Himachal Pradesh High Court
Dr. Ena Sharma vs State Of Himachal Pradesh & Others on 26 June, 2025
Neutral Citation No. ( 2025:HHC:19863 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 242 of 2023
.
Reserved on: 02.06.2025
Date of Decision: 26th June, 2025.
Dr. Ena Sharma ...Petitioner
Versus
State of Himachal Pradesh & others ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? Yes
For the Petitioner : M/s Ashok Sharma, Pawan
Gautam and Gauri Sharma,
Advocates.
For Respondent No.1 : Mr. Lokender Kutlehria,
Additional Advocate General.
For Respondent No.2 : Mr. Ajay Kochhar, Sr. Advocate
with Mr. Shivank Singh Panta
and Mr. Varun Chauhan,
Advocates.
For Respondent No.3 : Mr. Bhim Raj Sharma,
Advocate.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
quashing of FIR No. 131 of 2022, dated 19.12.2022, registered at
Police Station Nahan, District Sirmaur for the commission of an
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offence punishable under Section 63 of Copy Copyright Act,
1957.
.
2. Briefly stated, the facts giving rise to the present
petition are that the informant made a complaint to the police,
asserting that she is a Senior Resident in Dr. Yashwant Singh
Parmar Medical College, Nahan. She published her research
article as the second author in the International Journal of
Advanced Research (IJAR). She found that X-ray image, surgery
image, Intraoperative image and research material were
misused by the petitioner Ena Sharma, without her permission
and knowledge, in the Journal of Pharmaceutical Research
International (JPRI) in February 2021; hence, a prayer was made
to take action in the matter.
3. The police registered the FIR and commenced the
investigation.
4. Being aggrieved by the registration of the FIR, the
petitioner has filed the present petition, asserting that the
informant was working as an Assistant Professor in the
Department of Periodontics in Maharishi Markandeshwar
Medical College and Hospital (MMMCH) at Solan. Dr. Amit
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Lakhani, the informant’s husband, was also working in the
same hospital. The informant and her husband, Dr. Amit
.
Lakhani, Dr. Uday and Dr. S.M. Bhatnagar submitted their article
on 13.01.2017 for publication in the IJAR titled Wrist Arthrodesis
in Rheumatoid Arthritis using reconstruction plate. Dr. Amit
Lakhani was the first author. The names of the informant and
other members were also mentioned. This article was accepted
by the Journal on 08.02.2017 and was published in March 2017.
All the authors transferred their copyrights in favour of the
Journal. The article contained images of the research conducted
by Dr. Amit Lakhani on 05 patients (four females and one male)
aged between 28 to 44 years. The petitioner, Dr. Amit Lakhani
and Harsh Mandher submitted a research paper for publication
based on the retrospective review of 15 patients of Rheumatoid
Arthritis. This study was designed by Dr. Amit Lakhani, who also
wrote the protocol and the first draft of the manuscript. The
images in the research paper were submitted by Dr. Amit
Lakhani based on a study conducted in the Department of
Orthopaedics between 2013 to 2016 and surgeries performed
upon 15 patients (11 females and 4 males). The petitioner
performed a statistical analysis. This research paper was
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submitted on 02.11.2020, accepted on 08.01.2021, and was
published on 13.02.2021. Both articles are different from each
.
other. Both articles were based on the case study exclusively
conducted by Dr. Amit Lakhani. The material and methodology
of the second article are different from the first. The results
obtained in both studies are different. There is no infringement
of the copyright. The petitioner noticed that the abstract of the
first article pertained to some other study and did not relate to
the Orthopaedic study. The petitioner clarified her stand in reply
to the notice issued to her. The petitioner brought to the notice
of IJAR that the abstract was wrongly mentioned in the first
article, and the article was removed. No case for the violation of
infringement of copyright is made out. The complaint is false.
There is no similarity between the two articles except some
images, which are the exclusive research of Dr. Amit Lakhani.
The petitioner is a general physician and not an orthopaedic
surgeon. The article has been removed, and there can be no
violation of the copyright. The continuation of the proceedings
amounts to abuse of the process of the Court; therefore, it was
prayed that the present petition be allowed and the FIR be
quashed.
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5. The petition is opposed by respondent No.1 by filing
reply taking a preliminary objection regarding lack of
.
maintainability. The contents of the petition were denied on
merits. It was asserted that the investigation is at the initial
stage, and necessary correspondence for supplying information
has been made to IJAR. The petitioner cannot escape from the
liability to infringe the copyright; hence, it was prayed that the
present petition be dismissed.
6. A separate reply was filed by respondent No.2,
making preliminary submissions outlining her contribution and
her status and preliminary objections regarding lack of
maintainability, and the petitioner being guilty of suppressing
the material fact. It was asserted that the informant obtained
her MBBS degree from Dr. Rajendra Prasad Government Medical
College, Tanda, in the year 2008 and Doctor of Medicine from
Indira Gandhi Medical College and Hospital, Shimla, in the year
2013. She served in various hospitals. She, Dr. Amit Lakhani, Dr.
Uday and Dr. S.M. Bhatnagar published an article in IJAR in
March 2017 based on an extensive study conducted by the
authors on five patients. The abstract was wrongly published.
The research paper was protected by copyright law. The
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photographs/samples /observations/results were published,
and they formed an essential part of the research paper. The
.
photographs and the research material were copied in the
second article published by the petitioner along with other
authors. The consent of the informant was not obtained, and in
this manner, her copyright in the first article was infringed. The
police are investigating the matter; therefore, it was prayed that
the present petition be dismissed.
7. Dr. Amit Lakhani, respondent No.3, also filed a reply
asserting that he, the informant and other doctors published an
article in IJAR in March 2017 and thereafter second article in
February 2021. These articles were based upon the exclusive
study conducted by respondent No.3. The informant never
conducted any study on any patient suffering from Wrist
Rheumatoid and had not referred any patient to the
Government or a private institute. Respondent No.3 had
included the name of the informant to improve her professional
profile. The informant was not a copyright holder of the first
article, and she had no right to file the complaint. The
respondent No.3 is the principal author, and the informant
cannot claim any copyright in the study. The Indian Council of
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Medical Research (ICMR) is the statutory authority to look into
all complaints regarding copyright disputes, and the FIR should
.
not have been lodged in the present matter. There is a dispute
between respondent No.3 and the informant. The dispute was
settled between the parties before the District Legal Services
Authority (DLSA), and it was agreed that the informant would
not file any complaint against her husband; however, she
continued to file complaints. Respondent No.3-Dr. Amit
Lakhani, being the principal author, had the right to
subsequently publish his work in another Journal; therefore, it
was prayed that the present petition be dismissed.
8. A separate rejoinder denying the contents of the
reply and affirming those of the petition was filed.
9. I have heard M/s Ashok Sharma, Pawan Gautam and
Gauri Sharma, learned counsel for the petitioner, Mr. Lokender
Kutlehria, learned Additional Advocate General for respondent
No.1/State, Mr. Ajay Kochhar, learned Senior Counsel assisted by
M/s Shivank Singh Panta and Varun Chauhan, learned counsel
for respondent No.2 and Mr. Bhim Raj Sharma, learned counsel
for respondent No.3.
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10. Mr. Ashok Sharma, learned counsel for the
petitioner, submitted that the petitioner is innocent and she
.
was falsely implicated. The first article was published by Dr.
Amit Lakhani based on an exclusive study conducted by him.
