IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 979 of 2010(J)
1. JALEEL, KUNTHIPARAMBI HOUSE,
... Petitioner
Vs
1. SUB INSPECTOR OF POLICE, ERATTUPETTA
... Respondent
For Petitioner :SRI.SEBASTIAN DAVIS
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :24/02/2010
O R D E R
K.T.SANKARAN, J.
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B.A. NO. 979 OF 2010
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Dated this the 24th day of February, 2010
O R D E R
This is an application for anticipatory bail under Section 438 of
the Code of Criminal Procedure. The petitioner is accused No.1 in
Crime No.86 of 2010 of Erattupetta Police Station, Kottayam District.
2. The offence alleged against the petitioner is under Section
52A read with Section 68A of the Copy Right Act, 1957.
3. The prosecution case is that on 3.2.2010, the Sub
Inspector of Police, Erattupetta got information that in the Fine Gift
House owned by the petitioner, pirated CDs and pirated DVDs are
being sold. He inspected the shop. At that time, one Mayin (accused
No.2) was there. He stated to the police that the shop belongs to the
first accused Jaleel. The police seized 34 DVDs, which do not
conform to the mandatory requirements as provided in Section 52A
of the Copy Right Act. Out of the 34 DVDs, 15 DVDs are of Tamil
films, 17 of English films and 2 of Malayalam films. Police also
seized eight numbers of MP3 DVDs of Tamil and English songs.
B.A. NO. 979 OF 2010
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The MP3s also do not conform to the requirements under Section
52A of the Copy Right Act. The infringement of Section 52A is
punishable under Section 68A of the Copy Right Act.
4. In Sureshkumar v. S.I. of Police (2007(3) KLT 363), it was
held that the offence under Section 63 of the Copy Right Act, where
the punishment provided is three years, is cognizable and non-
bailable. In Boban v, Union of India (2005 (2) KLT 831), it was held
that the expression “three years and upwards” occurring in the
second part of the Schedule to the Code of Criminal Procedure
would include an offence punishable for a term up to three years. In
view of these pronouncements, it cannot be disputed that the offence
alleged against the petitioner is non-bailable.
5. The learned counsel for the petitioner submitted that the
ingredients of Section 52A of the Copy Right Act are not made out
as there was no publication within the meaning of the Act. The
learned Public Prosecutor submitted that in view of the definition of
‘publication’ in Section 3 of the Act, the contention put forward by the
petitioner is unsustainable. The counsel for the petitioner submitted
that the aforesaid contention need not be considered in this Bail
B.A. NO. 979 OF 2010
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Application since he reserves the contention to be taken at the
appropriate stage. Therefore, the contention raised by the petitioner
in this regard is not being dealt with in this Bail Application.
6. The offence alleged against the petitioner is very grave in
nature. It is submitted by the learned Public Prosecutor that the film
industry has suffered a set back due to the indiscriminate sale of
pirated CDs and DVDs all through out the State of Kerala. It is
submitted that a concerted effort was taken by the police to contain
this unhealthy trend and the attempt of a few persons to make easy
money by resorting to illegal means. It is submitted that the situation
is under control in the State and instances of sale of pirated CDs and
DVDs have come down considerably. Section 52A was introduced
in the Copy Right Act, 1957 by Act 65 of 1984. The purpose of
introducing the penal provisions like Section 68A of the Copy Right
Act was to deal with the cases of publication and sale of pirated
sound recordings and video films effectively.
7. Taking into account the facts and circumstances of the
case, I am not inclined to accept the contention of the learned
counsel for the petitioner that custodial interrogation of the petitioner
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is not required in the present case. The investigating agency has to
complete the investigation in an effective manner to bring to book the
real culprits to enable the Court to deal with the cases effectively.
Custodial interrogation may some times be required in a case during
investigation. In the facts and circumstances of the case, I am of the
view that the petitioner is not entitled to the discretionary relief under
Section 438 of the Code of Criminal Procedure. If anticipatory bail is
granted to the petitioner, it would adversely affect the proper
investigation of the case.
For the aforesaid reasons, the Bail Application is dismissed.
(K.T.SANKARAN)
Judge
ahz/