Mehinder Singii Sullar, J.(Oral) -
As, identical questions of law and facts arc involved, therefore, I propose to dispose of above indicated petitions, vide this common order, in order to avoid the repetition. However, the facts, which need a necessary mention for the limited purpose of deciding the core controversy, involved in the instant petitions. have been extracted from Criminal Misc. No.M-48106 of 2005 titled as "Anuradha Paudwal v. Brij Mohan Bhardwaj." in this context.
2. The epitome of the facts and material, culminating in the commencement, relevant for disposal of the present petitions and emanating from the record of the amended petition is that, complainant Brij Mohan Bhardwaj, son of Chaman Lai Bhardwaj-respondent(for brevity the complainant") filed a criminal complaint(Annexure P-1) against petitioner-Smt. Anuradha Paudwal and other co-accused, Super Cassettes Industries, its presenter Gulshan Kumar, Shekhar Sen, Musician, M/s. Sardar Cassette Company and M/s Jain and Company, on accusation of having committed the offence punishable under Sections 61, 63, 65 and 69 of The Copyright Act, 1957 and Sections 467, 468, 471 and 420 IPC.
3. The case set-up by the complainant, in brief, insofar as relevant was that, his father wrote many Books. including the Book titled as "Chaman Ki Shree Durga Stutti" in the year 1952, which was published for the first time by "Brij Mohan Bhardwaj Pustakalya". The Author had died in the year 1982. He was stated to have executed a Will in favour of the complainant. In this manner. the complainant claimed that now, he is the sole owner of the Copyrights of all the Books, including the Book in question written by his father. According to the complainant that, he has come to know that the accused have recorded and r presented a video in the set of two cassettes under the title of Shree Durga Stutti and all the Satotars were claimed to have been taken from the Book of "Chaman Ki Shree Durga Stutti". which is the violation of the provisions of the Copyright Act punishable under the indicated Sections. Inter alia, in the background of these allegations, the complainant filed the complaint against the petitioner(s)-accused. in the manner depicted hereinabove.
4. Sequelly, the Chief Judicial Magistrate(CJM), summoned all the accused, to face the trial for the commission of offence punishable under Section 63 of the Copyright Act and Section 420 IPC, by virtue of Impugned summoning order dated 11.07.1997(Annexure P-2)
5. The petitioner(s)-accused did not feel satisfied and preferred the present petition. for quashing the complaint(Annexure P-1), summoning order (Annexure P-2) and all subsequent proceedings arising therefrom, invoking the provisions of Section 482 Cr.P.C.
6. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind. the instant petitions deserve to be partly accepted in this context.
7. At the very outset, learned counsel for the petitioner(s) did not press the prayer, for quashing the complaint(Annexure P-1), at this stage, without prejudice to their rights. in any manner. However, the argument of the learned counsel that, vague non-speaking impugned summoning order(Annexure P-2), is arbitrary and illegal, has considerable force.
8. As is evident from the record that, the complainant has filed the complaint(Annexure P-1) and the CJM summoned all the petitioner(s)-accused, in a very casual manner by observing that "from the preliminary evidence and after going through the book and viewing the video Cassette, I find sufficient ground to proceed against the accused for an offence punishable under Sections 63 of the Copy Right Act and 420 IPC", for violation of the provisions of' The Copyright Act. Section 51 of Chapter XI of the Copyright Act posits the variety of incidents of' infringement of copyright. whereas Section 52 envisages the situation where certain acts will not amount to infringement of copyright acts. Likewise, Section 54 of Chapter XII defines the expression of "owner of copyright", whereas civil ti remedies for infringement of such copyright has been provided under Section 55 of The Copyright Act. Section 63 postulates that any person who knowingly infringes or abets the infringement of the copyright in a work, or any other right conferred by this Act, shall be punished under this Section.
9. Not only that. Chapter XV of the Code of Criminal Procedure enumerates procedure of taking cognizance of an offence in the wake of private complaints. Section 204 Cr.P.C. further provides that if in the opinion of a Magistrate taking cognizance of an offence that there is sufficient ground for proceeding. he may issue summons for appearance of the accused in the Court. In this manner, before terming any person as an accused, it was the statutory duty of the Magistrate, to form an opinion on the basis of relevant material on record that. as to when, how and in what manner, the petitioner(s) committed the indicated offences.
10. A conjoint and meaningful reading of these provisions would reveal that, it was the statutory duty of the CJM to apply his mind, as to whether the indicated acts of the accused are squarely covered and fall within the ambit of Chapter XI, or exempted clauses under Chapter XII of The Copyright Act. He ought to have discussed the material on record relatable to the relevant provisions of The Copyright Act and to record the valid grounds. for forming an opinion that there is prima facie material on record, to summon the petitioner(s) as an accused, in regard to the violation of the indicated provisions punishable under Section 63 of The Copyright Act. It is now well- settled principle of law that such orders must be informed by reasons, fair, c ear and must be structured by rational and relevant material on record, which are deeply lacking in the instant cases in this relevant connection. This matter is no more res integra and is now well-settled.
11. An identical question came to be decided by the Hon'ble Supreme Court in case Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney and others 2009(3) S.C.T. 39 :(2009) 4 Supreme Court Cases 240. Exhibiting the importance of passing speaking and reasoned order, the Hon'ble Apex Court ruled(para 8) as under:
"The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N. Mukheijee v. Union of India, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief must be disclosed in a judicial or quasi judicial order, even if it is an order of affirmation."
12. What cannot possibly be disputed here is that, summoning of an accused in a criminal case is a serious matter. Criminal law cannot possibly be set into motion as a matter of course. The order of the Magistrate. summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature complaint and the evidence both oral and documentary in support thereof, relatable to the relevant provisions of the offences and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of preliminary evidence. The accused cannot be summoned in a routine manner, in view of the law laid down by the Hon'ble Apex Court in case M/s Pepsi Foods Limited v. Special Judicial Magistrate. 1997(4) R.C.R.(Criminal) 761 : 1998 AIR (SC) 128. The ratio of the law laid down in the aforesaid judgments "mutatis-mutandis" is applicable to the facts of the present cases and is the complete answer to the problem in hand.
13. Meaning thereby, the impugned summoning order(Annexure P-2) is not only non-speaking, lacks application of mind, but illegal as well, cannot be sustained in the eyes of law and deserves to be quashed in the obtaining circumstances of the case.
14. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of subsequent trial of the case, the instant petitions are partly accepted. The impugned summoning order(Annexure P-2) is hereby quashed.
15. Needless to mention that, the trial Court would be at liberty to apply its mind and to pass a fresh summoning order in the light of aforesaid observations and in accordance with law.