The name of the informant was mentioned because she
happened to be the wife of Dr. Amit Lakhani. The copyright was
assigned to IJAR as per the conditions of the publication. The
informant had no subsisting copyright. The first article was
removed after it was found that the abstract did not match the
contents of the main article. The petitioner had only assisted
statistically in the publication of the article. The informant had
a remedy for approaching the ICMR or the Registrar of
Copyright for the redressal of her grievances. There is a
matrimonial dispute between Dr. Amit Lakhani and the
informant, and a false case was made against the petitioner to
drag her into the litigation; hence, he prayed that the present
petition be allowed and the FIR be ordered to be quashed. He
relied upon the judgments of Hon’ble Supreme Court and this
Court in Madhavrao Jiwaji Rao Scindia & Anr. Etc vs Sambhajirao,
AIR 1988 Supreme 709, Suresh Chand versus State of H.P,
2024:HHC:15268, B.N. John vs. State of UP and ors. AIR 2025 SC 759
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and Ajay Malik vs. State of Uttrakhand and ors, 2025 INSC 118 in
support of his submission.
.
11. Mr. Lokender Kutlehria, learned Additional Advocate
General, for respondent No.1/State, submitted that the police
have registered the FIR. The investigation is continuing, and it
is premature to quash the FIR. The police will file a cancellation
report if no case is made out, and the Court should not scuttle
the proceedings at the initial stage; therefore, he prayed that
the present petition be dismissed and the police be permitted to
carry out the investigation.
12. Mr. Ajay Kochhar, learned Senior Counsel for the
informant, submitted that the informant was the joint author of
the study in the first article, as is apparent from the article
itself. The concept of locus standi is alien to criminal law. The
copyright subsisted with IJAR, and the petitioner could not have
published the images in the second article without the
permission of IJAR. The claim made by Dr. Amit Lakhani that he
had the right to use the images is not correct because he has no
right after the assignment of copyright to IJAR. The substantial
similarity is to be seen while determining the infringement of
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the copyright, and an exact copy is not required to be proved.
The documents filed by the petitioner, along with the petition,
.
cannot be looked into at this stage because their authenticity
has not been established. He relied upon the judgments in R.G.
Anand versus Delux Films, AIR 1978 SC 1613, Fateh Mehta versus OP
Singhal, AIR 1990 RJ 8, M/s Knit Pro International Versus State of
NCT of Delhi, 2022 LIVE Law (SC) 505, AR Antulay V. Ram Dass,
1984 AIR SC 718, Vishwa Mitra versus OP Poddar, 1984 AIR SC 5,
Manohar Lal versus Vinesh Anand and ors. 2001 (5) SCC 407, Ratan
Lal vs. Prahlad Jat and ors., 2017 (9) SCC 340, State vs. Nagoti
Menkataramanna, 1996 8 JT 282, Superintendent CBI vs. Tapan,
2003 (6) SCC 175, Neeharika Infra vs. State of Maharashtra, 2021
(5) Scale 610, Supriya Jain vs. State of Haryana, 2023 (7) SCC 711,
CBI Vs. Aryan Singh, 2023 SCC Online 379, Mahesh Chaudhary vs.
State of Rajasthan, 2009 (4) SCC 439, Priti Safar vs. State of NCT of
Delhi, 2021 (16) SCC 142, Fr. KO Tomas Vs. State of Kerala in
Criminal M.C. No. 4827 of 2013 decided on 23.01.2017, Vinay
Kumar vs. State of H.P. in Cr.MMO No. 97 of 2022 decided on
16.09.2024, Ganga Bal vs. Shriram, 1990 SCC Online MP 213,
Bharat Metal Box Company Limited vs. G.K. Strips Pvt. Ltd and anr.,
2004 STPL 43 AP, Mehender K.C. State of Karnataka and anr., 2022
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(2) SCC 129, Supriya Jain vs. State of Haryana and anr., 2023 (7)
SCC 711, Priyanka Jaiswal vs. State of Jharkhand and ors., 2024 SCC
.
Online SC 685, Central Bureau of Investigation vs. Aryan Singh and
ors., 2023 (18) SCC 399, Central Bureau of Investigation versus
Arvind Khanna, 2019 (10) SCC 686, Tilly Gifford vs. Michael Floyd
Eshwar and anr., 2017 (0) Supreme (SC) 902 and Sourabh
Bhardwaj and anr., vs. State of H.P and ors., 2023:HHC:13695 in
support of his submission.
13. Mr. Bhim Raj Sharma, learned counsel for
respondent No.3-Dr. Amit Lakhani submitted that respondent
No.3 was a leading author of the study. He had named the
informant because she is his wife to improve her career
prospects. She had no copyright in the first article, and there
can be no violation of the use of the study conducted by an
author in the subsequent article. Therefore, he prayed that the
present petition be dismissed.
14. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
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15. The law relating to quashing of FIR was explained by
the Hon’ble Supreme Court in B.N. John v. State of U.P., 2025 SCC
.
OnLine SC 7 as under: –
“7. As far as the quashing of criminal cases is concerned,
it is now more or less well settled as regards the
principles to be applied by the court. In this regard, one
may refer to the decision of this Court in State of
Haryana v. Ch. Bhajan Lal, 1992 Supp (1) SCC 335, whereinthis Court has summarized some of the principles under
which FIR/complaints/criminal cases could be quashed
in the following words:
“102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this
Court in a series of decisions relating to the exercise of
the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code whichwe have extracted and reproduced above, we give the
following categories of cases by way of illustration
wherein such power could be exercised either toprevent abuse of the process of any court or otherwise
to secure the ends of justice, though it may not bepossible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines orrigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in their
entirety, do not prima facie constitute any offence
or make out a case against the accused.
(2) Where the allegations in the first
information report and other materials, if any,
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Neutral Citation No. ( 2025:HHC:19863 )cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate.
within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made
in the FIR or complaint and the evidence
collected in support of the same do not disclose
the commission of any offence and make out a
case against the accused.
(4) Where the allegations in the FIR do not
constitute a cognizable offence but constitute only
a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2)
r of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding against
the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is
instituted) to the institution and continuance of the
proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to a
private and personal grudge.” (emphasis added)
8. Of the aforesaid criteria, clause no. (1), (4) and (6)
would be of relevance to us in this case.
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In clause (1) it has been mentioned that where the
allegations made in the first information report or the
complaint, even if they are taken at their face value and
.
accepted in their entirety do not prima facie constitute
any offence or make out a case against the accused, then
the FIR or the complaint can be quashed.
As per clause (4), where the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted by
a police officer without an order dated by the Magistrate
as contemplated under Section 155 (2) of the CrPC, and in
such a situation, the FIR can be quashed.
Similarly, as provided under clause (6), if there is an
express legal bar engrafted in any of the provisions of
the CrPC or the concerned Act under which the criminal
proceedings are instituted, such proceedings can be
quashed.”
16. This position was reiterated in Ajay Malik v. State of
Uttarakhand, 2025 SCC OnLine SC 185, wherein it was observed:
“8. It is well established that a High Court, in exercising
its extraordinary powers under Section 482 of the CrPC,
may issue orders to prevent the abuse of court processesor to secure the ends of justice.
These inherent powers are neither controlled nor limited
by any other statutory provision. However, given the
broad and profound nature of this authority, the High
Court must exercise it sparingly. The conditions for
invoking such powers are embedded
within Section 482 of the CrPC itself, allowing the High
Court to act only in cases of clear abuse of process or
where intervention is essential to uphold the
ends of justice.
9. It is in this backdrop that this Court, over the
course of several decades, has laid down the principles
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Neutral Citation No. ( 2025:HHC:19863 )quashing criminal proceedings at the threshold, thereby
pre-empting the Prosecution from building its case
before the Trial Court. The grounds for quashing, inter.
alia, contemplate the following situations : (i) the
criminal complaint has been filed with mala fides; (ii) the
FIR represents an abuse of the legal process; (iii)
no prima facie offence is made out; (iv) the dispute is civilin nature; (v.) the complaint contains vague and omnibus
allegations; and (vi) the parties are willing to settle and
compound the dispute amicably (State of Haryana v.
