R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE09h DAY OF OCTOBER, 2020 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CRIMINAL PETITION NO.3757 OF2012C/W CRIMINAL PETITION NO.3756 OF2012IN CRL. P NO:
3757. OF2012 BETWEEN:
1. DR.RAJAH VIJAYA KUMAR @ DR.KUMAR @ D.V.KUMAR, AT S-CARD CAMPUS, SEEGEHALLI MAIN ROAD, VIRGONAGAR POST, BANGALORE – 560 049.
2. M/S CAREPLUS, 5/1, RADRAKSHINI, HAYAVADANA ROAD, GAVIPURAM EXTENTION, BANGALORE – 560 019 REPRESENTED BY DR.LOKNATH.
3. M/S CAREPLUS, 5/1, RADRAKSHINI, HAYAVADANA ROAD, GAVIPURAM EXTENTION, BANGALORE – 560 019 REPRESENTED BY MR.RAJHA VIJAYA KUMAR. …PETITIONERS (BY SRI K.R.KRISHNA MURTHY - M/S LAWYERS INC) 2 AND: WG.CDR (DR) V.G.VASISHTA (RETD), AGED ABOUT50YEARS, M/S SBF HEALTH CARE PVT. LTD., SHIVAS, 39/4, OUTER RING ROAD, DODDENEKUNDI, MARATHAHALLI, BANGALORE – 560 037. ...RESPONDENT (BY SRI K VARAPRASAD, ADVOCATE) **** THIS CRIMINAL PETITION IS FILED UNDER SECTION428CR.P.C PRAYING TO SET ASIDE THE ENTIRE PROCEEDINGS IN PCR NO.12658/2008 PENDING ON THE FILE OF THE IX ADDL. C.M.M., BANGALORE. IN CRL.P. NO:
3756. OF2012 BETWEEN: DR.RAJAH VIJAYA KUMAR @ DR.KUMAR @ D.V.KUMAR, AT S-CARD CAMPUS, SEEGEHALLI MAIN ROAD, VIRGONAGAR POST, BANGALORE – 560 049. … PETITIONER (BY SRI K.R.KRISHNA MURTHY – M/S LAWYERS INC) AND: WG.CDR (DR) V.G.VASISHTA (RETD), AGED ABOUT50YEARS, M/S SBF HEALTH CARE PVT. LTD., SHIVAS, 39/4, OUTER RING ROAD, DODDENEKUNDI, MARATHAHALLI, BANGALORE – 560 037. ...RESPONDENT (BY SRI K VARAPRASAD, ADVOCATE) 3 THIS CRIMINAL PETITION IS FILED UNDER SECTION482CR.P.C PRAYING TO SET ASIDE THE ENTIRE PROCEEDINGS IN C.C.NO.14063/2012 IN PCR NO.1879/2009 PENDING ON THE FILE OF THE IX ADDL. C.M.M., BANGALORE. THESE PETITIONS HAVING BEEN HEARD THROUGH VIDEO CONFERENCE/PHYSICAL HEARING AND RESERVED FOR ORDER
S, COMING ON FOR PRONOUNCEMENT OF ORDER
, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: ORDER
Criminal Petition No.3756/2012 is filed by the petitioner – accused for quashing the entire proceedings in C.C. No.14063/2012 arising out of P.C.R. No.1879/2009 on the file of IX Additional Chief Metropolitan Magistrate, Bengaluru, for the offence punishable under Sections 51 and 63 of Copyright Act, 1957 and Section 379 and 420 of IPC.
2. Criminal Petition No.3757/2012 is filed by the petitioners – accused Nos.1 to 3 for quashing the entire proceedings in P.C.R. No.12658/2008 on the file of IX Additional Chief Metropolitan Magistrate, Bengaluru, for the offence punishable under Sections 4 51 and 63 of Copyright Act, 1957 and Section 379, 403, 411 and 420 r/w Section 34 & 120B of IPC.
3. The facts stated in both private complaints and the grounds stated in the petitions challenging the impugned orders are almost identical. The complainant-respondent in both criminal petitions are one and the same. Hence, common order is passed.
