IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 Bail Appl..No. 979 of 2010(J) CRIME NO.86 OF 2010 OF ERATTUPETTA POLICE STATION, KOTTAYAM PETITIONER/IST ACCUSED ------------------------------------------ JALEEL, KUNTHIPARAMBIL HOUSE, MARKET ROAD, ERATTUPETTA VILLAGE, ERATTUPETTA. BY ADV. SRI.SEBASTIAN DAVIS RESPONDENT: COMPLAINANT -------------------------- SUB INSPECTOR OF POLICE, ERATTUPETTA POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 979 OF 2010 ------------------------------------------------------ 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 :: 2 :: 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 :: 3 :: 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 B.A. NO. 979 OF 2010 :: 4 :: 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/