Bhajan Lal, 1992 Supp (1) SCC 335).
17. It was held in Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692: 1988 SCC (Cri)
234: 1988 SCC OnLine SC 80 that the Court has to determine
whether the uncontroverted allegations in the complaint
constitute a cognizable offence when the prosecution is at the
initial stage. It was observed at page 695
7. The legal position is well settled that when a
prosecution at the initial stage is asked to be quashed, the
test to be applied by the court is as to whether the
uncontroverted allegations as made prima facie establish
the offence. It is also for the court to take into
consideration any special features which appear in a
particular case to consider whether it is expedient and in
the interest of justice to permit a prosecution to continue.
This is so on the basis that the court cannot be utilised for
any oblique purpose and where in the opinion of the court
chances of an ultimate conviction are bleak and,
therefore, no useful purpose is likely to be served by
allowing a criminal prosecution to continue, the court
may while taking into consideration the special facts of a
case also quash the proceeding even though it may be at a
preliminary stage.
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18. The parameters for exercising jurisdiction to
interfere with the investigations being carried out by the police
.
were considered by the Hon’ble Supreme Court in Neeharika
Infrastructure (P) Ltd. v. State of Maharashtra, (2021) 19 SCC 401:
2021 SCC OnLine SC 315, and it was observed at page 444:
13. From the aforesaid decisions of this Court, right from
the decision of the Privy Council in Khwaja NazirAhmad [King Emperor v. Khwaja Nazir Ahmad, 1944 SCC
OnLine PC 29: (1943-44) 71 IA 203: AIR 1945 PC 18], the
following principles of law emerge:
13.1. The police has the statutory right and duty under the
relevant provisions of the Code of Criminal Procedure
contained in Chapter XIV of the Code to investigate into
cognizable offences.
13.2. Courts would not thwart any investigation into the
cognizable offences.
13.3. However, in cases where no cognizable offence or
offence of any kind is disclosed in the first information
report, the Court will not permit an investigation to goon.
13.4. The power of quashing should be exercised
sparingly with circumspection, in the “rarest of rare
cases”. (The rarest of rare cases standard in its
application for quashing under Section 482CrPC is not to
be confused with the norm which has been formulated in
the context of the death penalty, as explained previously
by this Court.)
13.5. While examining an FIR/complaint, quashing of
which is sought, the Court cannot embark upon an
enquiry as to the reliability or genuineness or otherwise
of the allegations made in the FIR/complaint.
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13.6. Criminal proceedings ought not to be scuttled at the
initial stage.
13.7. Quashing of a complaint/FIR should be an exception
.
and a rarity rather than an ordinary rule.
13.8. Ordinarily, the courts are barred from usurping the
jurisdiction of the police, since the two organs of the
State operate in two specific spheres of activities. The
inherent power of the court is, however, recognised to
secure the ends of justice or prevent the above of the
process by Section 482CrPC.
13.9. The functions of the judiciary and the police are
complementary, not overlapping.
13.10. Save in exceptional cases where non-interference
would result in the miscarriage of justice, the Court and
the judicial process should not interfere at the stage of
investigation of offences.
13.11. Extraordinary and inherent powers of the Court do
not confer an arbitrary jurisdiction on the Court to act
according to its whims or caprice.
13.12. The first information report is not an encyclopaedia
which must disclose all facts and details relating to the
offence reported. Therefore, when the investigation by
the police is in progress, the court should not go into the
merits of the allegations in the FIR. Police must be
permitted to complete the investigation. It would be
premature to pronounce the conclusion based on hazy
facts that the complaint/FIR does not deserve to be
investigated or that it amounts to an abuse of the process
of law. During or after the investigation, if the
investigating officer finds that there is no substance in
the application made by the complainant, the
investigating officer may file an appropriate
report/summary before the learned Magistrate, which
may be considered by the learned Magistrate in
accordance with the known procedure.
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13.13. The power under Section 482CrPC is very wide, but
the conferment of wide power requires the Court to be
cautious. It casts an onerous and more diligent duty on
.
the Court.
13.14. However, at the same time, the Court, if it thinks
fit, regard being had to the parameters of quashing and
the self-restraint imposed by law, more particularly the
parameters laid down by this Court in R.P. Kapur [R.P.
Kapur v. State of Punjab, 1960 SCC OnLine SC 21: AIR 1960
SC 866] and Bhajan Lal [State of Haryana v. Bhajan Lal,
1992 Supp (1) SCC 335: 1992 SCC (Cri) 426], has the
jurisdiction to quash the FIR/complaint.
13.15. When a prayer for quashing the FIR is made by the
alleged accused, the Court when it exercises the power
under Section 482CrPC, only has to consider whether or
not the allegations in the FIR disclose the commission of
a cognizable offence and is not required to consider on
merits whether the allegations make out a cognizable
offence or not and the court has to permit the
investigating agency/police to investigate the allegations
in the FIR.
19. It was held in State of Karnataka v. L.
Muniswamy (1977) 2 SCC 699: 1977 SCC (Cri) 404 that the High
Court can quash the criminal proceedings if they amount to an
abuse of the process of the Court. It was observed at page 703:
“7. … In the exercise of this wholesome power, the High
Court is entitled to quash a proceeding if it comes to the
conclusion that allowing the proceeding to continue
would be an abuse of the process of the Court or that the
ends of justice require that the proceeding ought to be
quashed. The saving of the High Court’s inherent powers,
both in civil and criminal matters, is designed to achieve
a salutary public purpose, which is that a court
proceeding ought not to be permitted to degenerate into a::: Downloaded on – 26/06/2025 21:24:53 :::CIS
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Neutral Citation No. ( 2025:HHC:19863 )weapon of harassment or persecution. In a criminal case,
the veiled object behind a lame prosecution, the very
nature of the material on which the structure of the.
prosecution rests, and the like would justify the High
Court in quashing the proceeding in the interest of
justice. The ends of justice are higher than the ends of
mere law, though justice has got to be administeredaccording to laws made by the legislature. The
compelling necessity for making these observations is
that without a proper realisation of the object and
purpose of the provision which seeks to save the inherentpowers of the High Court to do justice, between the State
and its subjects, it would be impossible to appreciate the
width and contours of that salient jurisdiction.”
20. The term abuse of the process was explained in
Chandran Ratnaswami v. K.C. Palanisamy, (2013) 6 SCC 740:
(2014) 1 SCC (Cri) 447: 2013 SCC OnLine SC 450 at page 761:
33. The doctrine of abuse of process of court and the
remedy of refusal to allow the trial to proceed is a well-
established and recognised doctrine both by the English
courts and courts in India. There are some established
principles of law which bar the trial when there appears
to be an abuse of the process of the court.
34. Lord Morris in Connelly v. Director of Public
Prosecutions [1964 AC 1254 : (1964) 2 WLR 1145 : (1964) 2
All ER 401 (HL)], observed: (AC pp. 1301-02)
“There can be no doubt that a court which is endowed
with a particular jurisdiction has powers which are
necessary to enable it to act effectively within such
jurisdiction. … A court must enjoy such powers in
order to enforce its rules of practice and to suppress
any abuses of its process and to defeat any attempted
thwarting of its process.
***
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The power (which is inherent in a court’s jurisdiction)
to prevent abuses of its process and to control its own
procedure must in a criminal court include a power to
.
safeguard an accused person from oppression or
prejudice.”
In his separate pronouncement, Lord Delvin in the same
case observed that where particular criminal proceedings
constitute an abuse of process, the court is empowered to
refuse to allow the indictment to proceed to trial.
