IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.2195 OF 2018 BETWEEN:
EHSAN SHARIFF, S/O LATE NAZIR AHAMED, AGED ABOUT 32 YEARS, NO.32, ANNAYAPPA BLOCK, BANGALORE-46. ... PETITIONER (BY SRI. IQBAL AHMED KHAN, ADVOCATE FOR PETITIONER (ABSENT);
Ms. SWAMINI GANESH MOHANAMBA, ADVOCATE FOR PETITIONER APPOINTED AS AMICUS CIRIAE) AND:
1. STATE BY SHIVAJI NAGAR POLICE, REPRESENTED BY ITS PUBLIC PROSECUTOR, BANGALORE.
2. R.GAJENDRA, S/O V.RAMAMURTHY, AGED 40 YEARS, NO.169, 6TH CROSS, AREBIC COLLEGE POST, RAMAKRISHNA HEGDENAGAR, BANGALORE-45. ... RESPONDENTS (BY SRI. RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED U/S 482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE CORUT MAY BE PLEASED TO QUASH THE ENTIRE PROCEEDINGS PENDING AGAINST THE PETITIONER PENDING ON THE FILE OF HON'BLE IN THE COURT OF THE IX ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT BENGALURU IN C.C.NO.12123/2016 FOR THE OFFENCES PUNISHABLE UNDER SECTION 52(a), 68(a) OF COPY RIGHT ACT AND SECTION 292 OF THE IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner who is arraigned as accused No.6 in Crime No.139/2010, is before this court for quashing of split-up charge sheet filed in C.C.No.12123/2016 for the offences punishable under Sections 52(A), 62(A) of the Copyright Act and Section 292 of Indian Penal Code.
2. The gist of prosecution case is: petitioner and other accused persons who are having Video shop, were found in possession and selling of pirated DVDs and MP3s which did not contain the name and address of the persons who had made the sound recording, name and address of the owner of the copyright in such work, the year of its publication, certificate issued under Cinematography Act, 1952, name and address of the person who had recorded the video film on declaration by him.
3. On completion of investigation, charge sheet came to be filed in C.C.No.1527/2011. Since the present petitioner arraigned as accused No.6 was absconding, split-up charge sheet was ordered to be filed. Proceedings against accused Nos.1, 2, 4, 7 to 9 was proceeded and after full-fledged trial, court has acquitted accused Nos.1, 2, 4, 7 to 9 on the ground that prosecution had not examined any witness and has not marked any documents to prove that member companies of Indian Music Industries had copyright over different language film and owners of seized DVDs and MP3s. In conclusion, it was held that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt. Hence, petitioner is before this court for quashing of proceedings pending against him in respect of same offence.
4. Since petitioner and his counsel are absent, this court appointed Ms.Swamini Ganesh Mohanambal as amicus curiae to assist the court and accordingly she has assisted the Court.
5. It is the contention of Ms.Swamini Ganesh Mohanambal, learned counsel appearing for the petitioner that continuation of proceedings against petitioner on the basis of split-up charge sheet would be an abuse of process of law inasmuch as co-accused have already been acquitted after a full-fledged trial and allegations made against present petitioner are similar and identical to the one made against accused Nos.1, 2, 4, 7 to 9 who have already been acquitted and on the ground of parity, she seeks for allowing the petition by acquitting the present petitioner and quashing the proceedings. Per contra, Sri.Rachaiah, learned High Court Govt. Pleader appearing for the State would submit that allowing the petition amounts to granting of premium to an accused who has been absconding and as such, he prays for rejection of the petition.
6. Having heard the learned Advocates appearing for the parties and on perusal of records, it would emerge therefrom that petitioner is similarly placed as that of accused Nos.1, 2, 4, 7 to 9 who came to be tried in C.C.No.1527/2011 namely allegations made against the accused persons who came to be tried was to the effect that they were found in possession of pirated DVDs and MP3s and selling the same. The learned trial judge has noticed that prosecution in order to establish that seized DVDs and MP3s were pirated, had examined PW.2, namely Police Inspector of CCB who did not tender himself for further examination-in- chief. Thus, for lack of his testimony being tested by way of cross-examination, trial court has rightly refused to accept his evidence relied upon by prosecution. That apart, trial judge has noticed that prosecution had not examined any witnesses and had not marked any documents to prove that member companies of Indian Music Industries had copyright over different language films and songs of seized DVDs and MP3s. As such, it has arrived at a conclusion and rightly so, that prosecution had failed to prove guilt of the accused beyond all reasonable doubt. The allegation made against petitioner as noticed hereinabove, is similar and identical to the allegation made against the accused who has been acquitted. In that view of matter, continuance of proceedings against petitioner against whom split-up charge sheet has been filed in C.C.No.12123/2016 and re-examining same witnesses would not only be an exercise in futility but would also be waste of precious judicial time and it would not serve any fruitful purpose.
For the reasons aforestated, I proceed to pass the following:
ORDER (i) Criminal Petition is allowed;
(ii) Proceedings pending against petitioner in C.C.No.12123/2016 before the IX ACMM, Bangalore, stands quashed and petitioner is acquitted of the offences alleged under Sections 52(A), 62(A) of the Copyright Act and Section 292 of Indian Penal Code (arising out of Crime No.139/2010).
This court places on record services rendered by Ms.Swamini Ganesh Mohanambal and directs High Court Legal Services Committee to pay her a professional fee of Rs.1,500/-, forthwith.
SD/-
JUDGE cbc