4. The facts briefly stated in Crl.P. No.3756/2012 are that on the complaint filed by Wg.Cdr (Dr.) V.G.Vasishta (retired) represented by his GPA holder Wg.Cdr V.M.Raghunath (retired), the Magistrate has passed an order to register the case against the petitioner holding that there are sufficient materials to proceed against the accused person for the offences punishable under Sections 51 and 63 of Copyright Act, 1957 and Section 379 and 420 of IPC and has further ordered to issue summons to the 5 accused. Thereafter, the case was registered as C.C. No.14063/2012.
5. The allegations are that the complainant had conducted comprehensive medical research as Principal Investigator at the Institute of Aero Space Medicine in respect of Rotational Field Quantum Magnetic Resonance for treatment of Osteoarthritis (in short ‘RFQMR’ technology). The petitioner – accused had supplied the equipment which is known as ‘CYTOTRON’. After prolonged research, sufficient results had emerged. The complainant had published his achievements in various Journals. Thereafter, the complainant took voluntary retirement and started Health Care Unit under the name and style as M/s. SBF Healthcare Pvt. Ltd. The accused being an Engineer has caused the publication of a book titled ‘Cytonics – A mystery of the living cell’ and in the said book, he had reproduced the verbatim of a research paper authored by one of the eminent scientists of USA Mr. Steve 6 Haltiwanger, MD, C.C.N., from page Nos.1 to 81. In respect of the said violation of the copyright, legal action is taken by the copyright owner.
6. The complainant-respondent has caused a legal notice dated 16.06.2008 to the accused – petitioner drawing his attention about the plagiarization of the research material of the complainant-respondent. Thereafter, the accused started threatening the complainant that he would fix the complainant in false criminal cases. Apprehending threat of arrest, the complainant obtained anticipatory bail from the Principal Sessions Court, Bengaluru Rural District, Bengaluru. The complainant holds the copyright over the research publication on Cancer in the prestigious international renowned Journal. The accused is not a qualified Doctor, he being an Engineer is making commercial use of the research of the complainant by embarking upon a mission to make undue pecuniary gain to himself. The petitioner – accused has committed 7 theft of research material of the complainant- respondent and has also plagiarized the research material of the complainant, thereby he has committed offence under Sections 51 and 63 of Copyright Act, 1957 and Section 379 and 420 of IPC.
7. On going through the allegations made in the complaint and the sworn statement of the complainant, the Magistrate has passed the impugned order, which is challenged by the petitioner.
8. Crl.P. No.3757/2012 pertains to P.C.R. No.12658/2008. The allegations in the said P.C.R. are that the accused No.1 being an Engineer had no role whatsoever to play in medical research of Osteoarthritis and also in preparation and publication of the research material by the complainant – respondent. Thus, the complainant holds the exclusive copyright over the research article. The complainant has come across the brochure issued by one Dr. Loknath of M/s. Care Plus, 8 No.5/1, Rudrakshini, Hayavadana Road, Gavipuram extension, Bengaluru, and illegally making use of the research material for treating the patients without the consent/permission of the complainant – respondent. Thereby, the accused Nos.1 and 2 in tandem with each other have criminally plagiarized the research material of the complainant and are attempting to treat the patients using the research material of the complainant and hence, they have committed the offence punishable under Sections 51 and 63 of Copyright Act, 1957 and Section 379, 403, 411 and 420 r/w Section 34 & 120B of IPC.
9. The petitioners – accused being aggrieved by the order dated 29.06.2012 passed by the Magistrate in P.C.R. No.12658/2008, have sought for quashing of the same.
10. Heard learned counsel for the petitioners and learned counsel for the respondent – complainant. 9
11. The learned counsel for the petitioners would contend that the respondent – complainant was an employee in the Institute of Aero Space Medicine attached to the Indian Air Force. The complainant himself has admitted in his complaint that the petitioner – accused No.1 in both petitions, who is an Engineer by profession had supplied the equipment known as “CYTOTRON” for the purpose of conducting research. Some modifications were suggested by the respondent – complainant to the equipment. The research conducted by the complainant was not in his individual capacity, but the said research was conducted at the Institute of Aero Space Medicine with the prior approval. Thus, any research done by the complainant is not the exclusive property of the respondent – complainant. The research conducted by the respondent – complainant with the assistance of the petitioner No.1 – accused No.1 and other Scientists is not registered under the Copyright Act in the name of 10 the respondent – complainant or in any other person’s name. The invention / research said to have been done by the respondent – complainant is not patented. The complainant suppressing all these facts has filed sufficient complaints including the present two private complaints and also a civil suit with an intention to harass the petitioners.