35. In Hui Chi-ming v. R. [(1992) 1 AC 34 : (1991) 3 WLR
495 : (1991) 3 All ER 897 (PC)], the Privy Council defined
the word “abuse of process” as something so unfair and
wrong with the prosecution that the court should not
allow a prosecutor to proceed with what is, in all other
respects, a perfectly supportable case.
36. In the leading case of R. v. Horseferry Road Magistrates’
Court, ex p Bennett [(1994) 1 AC 42 : (1993) 3 WLR 90 :
(1993) 3 All ER 138 (HL)], on the application of the abuse
of process, the court confirms that an abuse of processjustifying the stay of prosecution could arise in the
following circumstances:
(i) where it would be impossible to give the accused a
fair trial; or
(ii) where it would amount to misuse/manipulation of
the process because it offends the court’s sense of
justice and propriety to be asked to try the accused inthe circumstances of the particular case.
37. In R. v. Derby Crown Court, ex p Brooks [(1984) 80 Cr
App R 164 (DC)], Lord Chief Justice Ormrod stated:
“It may be an abuse of process if either (a) the
prosecution has manipulated or misused the process
of the court so as to deprive the defendant of a
protection provided by law or to take unfair advantage
of a technicality, or (b) on the balance of probability
the defendant has been, or will be, prejudiced in the::: Downloaded on – 26/06/2025 21:24:53 :::CIS
21
Neutral Citation No. ( 2025:HHC:19863 )preparation of conduct of his defence by delay on the
part of the prosecution which is unjustifiable.”
38. Neill, L.J. in R. v. Beckford (Anthony) [(1996) 1 Cr App R
.
94: 1995 RTR 251 (CA)], observed that:
“The jurisdiction to stay can be exercised in many
different circumstances. Nevertheless, two main
strands can be detected in the authorities: (a) caseswhere the court concludes that the defendant cannot
receive a fair trial; (b) cases where the court concludes
that it would be unfair for the defendant to be tried.”
What is unfair and wrong will be for the court to
determine on the individual facts of each case.
21. It was held in Mahmood Ali v. State of U.P., (2023) 15
SCC 488: 2023 SCC OnLine SC 950 that where the proceedings are
frivolous or vexatious, the Court owes a duty to quash them.
However, the Court cannot appreciate the material while
exercising jurisdiction under Section 482 of the CrPC. It was
observed at page 498:
13. In frivolous or vexatious proceedings, the Court owes
a duty to look into many other attending circumstances
emerging from the record of the case over and above theaverments and, if need be, with due care and
circumspection, try to read in between the lines. The
Court, while exercising its jurisdiction under Section
482CrPC or Article 226 of the Constitution, need not
restrict itself only to the stage of a case but is empowered
to take into account the overall circumstances leading to
the initiation/registration of the case as well as the
materials collected in the course of investigation. Take,
for instance, the case on hand. Multiple FIRs have been
registered over a period of time. It is in the background of
such circumstances the registration of multiple FIRs::: Downloaded on – 26/06/2025 21:24:53 :::CIS
22
Neutral Citation No. ( 2025:HHC:19863 )assumes importance, thereby attracting the issue of
wreaking vengeance out of private or personal grudge as
alleged.
.
14. State of A.P. v. Golconda Linga Swamy [State of
A.P. v. Golconda Linga Swamy, (2004) 6 SCC 522: 2004 SCC
(Cri) 1805], a two-judge Bench of this Court elaborated on
the types of materials the High Court can assess to quashan FIR. The Court drew a fine distinction between
consideration of materials that were tendered as evidence
and appreciation of such evidence. Only such material
that manifestly fails to prove the accusation in the FIRcan be considered for quashing an FIR. The Court held :
(Golconda Linga Swamy case [State of A.P. v. Golconda
Linga Swamy, (2004) 6 SCC 522: 2004 SCC (Cri) 1805], SCC
p. 527, paras 5-7)“5. … Authority of the court exists for the
advancement of justice, and if any attempt is made to
abuse that authority so as to produce injustice, the
court has the power to prevent such abuse. It would bean abuse of the process of the court to allow any action
which would result in injustice and prevent the
promotion of justice. In the exercise of the powerscourt would be justified to quash any proceeding if it
finds that initiation or continuance of it amounts toabuse of the process of the court or quashing of these
proceedings would otherwise serve the ends of justice.
When no offence is disclosed by the complaint, the
court may examine the question of fact. When a
complaint is sought to be quashed, it is permissible to look
into the materials to assess what the complainant has
alleged and whether any offence is made out, even if the
allegations are accepted in toto.
6. In R.P. Kapur v. State of Punjab [R.P. Kapur v. State of
Punjab, 1960 SCC OnLine SC 21: AIR 1960 SC 866], this
Court summarised some categories of cases where
inherent power can and should be exercised to quash
the proceedings : (SCC OnLine SC para 6)
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Neutral Citation No. ( 2025:HHC:19863 )
(i) where it manifestly appears that there is a legal
bar against the institution or continuance, e.g. want
of sanction;
.
(ii) where the allegations in the first information
report or complaint taken at its face value and
accepted in their entirety do not constitute the
offence alleged;
(iii) where the allegations constitute an offence, but
there is no legal evidence adduced or the evidence
adduced clearly or manifestly fails to prove the charge.
7. In dealing with the last category, it is important to bear
in mind the distinction between a case where there is no
legal evidence or where there is evidence which is clearly
inconsistent with the accusations made, and a case where
there is legal evidence which, on appreciation, may or
may not support the accusations. When exercising
jurisdiction under Section 482 of the Code, the High Court
would not ordinarily embark upon an enquiry whether
the evidence in question is reliable or not or whether, on a
reasonable appreciation of it, the accusation would not be
sustained. That is the function of the trial Judge. The
judicial process, no doubt, should not be an
instrument of oppression or needless harassment. The
court should be circumspect and judicious in
exercising discretion and should take all relevant facts
and circumstances into consideration before issuing
the process, lest it would be an instrument in the
hands of a private complainant to unleash vendetta to
harass any person needlessly. At the same time, the
section is not an instrument handed over to an
accused to short-circuit a prosecution and bring about
its sudden death.” (emphasis supplied)
22. The present petition is to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
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Neutral Citation No. ( 2025:HHC:19863 )
23. It was asserted in the petition that the copyright was
assigned to IJAR as per the terms and conditions of the Journal.
.
Reliance was placed upon the letter written by corresponding
author (Annexure P/13) annexed to the additional rejoinder to
the reply filed by respondent No.2/complainant, therefore, it is
apparent that Dr. Amit Lakhani had no copyright after its
assignment in favour of the Journal and his claim that he had a
subsisting copyright in the first article and he could have used
the images and the research material mentioned in the first
article cannot be accepted. A perusal of the two articles clearly
shows that some images published in the first article have been
reproduced in the second article; therefore, prima facie, the use
of the images from the first article in the second article shows
the infringement of the copyright.
24. It was submitted that the informant has no locus
standi to file the complaint. This submission is not acceptable.
It was laid down by the Hon’ble Supreme Court in A.R. Antulay v.
