opposite party nos. 2 to 9 by Court below and application was ultimately dismissed.
(v) In case of State of A.P. v. Nagoti Venkataramana, reported in (1996) 6 SCC 409, Hon'ble Supreme Court observed in para 2 and 3 as under;
Para-2. Mainly there are three types of piracy, namely, piracy of the printed word, piracy of sound recordings and piracy of cinematograph films. The object of the pirate in all such cases is to make quick money and avoid payment of legitimate taxes and royalties. In respect of books, it is estimated that four hundred to five hundred titles are pirated every year in India and on each of the pirated titles, the loses to the Government in the form of tax evasion amounts approximately to Rs. 11,000/- Apart from books, recorded music and video cassettes of films TV programs are reproduced, distributed and sold on a massive scale in many parts of the world without any remuneration to the authors, artistes, publishers and producers concerned. The emergence of new techniques of recordings, fixation and reproduction of audio programs, combined with the advent of video technology have greatly helped the pirates. It is estimated that losses to the film producers and other owners of copyright amount to several crores of rupees. The loss to Government in terms of tax evasion also amounts to crores of rupees. In addition because of the recent video boom in the country, there are reports that uncertified video films are being exhibited on a large scale. A large number of video parlors have also sprung up all over the country and they exhibit such films recorded on video tapes by charging admission fees from their clients. In view of these circumstances, it is proposed to amend the Copyright Act , 1957, suitably to combat affectively the piracy that is prevalent in the
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country. Para-3: The Bill provides, among other things, for the following amendments to the Act, namely:- (i) to increase the punishment provided for the infringement of the copyright, namely, imprisonment of three years, with a minimum punishment of imprisonment of six months, and fine upto Rs. 2 lakhs, with a minimum of Rs. 50,000/- (ii) to provide enhanced punishments in the case of second and subsequent convictions ; (iii) to provide for the declaration of the offence of infringement of copyright as an economic offence so that the period of limitation provided for in the Code of Criminal Procedure, 1973 for offence will not applicable to this offence.; (iv) to specifically make the provisions of the Act applicable to video films and computer programs; (v) to require the producers of records and video films to display certain information in the records, video films and containers thereof." (vi) In case of Jabalpur Cable Network Pvt. Limited v. ESPN Software India Pvt. Ltd & Ors, reported in AIR 1999 MP 271, it was held that the term "movable property" when considered with reference to "goods" as defined for the purposes of sales tax cannot be taken in a narrow sense and merely because electric energy is not tangible or cannot be moved or touched like, for instance, a piece of wood or a book, it cannot cease to be movable property when it has all the attributes of such property. (vii) In case of Aasia Industrial Technologies Limited v. Ambience Space Sellers Limited, reported in 1998 PTC (18) (Bombay), wherein para 23 and 24 while interpreting Section 2(7) in the Sale of Goods Act, it was defined that "goods" would mean any movable property other than an actionable claim and money. The term "movable property" has been construed by the Supreme Court in respect of electric energy. The judgment reported in AIR 1970 SC 732 was also referred, whether 'electric energy' is 'goods' for the purpose of Sales Tax. It was further held that under the definition of 'goods; as given in the Sales of Goods Act, 'goods' must be property and must be movable. Any kind of property which is movable would fall within the definition of 'goods; on provided it was transmissible from hand to hand or capable of delivery which need not necessary, be in a tangible in a physical sense. Referring the case of Malerkotla Power Supply Co. v. Excise Taxation Officer, Sangpur, (1968) 22 STC 325 (Punj), it was observed that electric energy has the commonly accepted attributes of movable property. It can be stored and transmitted. It is also capable of theft. It may not be tangible, in the sense that it cannot be touched without considerable danger of destruction or injury but it was perceptible both as an illuminant and a fuel and also in other energy giving forms. Electric energy may not be property in the sense of the term "movable property" as used in producing steam. Similarly, signals transmitted by the third plaintiffs can also be transmitted, transferred, delivered, stored and possessed. In fact they are being communicated by the defendants. Many of the programmes are being stored and they can be possessed. In our view, therefore, all the attributes of a movable property are present. It must thus be held that signals are "movable property" within the meaning of Sale of Goods Act. There is also no merit in the argument of Mr. Kapadia that there is no conversion because the plaintiffs signals are not distorted or affected or diminished. The mere fact that signals themselves are not interfered with or distorted is of no consequence. 20. Considering the above said observation made by the various Hon'ble High Court, the signals can be treated as movable property is in a tangible or not in a physical sense. 21. In view of the facts and circumstances of the case, this court is of the view that investigation is required to be carried out to its logical end to nail the actual culprits who are behind the cable piracy and it can be done only if the Investigating Agency is permitted to proceed with the investigation in accordance with law. 22. Resultantly, the present application is dismissed. Rule discharged. Ad-interim relief stands vacated.