12. Even as per the averments made in para No.16 of the complaint, the project is between the Institute and petitioner No.1 – accused. The respondent – complainant has only participated in the clinical trial. After conducting the clinical trial, the complainant has only submitted the report to the Institute. As such, the said report cannot be the exclusive intellectual property of the complainant. The claim of the complainant that he holds the exclusive copyright of the research publication on Cancer in prestigious international renowned Journal is false and baseless. There is no copyright whatsoever in the name of the respondent – 11 complainant. As such, there is no question of plagiarism or theft or wrongful acts of cheating by the petitioner No.1 – accused.
13. The respondent – complainant has filed five criminal complaints and one civil suit. Out of these cases, two criminal cases were withdrawn and one criminal case which was filed on behalf of the Scientist by name Mr. Steve Haltiwanger was dismissed as the complainant failed to appear. The original suit in O.S. No.6515/2008 filed by the GPA holder of the complainant is also dismissed for default, as he did not appear for cross-examination. The Miscellaneous case No.364/2012 filed by the respondent – complainant, for restoration of O.S. No.6515/2008 was also dismissed for non-prosecution. The complainant has filed frivolous cases against the petitioners – accused. The research work done by the respondent – complainant is a joint venture of the petitioner and others including the complainant and the said work was done when he was 12 under the employment of Institute of Aero Space Medicine. Under these circumstances, the first copyright belongs to the Institute and the complainant has no right whatsoever over the research report submitted by him. The project cooperative agreement referred to para No.16 of the complaint clearly indicates that the research work and clinical trials were conducted by the complainant and others in the Department of Radio Diagnosis and Imaging of the Institute of Aero Space Medicine, under sanctioned project No.172/2/2004 during the year 2004-2006 and the complainant submitted the report in the year 2007 to the Institute of Aero Space Medicine attached to the Indian Air Force, Bengaluru. Thus, at any rate, the respondent – complainant has no copyright in respect of the said report. Hence, all allegations made regarding violation of copyright, theft of research report papers and cheating, etc., are devoid of merits. 13
14. Per contra, the learned counsel for the respondent – complainant submits that the complainant being the Principal Investigator in the Institute had conducted the research and submitted the report which was published in international reputed journals. The said research material has been copied and utilized by the petitioner for his personal gain. As such, there is a clear violation of Sections 51 and 63 of Copyright Act and also there is a prima face case of theft and wrongful acts of cheating, which needs to be proved before the trial Court. Hence, there are no valid grounds for quashing the proceedings against the petitioners.
15. Before entering into the facts of the present case, it is necessary to consider the ambit and scope of jurisdiction under Section 482 CrPC vested in the High Court. Section 482 CrPC saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or 14 to prevent abuse of the process of any court or otherwise to secure the ends of justice.
16. After referring to several other cases, the Hon’ble Supreme Court in Vineet Kumar case [Vineet Kumar v. State of U.P., (2017) 13 SCC369: (2017) 4 SCC (Cri) 633]. concluded and made the following observations in para 41: “41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of court is sought to be abused by a person with some oblique motive, the court has to thwart the attempt at the very threshold. The court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC335:
1992. SCC (Cri) 426]. . Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment.” 15 17. Having regard to the submissions of the learned counsel for the petitioners and respondent, this Court has to consider as to whether the allegations made in the complaint attracts the ingredients of the offence under Sections 51 and 63 of Copyright Act and Section 379, 403, 411 and 420 r/w Section 34 & 120B of IPC.