Ramdas Sriniwas Nayak, (1984) 2 SCC 500: 1984 SCC (Cri) 277:
1984 SCC OnLine SC 44, that anyone can set or put the criminal
law into motion except where the statute indicates to the
contrary. It was observed at page 508:
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25
Neutral Citation No. ( 2025:HHC:19863 )
“6. It is a well-recognised principle of criminal
jurisprudence that anyone can set or put the criminal law
into motion, except where the statute enacting or.
creating an offence indicates to the contrary. The scheme
of the Code of Criminal Procedure envisages two parallel
and independent agencies for taking criminal offences to
court. Even for the most serious offence of murder, it was
not disputed that a private complaint can not only be filed
but can also be entertained and proceeded with according
to law. Locus standi of the complainant is a concept
foreign to criminal jurisprudence, save and except that
where the statute creating an offence provides for the
eligibility of the complainant, by necessary implication,
the general principle gets excluded by such statutory
provision. Numerous statutory provisions, can be
referred to in support of this legal position such as (i)
Section 187-A of Sea Customs Act, 1878 (ii) Section 97 of
Gold Control Act, 1968 (iii) Section 6 of Import and
Export Control Act, 1947 (iv) Section 271 and Section 279
of the Income Tax Act, 1961 (v) Section 61 of the Foreign
Exchange Regulation Act, 1973, (vi) Section 621 of the
Companies Act, 1956 and (vii) Section 77 of the Electricity
Supply Act. This list is only illustrative and not
exhaustive. While Section 190 of the Code of Criminal
Procedure permits anyone to approach the Magistrate
with a complaint, it does not prescribe any qualification
that the complainant is required to fulfil to be eligible to
file a complaint. But where an eligibility criterion for a
complainant is contemplated, specific provisions have
been made, such as to be found in Sections 195 to 199 of
the CrPC. These specific provisions clearly indicate that in
the absence of any such statutory provision, a locus
standi of a complainant is a concept foreign to criminal
jurisprudence. In other words, the principle that anyone
can set or put the criminal law in motion remains intact
unless contra-indicated by a statutory provision. This
general principle of nearly universal application is
founded on a policy that an offence i.e. an act or omission
made punishable by any law for the time being in force
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26
Neutral Citation No. ( 2025:HHC:19863 )
[See Section 2(n) CrPC] is not merely an offence
committed in relation to the person who suffers harm but
is also an offence against society. The society, for its
.
orderly and peaceful development, is interested in the
punishment of the offender. Therefore, prosecution for
serious offences is undertaken in the name of the State,
representing the people, which would exclude any
element of private vendetta or vengeance. If such is the
public policy underlying penal statutes, who brings an act
or omission made punishable by law to the notice of the
authority competent to deal with it is immaterial and
irrelevant unless the statute indicates to the contrary.
Punishment of the offender in the interest of the society
being one of the objects behind penal statutes enacted for
larger good of the society, right to initiate proceedings
cannot be whittled down, circumscribed or fettered by
putting it into a strait-jacket formula of locus standi
unknown to criminal jurisprudence, save and except
specific statutory exception. To hold that such an
exception exists that a private complaint for offences of
corruption committed by a public servant is not
maintainable, the court would require an unambiguous
statutory provision and a tangled web of argument for
drawing a far-fetched implication, cannot be a substitute
for an express statutory provision. In the matter of
initiation of proceedings before a Special Judge under
Section 8(1), the Legislature, while conferring power to
take cognisance, had three opportunities to
unambiguously state its mind whether the cognisance
can be taken on a private complaint or not. The first one
was an opportunity to provide in Section 8(1) itself by
merely stating that the Special Judge may take
cognizance of an offence on a police report submitted to
it by an investigating officer conducting an investigation
as contemplated by Section 5-A. While providing for
investigation by designated police officers of superior
rank, the Legislature did not fetter the power of the
Special Judge to take cognisance in a manner otherwise
than on a police report. The second opportunity was
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Neutral Citation No. ( 2025:HHC:19863 )
when, by Section 8(3), a status of a deemed public
prosecutor was conferred on a private complainant if he
chooses to conduct the prosecution. The Legislature,
.
being aware of a provision like the one contained in
Section 225 of the CrPC, could have as well provided that
in every trial before a Special Judge, the prosecution shall
be conducted by a Public Prosecutor, though that itself
would not have been decisive of the matter. And the third
opportunity was when the Legislature, while prescribing
the procedure prescribed for warrant cases to be followed
by a Special Judge, did not exclude by a specific provision
that the only procedure which the Special Judge can
follow is the one prescribed for trial of warrant cases on a
police report. The disinclination of the Legislature to so
provide points to the contrary and no canon of
construction permits the court to go in search of a hidden
or implied limitation on the power of the Special Judge to
take cognizance unfettered by such requirement of its
being done on a police report alone. In our opinion, it is
no answer to this fairly well-established legal position
that for the last 32 years no case has come to the notice of
the court in which cognisance was taken by a Special
Judge on a private complaint for offences punishable
under the 1947 Act. If something that did not happen in
the past is to be the sole reliable guide so as to deny any
such thing happening in the future, the law would be
rendered static and slowly wither away.
7. The scheme underlying the Code of Criminal Procedure
clearly reveals that anyone who wants to give
information of an offence may either approach the
Magistrate or the officer in charge of a police station. If
the offence complained of is a non-cognizable one, the
police officer can either direct the complainant to
approach the Magistrate, or he may obtain permission
from the Magistrate and investigate the offence.
Similarly, anyone can approach the Magistrate with a
complaint, and even if the offence disclosed is a serious
one, the Magistrate is competent to take cognisance of
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Neutral Citation No. ( 2025:HHC:19863 )
the offence and initiate proceedings. It is open to the
Magistrate but not obligatory upon him to direct an
investigation by the police. Thus, two agencies have been
.
set up for taking offences to court. One would therefore
require a cogent and explicit provision to hold that
Section 5-A displaces this scheme.
25. This position was reiterated in Vishwa Mitter v. O.P.
Poddar, (1983) 4 SCC 701: 1984 SCC (Cri) 29: 1983 SCC OnLine SC
248, wherein it was held at page 705:-
5. It is thus crystal clear that anyone can set the criminal
law in motion by filing a complaint of facts constituting
an offence before a Magistrate entitled to take cognizanceunder Section 190 and unless any statutory provision
prescribes any special qualification or eligibility criteria
for putting the criminal law in motion, no court can
decline to take cognizance on the sole ground that the
complainant was not competent to file the complaint.
Section 190 of the Code of Criminal Procedure indicates
that the qualification of the complainant to file a
complaint is not relevant. But where any special statute
prescribes offences and makes any special provision for
taking cognisance of such offences under the statute, the
complainant requesting the Magistrate to take
cognisance of the offence must satisfy the eligibility
criterion prescribed by the statute. Even with regard to
offences under the Penal Code, 1860, ordinarily, anyone
can set the criminal law in motion but the various
provisions in Chapter XIV prescribe the qualification of
the complainant which would enable him or her to file a
complaint in respect of specified offences and no court
can take cognizance of such offence unless the
complainant satisfies the eligibility criterion, but in the
absence of any such specification, no court can throw out
the complaint or decline to take the cognizance on the
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Neutral Citation No. ( 2025:HHC:19863 )
sole ground that the complainant was not competent to
file the complaint.
6. Section 89 of the Act provides that no court shall take
.
cognisance of an offence under Section 81, Section 82 or
Section 83 except on a complaint in writing made by the
registrar or any officer authorised by him in writing. This
provision manifests the legislative intention that in
respect of the three specified offences punishable under
Sections 81, 82 and 83, the registrar alone is competent to
file the complaint. This would simultaneously show that
in respect of other offences under the Act, the provision
contained in Section 190 of the Code of Criminal
Procedure, read with sub-section (2) of Section 4, would
permit anyone to file the complaint. The indication to the
contrary, as envisaged by sub-section (2) of Section 4 of
the Code of Criminal Procedure, is to be found in Section
89, and that section does not prescribe any particular
eligibility criterion or qualification for filing a complaint
for contravention of Sections 78 and 79 of the Act.
Therefore, the learned Magistrate was in error in
rejecting the complaint on the sole ground that the
complainant was not entitled to file the complaint.
