ORDER
Ahmad, J.
1. This is a reference under Section 438, Criminal P. C., made by Mr. S. N. Imam, Sessions Judge, Patna, for quashing the charges framed against the accused under Sections 427 and 489 of the Indian Penal Code.
2. The complaint in the case was filed by the opposite party Uma Shankar Bahadur. He claimed that he is one of the authors along with Sri Prafulla Chandra Ojha “Mukta”, who is the other author, of the two books named (1) “Admi ki Jeet. Part I” and (2) “Apne Desh Ki Kahaniya, Part I and II”. His case was that on 2-9-1949, an agreement was arrived at between him on the one part and Messrs. Better Books Co., Patna, on the other part of which, Sri Amarnath Bihari is a partner and by that agreement he assigned the copyright of the said works to Messrs. Better Books Company. This agreement shows that the author had compiled these two books along with some others at the instance of the publishers Messrs. Better Books Company on condition that the publishers would pay to the author for the works done by him at the rate of Re. 1/- per printed page excluding the covers and contents pages and that the copyrights of the works would be the property of the publishers. It was further stipulated therein that the publishers would be free to get those works revised, enlarged or improved by anyone they desired but at their own expense.
3. It is said in the petition of complaint that in accordance with the agreement dated 2-9-1949 the publishers Messrs. Better Books Company began to publish the copies of the said works with the complainant’s name as their author along with the name of Sri Prafulla Chandra Ojha “Mukta” as the co-author. This continued up to the seventh edition of the book “Admi ki Jeet, Part I” and the first reprint of “Apne Desh ki Kahaniya, Part I and II”. Thereafter it is alleged that in the eighth edition of the book “Admi ki Jeet Part I” and from the second reprint of “Apne Desh ki Kahaniya, Part I and IF the petitioner, who, as already stated, is the partner of the publishers Messrs Better Books Company, fraudulently and
dishonestly removed the author’s name from them, that is, the name of the complainant, and that ot Sri Prafulla Chandra Ojha “Mukta”.
The grievance of the complainant author is that he entrusted the books and their copyrights to the petitioner accused on- the understanding given by the latter that the petitioner accused would never tamper with the books or their copyrights and that their copyrights would return to the complainant after the period prescribed by law. But contrary to this the accused petitioner removed the complainant’s name as author from the books aforesaid with a view to prejudice the reputation of the complainant and also ultimately to deprive his reversionary right in the copyrights of the books.
4. On “the allegations stated above, the petitioner accused Amarnath Bihari was summoned under Sections 427 and 489, Penal Code, and the case was transferred to Mr. S. C. Gupta Judicial Magistrate, for disposal. On 10-11-1953, Mr. S. C. Gupta having recorded the evidence of the prosecution witnesses framed charges against the accused under those two sections, whereupon an application was filed by the accused petitioner before the learned Sessions Judge of Patna for Quashing the charges framed against him. The learned Sessions Judge on hearing the parties has now referred the matter to this court with the opinion that there is no case on the record for framing a charge against the accused petitioner either under Section 427 or under Section 489, Penal Code. It may be stated here that Dr. Qazi Nazrul Hassan appearing for the author complainant conceded at the outset that there was no material on the record against the accused petitioner for the charge under Section .427, Penal Code, and in my opinion also on the facts stated above no case for an offence under Section 427 is disclosed.
There is no allegation that the works of the author published in the books referred to above even if it be conceded for a moment that the works still remain his property, have anyway destroyed that property or that any change has been brought about in those works which has destroyed or diminished its value. In view of that the charge under Section 427, Penal Code, cannot stand and has to be quashed.
5. The other charge under Section 489, Penal Code, is also, in my opinion, on the allegations made in the petition of complaint not sustainable. Section 489 reads :
“Whoever removes, destroys, defaces or adds to any property mark, intending or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both”.
The property mark is defined in Section 479, Penal Code, which says “A mark used for denoting that moveable property belongs to a particular person is called a property mark”. This definition, therefore, makes it clear that Section 489 relates to moveable property only. The words “moveable property” have been defined in the Code under Section 22.
That defines ‘moveable property’ in the following words “The words ‘moveable property’ are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth”. Judged on the basis of the definition given in this section, Section 489 is applicable only to corporeal property.
In this case the property, which is corporeal, is the book wherein the works of the complainant under the terms of the agreement dated 2-9-1949, have been published, and it is clear that the name of the author even if printed on the title page of the books will not and cannot under the terms of the agreement indicate that the books belong to the author. All that, in my opinion, in the circumstances of the case the name can indicate is that the author of those books is the complainant and nothing beyond that. Therefore, the name of the author by itself, even if present on the title page, cannot be called the property mark of those books. At best it could show that the matters published in those books were his productions and that they were the outcome of his intelligence, labour and skill. But as the products themselves, which are the result of his intelligence, skill and labour, are not corporeal properties, therefore his name in relation to the works produced by him cannot be called under the law as defined in Section 479 a property mark in order to denote that the works done by him belong to the author. In that view of the matter, the removal of the name of the author from the books cannot constitute an offence under Section 489 of the Indian Penal Code.