18. The first and the foremost contention of the learned counsel for the petitioners is that there is no violation of the Copyright Act, as the research paper submitted by the respondent – complainant to the Institute of Aero Space Medicine is not his exclusive property and the said research report has not been registered under Copyright Act and there is no mention in the complaint that the invention said to have been done has been patented. 16
19. Chapter IV of Copyright Act, 1957, deals with Ownership of Copyright and the Rights of the Owner. Section 17 reads as under: “17. First owner of copyright – Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein: Provided that- (a) in the case of literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but 17 in all other respects the author shall be the first owner of the copyright in the work; (b) subject to the provisions of clause (a), in the case of a photograph taken, or a paining or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (c) in the case of work made in the course of the author’s employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; 1[(cc) in the case of any address or speech delivered in public, the person who has delivered such address or speech or if such person has delivered such address or speech on behalf of any other person, such other person shall be the first owner of the copyright therein notwithstanding that the 18 person who delivers such address or speech, or, as the case may be, the person on whose behalf such address or speech is delivered, is employed by any other person who arranges such address or speech or on whose behalf or premises such address or speech is delivered;]. (d) in the case of Government work, Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; 2[(dd) in the case of a work made or first published by or under the direction or control of any public undertaking, such public undertaking shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; Explanation – For the purposes of this clause and section 28A, “public undertaking” means– (i) an undertaking owned or controlled by Government; or 19 (ii) a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956); or (iii) a body corporate established by or under any Central, Provincial or State Act;) (e) in the case of a work to which the provisions of section 41 apply, the international organization concerned shall be the first owner of the copyright therein; 1[Provided that in case of any work incorporated in a cinematograph work, nothing contained in clauses (b) and (c) shall affect the right of the author in the work referred to in clause (a) of sub-section (1) of section 13.].
20. In the instant case, the respondent – complainant being the employee of Institute of Aero Space Medicine has conducted research and clinical trials under the specific project which was between the Institute and the petitioner No1. The complainant has only participated in the research proceedings and the 20 clinical trials and thereafter, he has submitted the report to the Institute. Under these circumstances, the respondent – complainant cannot claim right over the research report submitted to the Institute. In such an event, there is no application of Section 51 – Infringement of Copyright or Section 63 – Offence of infringement of copyright or other rights conferred by the Copyright Act.
21. Coming to the next point regarding theft and wrongful acts of cheating by the petitioners, on going through the entire materials like chargesheet in C.C. No.14063/2012 in Crl.P. No.3756/2012 and also in another petition i.e., P.C.R. No.12658/2008 in Crl.P. No.3757/2012, it is evident that the complainant is not the absolute owner of the copyright. In view of Section 17(c) of the Act, the Institute of Aero Space Medicine becomes the first owner. In the case on hand, the said Institute has not initiated any case against the petitioner – accused in Crl.P. No.3756/2012 and 21 petitioner Nos.1 to 3 in Crl.P. No.3757/2012 alleging the violation of copyright or commission of offence under Sections 379 and 420 IPC. Even the offence alleged under Sections 403, 411 and 420 r/w Section 34 and 120B of IPC, as far as the petitioners in Crl.P. No.3757/2012 are not attracted. Unless, the records reveal the prima facie involvement of petitioners, the criminal prosecution cannot be allowed to be proceeded.
22. It is pertinent to note that several criminal proceedings and a civil suit were also filed by the complainant through his GPA holder. Out of them, two criminal cases have been withdrawn and one criminal case which was filed on behalf of the Scientist by name Mr. Steve Haltiwanger is dismissed. The original suit in O.S. No.6515/2008 filed by the GPA holder of the complainant is for declaration that the plaintiff is the first author of intellectual property right in the treatment of Osteoarthritis of the knee joint by application of RFQMR. The said suit is dismissed for 22 default, as the complainant did not appear for cross- examination. Even the Miscellaneous case No.364/2012 which was filed by the respondent – complainant, for restoration of O.S. No.6515/2008 was also dismissed for non-prosecution. Under these circumstances, the respondent – complainant has failed to prove his copyright as the first owner.
23. Thus, the allegations made in the private complaint are so absurd and inherently improbable on the basis of which, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. As such, the proceedings deserve to be quashed as per the parameters laid down by the Hon’ble Supreme Court in the case of State of Haryana v. Bhajan Lal reported in 1992 Supp (1) SCC335:
1992. SCC (Cri) 426. 23
24. For the foregoing reasons, there are valid grounds to quash the proceedings. Accordingly, this Court proceed to pass the following: ORDER
i. The Criminal Petitions are allowed. ii. C.C. No.14063/2012 arising out of P.C.R. No.1879/2009 on the file of the IX Additional Chief Metropolitan Magistrate, Bengaluru and P.C.R. No.12658/2008 on the file of the IX Additional Chief Metropolitan Magistrate, Bengaluru, are quashed. Sd/- JUDGE SJ