Case: Wire &amp; Wireless India Limited &amp; Others Vs. State of Maharashtra &amp; Another

cable television network at a place indicated by him to the cable operator, without further transmitting it to any other person.8.It is the case of the petitioners that for delivering pay channels in encrypted mode to the subscribers, an encryption system along with the Subscribers Management System is required to be installed. At the control room of a Multi System Operator, for short "M.S.O.", the signals of various pay channels are downlinked. These pay channels carry different encryptions which are required to be decrypted through decoders provided by the broadcasters. After downlinking the signals of various pay channels, the M.S.O. uses different decoders supplied by the broadcasters to decode the signals. Once the signals are decoded, these signals are combined in one feed which is known as "clean feed". The clean feed does not contain any encryption. The combined clean feed is then assigned a common encryption and transmitted to cable operators and ultimately to the subscribers premises where it is decrypted by Set Top Box, for short "S.T.B", and the signals of pay channels can be viewed on television sets of the subscribers.9.It is the contention on behalf of the petitioners that what was seen by the complainant and his team in the control room of the petitioner company was the clean feed which is the intermediary stage between the removal of encryption of different pay channels by the petitioner company and the assignment of a common encryption for such feed through encryption system. It is their contention that such a clean feed is required to monitor and check the quality of signals after combining the signals of different pay channels in a single feed so that after assigning the encryption when the signals are decoded/ decrypted at the subscribers premises, the subscribers should get a good quality picture without any distortion. It is their further case that the pay channels retransmitted by the petitioner company are receivable by the subscribers only through Set Top Boxes and it is not possible for any subscriber to view the signals of pay channels without deployment of STB, and therefore there is no violation whatsoever of the provision of law comprised under Section 4A of the said Act.10.On the other hand, it is the case of the respondents that in Digital Term Around Set Up, unlike the earlier Analogue Set Up System, it is the choice of subscriber which the Multi System Operator has to cater. It is further their case that in Digital Term Around Set Up, signals from multiple channels are routed through Remultiplexes for a subscriber. After receipt of the signals in Remultiplexes, the same are routed through Bit Rate Shaper which conditions the audio visual quality of signals and thereafter forwarded to the scrambler which acts as C.A.S.. Further the signals travel from Digital Modulator where the signals are modulated and forwarded to Radio Frequency Combiner where all channels are combined and forwarded through signal wire of cable network.11.It is the contention of the respondents that when signals are routed through Radio Frequency Combiner, the viewer cannot view all the channels on the television set. While disputing the contention of the petitioners that the programmes viewed in their office was a clean feed, it is sought to be argued that though in terms of notification of TRAI, on removal of smart card from Set Top Box, all the channels should go off air, that was not the situation in the control room of the petitioners, and it was found that inspite of removal of smart card from the Set Top Box, all pay channels were visible on television set in the control room and that therefore it was clear that the signals of pay channels were not encrypted and the same were forwarded to the subscribers. And that, therefore, it is the contention of the respondents that the programmes were transmitted to the subscribers in unencrypted form.12.Bare perusal of the impugned FIR nowhere discloses any allegation or accusation of transmission of programmes in unencrypted form to the subscribers. In fact, the FIR nowhere discloses any verification of the programme on any T.V. set at the premises of the subscribers. Considering the same, without going into the various other contentions sought to be canvassed in the matter, suffice to observe that the FIR which seeks to accuse the petitioners of commission of offence under Section 4A read with Sections 16 and 17 of the said Act on the basis that all the pay channels were available on T.V. Set at the control room of the petitioners, without the use of smart card in the Set Top Boxes, falls short of disclosing any cognizable offence to have been committed by the petitioners either under Section 4A or under any other provision of the said Act. Merely because clean feed was available at the control room of the petitioner company, without ascertaining whether all the pay channels were made available at the subscribers premises without use of the smart card in the said Set Top Box or not, it obviously discloses no cognisable offence by the petitioner. It is settled law that an FIR in terms of Section 154 of the Code of Criminal Procedure can be registered only when a cognizable offence is disclosed. Merely because the programmes were in the course of transmission, in the absence of any such certificate from a subscriber or without ascertaining whether they were available in contravention of the provision of Section 4A at the subscribers T.V. Set, the respondents were not justified in recording FIR about alleged violation of the provisions of law comprised under Section 4A of the said Act by the petitioners. Viewed from this angle, therefore, the impugned FIR cannot be sustained and is liable to be quashed.13.It is however made clear that this shall not preclude the respondents from taking appropriate steps to ascertain whether the petitioners are complying with the provisions of the said Act or not, and to initiate proceedings if found violating the provisions of law.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In fact, the FIR nowhere discloses any verification of the programme on any T.V. set at the premises of the subscribers. Considering the same, without going into the various other contentions sought to be canvassed in the matter, suffice to observe that the FIR which seeks to accuse the petitioners of commission of offence under Section 4A read with Sections 16 and 17 of the said Act on the basis that all the pay channels were available on T.V. Set at the control room of the petitioners, without the use of smart card in the Set Top Boxes, falls short of disclosing any cognizable offence to have been committed by the petitioners either under Section 4A or under any other provision of the said Act. Merely because clean feed was available at the control room of the petitioner company, without ascertaining whether all the pay channels were made available at the subscribers premises without use of the smart card in the said Set Top Box or not, it obviously discloses no cognisable offence by the petitioner. It is settled law that an FIR in terms of Section 154 of the Code of Criminal Procedure can be registered only when a cognizable offence is disclosed. Merely because the programmes were in the course of transmission, in the absence of any such certificate from a subscriber or without ascertaining whether they were available in contravention of the provision of Section 4A at the subscribers T.V. Set, the respondents were not justified in recording FIR about alleged violation of the provisions of law comprised under Section 4A of the said Act by the petitioners. Viewed from this angle, therefore, the impugned FIR cannot be sustained and is liable to be quashed.13.It is however made clear that this shall not preclude the respondents from taking appropriate steps to ascertain whether the petitioners are complying with the provisions of the said Act or not, and to initiate proceedings if found violating the provisions of law.