26. A similar view was taken in Manohar Lal v. Vinesh
Anand, (2001) 5 SCC 407: 2001 SCC (Cri) 1322: 2001 SCC OnLine SC
634, and it was held at page 411:-
5. Before adverting to the matter in issue and the rival
contentions advanced, one redeeming feature ought to be
noticed here pertaining to criminal jurisprudence. To
pursue an offender in the event of commission of an
offence is to subserve a social need — society cannot
afford to have a criminal escape his liability, since that
would bring about a state of social pollution, which is
neither desired nor warranted and this is irrespective of
the concept of locus — the doctrine of locus standi is
totally foreign to criminal jurisprudence. This::: Downloaded on – 26/06/2025 21:24:53 :::CIS
30
Neutral Citation No. ( 2025:HHC:19863 )observation of ours, however, obtains support from the
decision of this Court in A.R. Antulay v. Ramdas Sriniwas
Nayak [(1984) 2 SCC 500: 1984 SCC (Cri) 277].
.
27. This position was reiterated in Ratanlal v. Prahlad Jat,
(2017) 9 SCC 340: (2017) 3 SCC (Cri) 729: 2017 SCC OnLine SC
1143 and it was held at page 344:
8. In Black’s Law Dictionary, the meaning assigned to the
term “locus standi” is “the right to bring an action or tobe heard in a given forum”. One of the meanings assigned
to the term “locus standi” in The Law Lexicon of Shri P.
Ramanatha Aiyar is “a right of appearance in a Court of
justice”. The traditional view of locus standi has beenthat the person who is aggrieved or affected has the
standing before the court, that is to say, he only has a
right to move the court for seeking justice. The orthodox
rule of interpretation regarding the locus standi of a
person to reach the court has undergone a sea changewith the development of constitutional law in India, and
the constitutional courts have been adopting a liberal
approach in dealing with the cases or dislodging theclaim of a litigant merely on hypertechnical grounds. It is
now well-settled that if the person is found to be notmerely a stranger to the case, he cannot be non-suited on
the ground of his not having locus standi.
9. However, a criminal trial is conducted largely by
following the procedure laid down in the CrPC. Locus
standi of the complaint is a concept foreign to criminal
jurisprudence. Anyone can set the criminal law in motion,
except where the statute enacting or creating an offence
indicates to the contrary. This general principle is
founded on a policy that an offence, that is an act or
omission made punishable by any law for the time being
in force, is not merely an offence committed in relation to
the person who suffers harm, but is also an offence
against society. Therefore, in respect of such offences::: Downloaded on – 26/06/2025 21:24:53 :::CIS
31
Neutral Citation No. ( 2025:HHC:19863 )which are treated against society, it becomes the duty of
the State to punish the offender. In A.R. Antulay v. Ramdas
Sriniwas Nayak [A.R. Antulay v. Ramdas Sriniwas Nayak,.
(1984) 2 SCC 500: 1984 SCC (Cri) 277], a Constitution
Bench of this Court has considered this aspect as under:
(SCC pp. 508-09, para 6)
6. … In other words, the principle that anyone can
set or put the criminal law in motion remains intact
unless contra-indicated by a statutory provision. This
general principle of nearly universal application is
founded on a policy that an offence i.e. an act oromission made punishable by any law for the time
being in force [see Section 2(n) CrPC] is not merely an
offence committed in relation to the person who
suffers harm but is also an offence against society. Thesociety, for its orderly and peaceful development, is
interested in the punishment of the offender.
Therefore, prosecution for serious offences is
undertaken in the name of the State, representing the
people, which would exclude any element of private
vendetta or vengeance. If such is the public policy
underlying penal statutes, who brings an act or
omission made punishable by law to the notice of the
authority competent to deal with it is immaterial and
irrelevant unless the statute indicates to the contrary.
Punishment of the offender in the interest of the
society being one of the objects behind penal statutes
enacted for larger good of the society, right to initiate
proceedings cannot be whittled down, circumscribed
or fettered by putting it into a straitjacket formula of
locus standi unknown to criminal jurisprudence, save
and except specific statutory exception.”
10. In Manohar Lal v. Vinesh Anand [Manohar Lal v. Vinesh
Anand, (2001) 5 SCC 407: 2001 SCC (Cri) 1322], this Court
has held that the doctrine of locus standi is totally foreign
to criminal jurisprudence. To punish an offender in the
event of the commission of an offence is to subserve a
social need. Society cannot afford to have a criminal
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Neutral Citation No. ( 2025:HHC:19863 )
escape his liability since that would bring about a state of
social pollution which is neither desired nor warranted,
and this is irrespective of the concept of locus.
.
28. Therefore, the plea that only an aggrieved person
could have filed the complaint and the informant had no right
to file the complaint cannot be accepted.
29. It was submitted that the Copyright Act shows that it
is enacted to protect the rights of the copyright holders and
therefore, a third person should not be permitted to make a
complaint of the violation of the copyright. This cannot be
accepted. It was laid down by Hon’ble Supreme Court in Knit Pro
International v. State (NCT of Delhi), (2022) 10 SCC 221: (2023) 1
SCC (Cri) 143: (2023) 1 SCC (Civ) 632: 2022 SCC OnLine SC 668,
that the offence punishable under Section 63 of the Copyright
Act is a cognizable offence. It was observed at page 223:
“8. The short question which is posed for consideration
before this Court is whether the offence under Section 63
of the Copyright Act is a cognizable offence as considered
by the trial court or a non-cognizable offence as observed
and held by the High Court.
9. While answering the aforesaid question, Section 63 of
the Copyright Act and Part II of the First Schedule to CrPC
are required to be referred to, and the same are as under:
“63. Offence of infringement of copyright or other
rights conferred by this Act.–Any person who
knowingly infringes or abets the infringement of–
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Neutral Citation No. ( 2025:HHC:19863 )
(a) the copyright in a work, or
(b) any other right conferred by this Act except
the right conferred by Section 53-A,.
shall be punishable with imprisonment for a term
which shall not be less than six months but which may
extend to three years and with a fine which shall not
be less than fifty thousand rupees but which may
extend to two lakh rupees:
Provided that where the infringement has not been
made for gain in the course of trade or business, thecourt may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of
imprisonment for a term of less than six months or a
fine of less than fifty thousand rupees.
Explanation.–Construction of a building or other
structure which infringes or which, if completed,
would infringe the copyright in some other work shall
not be an offence under this section.”
Criminal Procedure Code, 1973 — Schedule I Part II:
“II. CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS
Offence Cognizable or Bailable or By what
non-cognizable non- court triablecognizable
If punishable with Cognizable. Non- Court of
death, imprisonment bailable. Session.
for life, or
imprisonment for
more than 7 years.
If punishable with Cognizable. Non- Magistrate
imprisonment for 3 bailable. of the First
years and upwards, Class.
but not more than 7
years.
If punishable with Non- Bailable. Any
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Neutral Citation No. ( 2025:HHC:19863 )
imprisonment for less cognizable. Magistrate.
than 3 years or with a
fine only.
.
10. Thus, for the offence under Section 63 of the
Copyright Act, the punishment provided is imprisonment
for a term which shall not be less than six months butwhich may extend to three years and with a fine.
Therefore, the maximum punishment which can be
imposed would be three years. Therefore, the learned
Magistrate may sentence the accused for a period of threeyears also. In that view of the matter, considering Part II
of the First Schedule to CrPC, if the offence is punishable
with imprisonment for three years and onwards but not
more than seven years, the offence is a cognizableoffence. Only in a case where the offence is punishable for
imprisonment for less than three years or with a fine
only, the offence can be said to be non-cognizable. In
view of the above clear position of law, the decision
in Rakesh Kumar Paul [Rakesh Kumar Paul v. State ofAssam, (2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] relied
upon by the learned counsel appearing on behalf of
Respondent 2 shall not be applicable to the facts of thecase on hand. The language of the provision in Part II of
the First Schedule is very clear, and there is no ambiguitywhatsoever.
