HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION NO.378 OF 2009 DATE:05.08.2010 Between: Mrs. Apurva Purohit …… Petitioner. And: The State of AP., rep. by PP, High Court of AP and another. …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION NO.378 OF 2009 ORDER: 1. The petitioner/A-2 is accused of offences punishable under Section 375/34 IPC and Sections 51, 63/70 of the Copy Right Act, 1957 (in short, the Act) in C.C.No.826 of 2008 on the file of I Additional Chief Metropolitan Magistrate, Hyderabad. A-2 is Chief Executive Officer of Music Broadcast Private Limited which is broadcasting at 91.1 F.M. The 2nd respondent/complainant alleged in the complaint that the complainant is a Copy Right Society registered under Section 33 of the Act to carry on Copy Right business in ‘Musical Works and Literary Works’. Along with the complaint, the complainant has furnished annexure showing list of members of the complainant company, and agreements entered into between the complainant and some of the members. According to the complainant whenever Musical Work or Literary Work is being broadcasted as communication to the public by private or Government establishments for their commercial use, they have to obtain valid licence from the complainant. The complainant also filed instances and examples of such obtaining licences from it. Even as per the petitioner’s case, previously Radio City 91.1 Broadcasting FM channel obtained such licence from the complainant by entering into agreement and paid huge sums of money around to Rs.1,27,62, 589/-. Subsequently the accused are stated to have entered into agreement with another society viz., Phonographic Performance Limited in that regard. The accused filed Civil Suit No.2401 of 2006 in the High Court of Bombay against the complainant and others for several reliefs including relief of refund of above licence fee paid. The said Civil Suit is stated to be pending. Simply because Civil Suit is pending between the parties, the dispute between the parties cannot become a pure civil dispute. It has to be seen whether there is any violation of the penal provisions in respect of which the lower court took cognizance of the case against the accused. 2. It is contended by the Senior Counsel appearing for the petitioner that the petitioner is a resident of Mumbai, which is outside the territorial jurisdiction of the lower court and that therefore, the lower court should have followed amended Section 202 Cr.P.C before taking cognizance of the case for the above offences. It is contended that in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, then the Magistrate who postponed issue of process against the accused and either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding and that it is a mandatory provision. Section 202 Cr.P.C does not prescribe the mode of enquiry contemplated thereunder. The lower court before taking cognizance of the case for the above offences, recorded sworn statement of the complainant who is Chairman of Indian Performing Rights Society Limited, Mumbai and thereupon took cognizance of the case for above offences only, even though in the complaint some more penal provisions of law were alleged. It is contended that recording sworn statement of the complainant was done by the Magistrate in accordance with Section 200 Cr.P.C and not in compliance of Section 202 Cr.P.C. At this stage, it may be noted that it is not incumbent on the part of the Magistrate to record sworn statements of all the witnesses mentioned in the complaint during enquiry because the case is not one exclusively triable by a Court of Session. Even in the complaint, the complainant has cited himself and another as witnesses. This Court is of the opinion that recording sworn statement of the complainant by the lower court is sufficient compliance of not only Section 200 Cr.P.C but also Section 202 Cr.P.C. After recording the said sworn statement during pre-cognizance enquiry, the lower court took cognizance of the case for the above offences, because the lower court did not think it necessary to direct investigation made by a police officer or any other person in this matter. 3. Secondly, it is contended by the Senior Counsel for the petitioner that in the complaint, no instances of violation of the alleged Copy Right by the accused are mentioned, to the effect in respect of which lyric or lyrics or song or songs the complainant had obtained assignment of Copy Right in its favour and which lyric or song was played in F.M Broadcasting belonging to the accused and on what date. No doubt, the complainant’s complaint does not contain those details. At the same time, the 2nd respondent’s counsel stated that along with complaint and sworn statement, the complainant had handed over bunch of C.Ds (Compact Discs) to the lower court evidencing violation of the Copy Rights. It is contended that neither in the complaint nor in the sworn statement, the factum of complainant filing CDs into court is mentioned. According to the complainant, the accused have been committing the offences from 01.03.2006 onwards till the date of filing of the complaint in the lower court. This Court is of the view that it is for the lower court to go into the said factual aspect of instances of violation of the Copy Right and to decide the same. This Court in this petition under Section 482 Cr.P.C cannot go into the said factual aspect. 4. It is contended that non-bailable warrant was issued against A-2 and that relief may be granted in respect of the same. 5. In the result, the criminal petition is dismissed. However, the petitioner/A-2 is directed to surrender before the lower court on or before 24.08.2010, in which event she shall be released on bail on furnishing personal bond for Rs.10,000/- (Rupees ten thousand only) together with two sureties for the like sum each to the satisfaction of the lower court. __________________________________ SAMUDRALA GOVINDARAJULU,J. Date:05.08.2010. Gk. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION NO.378 OF 2009 Date:05.08.2010 Gk.