I may repeat here that under the contract it was agreed upon that the copyrights of the works shall be the property of the publishers and that the publishers would be free to get those works revised, enlarged or improved by anyone they desired at their own expense. Under these terms, therefore, it is further clear that they had a large extent of rights assigned to them under the contract. If, as it is suggested, the removal of the name of the author is in fact an infringement of the terms of the contract whereby the author assigned his copyrights to the publishers, the proper course open to him is to institute a suit for injunction and damages and not to seek his remedy in the criminal court under Section 489, Penal Code. That section, in my opinion, is not at all applicable to the facts of this case. Dr. Qazi Nazrul Hassan tried to contend that the provisions of law laid down in Section 489 are applicable not only to corporeal property but to incorporeal property also and in support of his contention reliance was placed by him on the case of –‘Manchersha Ardeshir v. Ismail Ibrahim’, AIR 1936 Bom 167 (A).
That was a case wherein the question arose as to whether the words 'any property' used in Sections 421 and 423 of the Indian Penal Code include in them only corporeal property or also incorporeal property. The leading judgment in that case is by Divatia, J. Barles, J. agreed with the judgment and added a note of his own to it. Therein in the course of the discussion on the point stated above he has observed : "It is clear that in theft, robbery and receiving stolen property the property must be corporeal property, and very possibly the same can be said about 'mischief'. I am not so sure about 'criminal breach of trust'. But we do not think it necessary to consider the chapter section by section or to decide exactly whether the word 'property' in other sections can only refer to corporeal property, for, we are satisfied that there is no rule which restricts the meaning of the word in the section with which we are dealing.
The definition in Section 22 of ‘moveable property’ is an inclusive definition. It informs us that moveable property includes corporeal property of every description’, but it does not give us any information about incorporeal property. A wider definition is contained in the General Clauses Act, where ‘moveable property’ is defined in Section 3, Clause (34), as property of every description except immoveable property. The word ‘property’ in Section 421 is wide enough to include a chose in action, and it appears to us that we should give a wide interpretation to the word here since the act of dishonestly transferring a chose in action to defraud creditors is within the mischief of the section.”
I am afraid that the learned Judge in discussing the question as to whether the words ‘any property’ used in Sections 421 and 423 of the Indian Penal Code did or did not include incorporeal property has unnecessarily gone into the question as to what was meant by the words ‘moveable property’ as defined in Section 22 of the Code. That was not the subject-matter of discussion in that case. Therefore, that part of his judgment which deals with the definition of moveable property given in Section 22 is in my opinion obiter dictum.
6. Mr. S. N. Sahay appearing for the petitioner accused cited the following authorities and books in support of his proposition that the removal of the name of the author from the books by the publishers was not an infringement of the contract whereby the author assigned his copyrights to the publishers; (1) — ‘Booth v. (Edward) Lloyd’, (1910) 26 TLR 549 (B);’ (2) — ‘Macmillan & Co. v. K. & J. Cooper’, AIR 1924 PC 75 (C); (3) –‘Cox v. Cox’, (1853) 11 Hare 118 (D): (4) — ‘Archbold v. Sweet’, (1832) 5 C & P 219 (E); (5) –‘Gilbert v. Boosey & Co.’, (1889) 87 LT 355 (F); (6) — W. B. Yeats v. Eric Dickinson’, AIR 1938 Lah 173 (G) and (7) Halsbury’s Laws of England, second edition, volume XXVI, page 142, para 284. In my opinion, the proposition raised by Mr. Sahay does not arise for consideration in this case. The question as to whether the contract dealing with the assignment of the copyrights has or has not been in fact infringed will be the subject matter of discussion in a civil suit properly constituted; for that and is not relevant to the decision of a criminal case on a charge under Section 489, Indian Penal Code. To establish a charge under that section, the complainant has to prove three elements firstly that the name of the author on the books was to denote that the corporeal property on which the name appeared belonged to him; secondly that the name used as such has been destroyed, defaced or added to by the accused and thirdly that the accused did so intending thereby to cause injury
to some person; or that he did so knowing that he might thereby cause injury to some person.
In the circumstances of this case, as already stated above the name of the author even if allowed to appear in the books or on their title pages cannot be termed as a property mark in relation to the books or as a matter of fact in relation to any corporeal property as contemplated by Section 479 read with Section 22 Penal Code. Therefore, the allegation regarding the removal of the name of the author from the books referred to above or from their title pages by the publishers or by one of the partners namely, the petitioner, even if accepted as correct, cannot in law constitute an offence under Section 489 of the Indian Penal Code. Further the terms of contract assigning the copyright of the books to the publishers are so wide that it is difficult for the court to hold on the facts of this case that in removing the name of the author from the books the intention of the accused was nothing but to cause injury to the author and not to exercise a right which he
honestly believed was available to him under the contract. That being so, the charge under Section 489 of the Indian Penal Code as well cannot stand in law and has to be quashed.
7. For the reasons stated above, the reference is accepted and the rule is made absolute.