30. Therefore, the police can take cognisance of the
violation of the copyright, and since any person can make a
complaint of the violation, therefore, the plea regarding the
lack of locus standi cannot be accepted in the present case.
31. It was submitted that mere reproduction of some of
the photographs does not amount to the infringement of the
copyright. This cannot be accepted. It was laid down by the
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Neutral Citation No. ( 2025:HHC:19863 )
Hon’ble Supreme Court in R.G. Anand v. Delux Films, (1978) 4 SCC
118: 1978 SCC OnLine SC 195 that the infringement does not
.
consist of an exact or verbatim copy of the whole but merely a
resemblance to a greater or lesser degree. It was observed at
page 140:
“46. Thus, on careful consideration and elucidation of
the various authorities and the case law on the subjectdiscussed above, the following propositions emerge:
1. There can be no copyright in an idea, subject-
matter, themes, plots or historical or legendary facts
and violation of the copyright in such cases is confined
to the form, manner and arrangement and expression
of the idea by the author of the copyrighted work.
2. Where the same idea is being developed in a
different manner, it is manifest that the source being
common, similarities are bound to occur. In such a
case, the courts should determine whether or not the
similarities are on fundamental or substantial aspects
of the mode of expression adopted in the copyrighted
work. If the defendant’s work is nothing but a literal
imitation of the copyrighted work with some
variations here and there, it would amount to a
violation of the copyright. In other words, to be
actionable, the copy must be a substantial and
material one which at once leads to the conclusion
that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine
whether or not there has been a violation of copyright
is to see if the reader, spectator or the viewer after
having read or seen both the works is clearly of the
opinion and gets an unmistakable impression that the
subsequent work appears to be a copy of the original.
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Neutral Citation No. ( 2025:HHC:19863 )
4. Where the theme is the same but is presented
and treated differently so that the subsequent work
becomes a completely new work, no question of
.
violation of copyright arises.
5. Where however, apart from the similarities
appearing in the two works, there are also material
and broad dissimilarities which negate the intention
to copy the original, and the coincidences appearing in
the two works are clearly incidental; no infringement
of the copyright comes into existence.
6. As a violation of copyright amounts to an act of
piracy, it must be proved by clear and cogent evidence
after applying the various tests laid down by the case-
law discussed above.
r7. Where, however, the question is of the violation
of the copyright of a stage play by a film producer or a
director, the task of the plaintiff becomes more
difficult to prove piracy. It is manifest that, unlike a
stage play, a film has a much broader perspective,
wider field and a bigger background where the
defendants can, by introducing a variety of incidents,
give a colour and complexion different from the
manner in which the copyrighted work has expressed
the idea. Even so, if the viewer, after seeing the film,
gets the total impression that the film is by and large a
copy of the original play, violation of the copyright
may be said to be proved.”
32. Similarly, it was held in Fateh Singh Mehta v. O.P.
Singhal, 1989 SCC OnLine Raj 9: (1989) 1 RLW 409: AIR 1990 Raj 8 :
(1989) 1 RLR 419 that the reproduction of a substantial part or
any material will constitute the infringement of the copyright.
It was observed at page 413:-
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8. Section 17 of the Act provides that, subject to the
provisions of the Act, the author of a work shall be the
first owner of the copyright therein. The copyright.
subsists within the lifetime of the author and until 50
years from the beginning of the calendar year next
following the year in which the author dies. Copyright in
a work is deemed to be infringed when any person,
without a licence granted by the owner of the copyright,
does anything, the exclusive right to do which is by the
Act conferred upon the owner of the copyright. Where a
person has copyright in a literary work, and any other
person produces or reproduces the work or any
substantial part thereof in any material form, he is
committing an infringement of copyright.
33. It was held in State of A.P. v. Nagoti Venkataramana,
(1996) 6 SCC 409that the identification of the owner of a
copyright is not a precondition for the violation of Section 63
and 68A as the case may be. It was observed at page 413:
“8. A reading of these provisions does indicate that
infringement of a copyright or deemed infringement of a
copyright or publication of a work without thepermission of the owner are offences under the Act. The
question is whether identification of the owner of thecopyright is a precondition for violation of the provisions
of Section 63 or 68-A, as the case may be? The finding of
the High Court and ably sought to be supported by Shri
Prakash Reddy is that unless the owner is identified and
he comes and gives evidence that he had a copyright of
the video film which was sought to be in violation of
Section 52-A or Section 51 of the Act, there is no offence
made out by the prosecution and that, therefore, the
conviction and sentence of the respondent is not valid in
law. He contends that Section 4 expressly excludes
publication of the work to be published. The
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Neutral Citation No. ( 2025:HHC:19863 )prove the offence of infringement of copyright, the
prosecution has failed to establish the same. In the
construction of the penal statute, strict construction.
should be adopted, and in that perspective, the benefit of
doubt given by the High Court is well justified and does
not warrant interference.
9. It is true that in the interpretation of penal provisions,
strict construction is required to be adopted, and if any
real doubt arises, necessarily the reasonable benefit of
doubt would be extended to the accused. In this case, the
question arises whether such a doubt has arisen. Theobject of amending the Copyright Act by the Amendment
Act 65 of 1984, as noted above, was to prevent piracy,
which became a global problem due to rapid advances in
technology. The legislature intended to prevent piracyand punish pirates protecting copyrights. The law,
therefore, came to be amended, introducing Section 52-
A. Thereafter, the piracy of cinematograph films and of
sound recording, etc., could be satisfactorily prevented.
Moreover, the object of the pirate is to make quick moneyand avoid payment of legitimate taxes and royalties. The
uncertified films are being exhibited on a large scale.
Mushrooming growth of video parlours has sprung up allover the country, exhibiting such films recorded on video
tapes by charging an admission fee from the visitors.
Therefore, apart from increasing the penalty of
punishment under law, it also provides a declaration onthe offence of infringement and video films to display
certain information on the recorded video films and
containers thereof. Section 52-A thus has incorporated
specifications of the prints in sub-section (2) thereof.
The construction of Sections 52-A, 51, 63 and 68-A
should be approached from this perspective. It would be
further profitable to read the relevant provisions of the
Cinematograph Act, 1952, in this regard. Section 2(c)
defines ‘cinematograph’ to include any apparatus for the
representation of moving pictures or a series of pictures.
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Neutral Citation No. ( 2025:HHC:19863 )film. The question, therefore, is whether video film is a
cinematograph? It is settled view that video tapes come
within the expression ‘cinematograph’ in view of the.
extended definition in Section 2(c) which includes
apparatus for the representation of moving pictures or
series of pictures as copy of the video should be created in
respect of a cinematograph under the Cinematograph Actwhich gives protection to the purchasers of the
cinematograph if they are registered under Chapter X of
the Act. Section 44 gives the right of registration and
once the entries have been made by operation of Section48 the entries in the register of copyrights shall be prima
facie evidence of the copyright and the entries therein are
conclusive without proof of the original copyright which
must be taken to have been created in respect of the video
tape.
10. In Balwinder Singh v. Delhi Admn. [AIR 1984 Del 379:
1984 Rajdh LR 302] A Division Bench of the Delhi High
Court had also held that both video and television are
cinematographs. Licences for giving their publicexhibition are necessary under the Cinematograph Act in
spite of their having commercial licences under the
Telegraph Act, 1885.
11. It is true that there is no specific charge under Section
52-A. The charge was under Section 51, read with Section
63 of the Act. In view of the above finding and in view of
the findings of the courts below that the respondent wasexhibiting the cinematograph films in his Video City for
hire or for sale of the cassettes to the public which do not
contain the particulars envisaged under Section 52-A of
the Act, the infringement falls under Section 51(2)(ii) or
Section 52-A of the Act. The former is punishable under
Section 63, and the latter is punishable under Section 68-
A of the Act. In view of the findings of the courts below,
the offence would fall under Section 68-A of the Act. It
would, therefore, be unnecessary for the prosecution to
track on and trace out the owner of the copyright to come
and adduce evidence of infringement of copyright. The
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absence thereof does not constitute a lack of an essential
element of infringement of copyright. If the particulars
on video films, etc., as mandated under Section 52-A do
.
not find place, it would be an infringement of copyright.”
34. It was submitted that the copyright is not registered,
and even if it were registered, the remedy lies to approach
before the Registrar of Copyrights. This submission is not
acceptable. It was laid down in Fr. K.O. Thomas v. State of Kerala,
2017 SCC OnLine Ker 237, that the registration of the copyright is
not mandatory. A person does not become an owner of the
copyright because of the registration, but because he had
produced some original work. It was observed:
“15. As said already, registration is not mandatory. It is
only optional. The registration may give the proprietor of
the copyright some benefit. He becomes the proprietor ofthe copyright not because of the registration. Only a
person having the copyright in a work is entitled to get itregistered in their name. The registrar of copyrights
should be satisfied with the inquiry held by him that the
person applying for registration has the copyright in theparticular work. It is not the registration which confers
title to the copyright in a work. Therefore, the petitioner
cannot be heard to say that he cannot be prosecuted as
the copyright is not registered in the name of the
3rd respondent. Thus, looking at it from any angle,
registration of copyright is not necessary to initiate and
proceed with a prosecution under section 63. No
provision in the Copyright Act is in aid of the contention
of the petitioner that he cannot be prosecuted without
registration of the copyright.”
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Neutral Citation No. ( 2025:HHC:19863 )
35. Therefore, the submission that the complaint is not
maintainable in the absence of registration is not acceptable.
.
36. It was submitted that civil remedies are available for
the infringement of copyright. A complaint can be made to the
Indian Council of Medical Research (ICMR), and the filing of the
complaint with the police is not justified in the present case.
This submission is only stated to be rejected. Merely because
the alternative remedy is available will not take away the
applicability of the criminal law. The infringement of the
copyright can give rise to a civil remedy and a criminal remedy,
and there is no bar to pursuing the two remedies. It was laid
down by the Hon’ble Supreme Court in Trisuns Chemical
Industry v. Rajesh Agarwal, (1999) 8 SCC 686: 2000 SCC (Cri) 47
that the availability of the remedy of arbitration is no ground to
quash the criminal proceedings. It was observed at page 690:
“9. We are unable to appreciate the reasoning that the
provision incorporated in the agreement for referring the
disputes to arbitration is an effective substitute for a
criminal prosecution when the disputed act is an offence.
Arbitration is a remedy for affording relief to the party
affected by a breach of the agreement, but the arbitrator
cannot conduct a trial of any act which amounted to an
offence, albeit the same act may be connected with the
discharge of any function under the agreement. Hence,
those are not good reasons for the High Court to axe::: Downloaded on – 26/06/2025 21:24:53 :::CIS
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Neutral Citation No. ( 2025:HHC:19863 )down the complaint at the threshold itself. The
investigating agency should have had the freedom to go
into the whole gamut of the allegations and to reach a.
conclusion of its own. Pre-emption of such investigation
would be justified only in very extreme cases as indicated
in State of Haryana v. Bhajan Lal [State of
Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335: 1992 SCC(Cri) 426].”
37. Hence, the availability of the alternative remedy will
not help the petitioner.
38.
It was submitted that the Court cannot look into the
documents annexed to the petition. There is no dispute with
this proposition of law, and this Court has already held in
Saurabh Bhardwaj (supra) that only the documents filed with
the complaint or charge sheet can be looked into while deciding
the petition.
39. The State has filed a reply asserting that the
investigation is being conducted in the present matter.
Therefore, it is premature to quash the FIR. It was held in Minu
Kumari v. State of Bihar, (2006) 4 SCC 359: (2006) 2 SCC (Cri) 310:
2006 SCC OnLine SC 417 that the High Court should refrain from
giving a prima facie opinion when the facts are hazy and the
evidence has not been collected. It was observed at page 366:
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“20. As noted above, the powers possessed by the High
Court under Section 482 of the Code are very wide, and
the very plenitude of the power requires great caution in.
its exercise. The court must be careful to see that its
decision in the exercise of this power is based on sound
principles. The inherent power should not be exercised to
stifle a legitimate prosecution. The High Court being the
highest court of a State should normally refrain from
giving a prima facie decision in a case where the entire
facts are incomplete and hazy, more so when the
evidence has not been collected and produced before the
Court and the issues involved, whether factual or legal,
are of magnitude and cannot be seen in their true
perspective without sufficient material. Of course, no
hard-and-fast rule can be laid down in regard to cases in
which the High Court will exercise its extraordinary
jurisdiction of quashing the proceeding at any stage.
[See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305: 1993
SCC (Cri) 36] and Raghubir Saran (Dr.) v. State of
Bihar [(1964) 2 SCR 336: AIR 1964 SC 1: (1964) 1 Cri LJ 1].]
40. In the present case, the allegations in the FIR make
out a prima facie cognizable offence, and the FIR cannot be
quashed.
41. It was submitted that the FIR was lodged with a mala
fide intention. There is a dispute between the informant and her
husband-Amit Lakhani, and the petitioner has been made a
scapegoat. This submission will not help the petitioner. It was
laid down by the Hon’ble Supreme Court in Ramveer Upadhyay v.
State of U.P., 2022 SCC OnLine SC 484, that a complaint cannot be
quashed because it was initiated due to enmity. It was observed:
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Neutral Citation No. ( 2025:HHC:19863 )
“30. The fact that the complaint may have been initiated
because of a political vendetta is not in itself grounds for
quashing the criminal proceedings, as observed by.
Bhagwati, CJ in Sheonandan Paswan v. State of Bihar
(1987) 1 SCC 2884. It is a well-established proposition of
law that a criminal prosecution, if otherwise justified and
based upon adequate evidence, does not become vitiated
on account of mala fides or political vendetta of the first
informant or complainant. Though the view of Bhagwati,
CJ in Sheonandan Paswan (supra) was the minority view,
there was no difference of opinion with regard to this
finding. To quote Krishna Iyer, J., in State of Punjab v.
Gurdial Singh (1980) 2 SCC 471, “If the use of power is for
the fulfilment of a legitimate object, the actuation or
catalysation by malice is not legicidal.”
Xxxx
39. In our considered opinion, criminal proceedings
cannot be nipped in the bud by the exercise of
jurisdiction under Section 482 of the Cr.P.C. only
because the complaint has been lodged by a political
rival. It is possible that a false complaint may have been
lodged at the behest of a political opponent. However,
such a possibility would not justify interference under
Section 482 of the Cr.P.C. to quash the criminal
proceedings. As observed above, the possibility of
retaliation on the part of the petitioners by the acts
alleged, after the closure of the earlier criminal case,
cannot be ruled out. The allegations in the complaint
constitute an offence under the Atrocities Act. Whether
the allegations are true or untrue would have to be
decided in the trial. In the exercise of power under
Section 482 of the Cr.P.C., the Court does not examine
the correctness of the allegations in a complaint except
in exceptionally rare cases where it is patently clear that
the allegations are frivolous or do not disclose any
offence. The Complaint Case No. 19/2018 is not such a
case which should be quashed at the inception itself
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Neutral Citation No. ( 2025:HHC:19863 )
without further Trial. The High Court rightly dismissed
the application under Section 482 of the Cr.P.C.”
42. Therefore, it is impermissible to quash the FIR on the
.
ground of mala fide.
43. In view of the above, the present petition fails and
the same is dismissed.
44. The observations made herein before shall remain
confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
(Rakesh Kainthla)
26 June 2025
th
Judge
(saurav pathania)
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