M.H. Beg, J.
1. The appellant Sheo Ratan Upadhya filed a complaint against the respondents, Gopal Chandra Nepali, Manager Sarvahitalshi Company, a publishing house of Varanasi, and Mahadeo Prasad, the proprietor of Deepak Press of Varanasi, for an alleged infringement of the copyright of a work called 'Shri Mahabharat' in Nepali language which was written by the complainant's father, Pandit Narendra Nath Upadhya. The book was first published in 1929 through the Sarvahitalshi Company during tne life time of its author who died on 19th June 1950, The complainant, the eldest son of his father, does not seem to possess personal knowledge about the publication or sale of the book and states in his complaint that he was busy with his studies until recently when he took up the management of the affairs of the family. The complainant alleges that his father had told him that he had never sold the copyright of the abovementloned work, which is mere hearsay and an admission in his own favour.
2. The complaint was filed on 31-10-1961, ele-ven years after the death of author, on the allegation that the complainant had gone to the market and found a number of copies of a work entitled 'Mahabharat (Sampuran)' alleged to have been written by Krishna Prasad Regml, who has not been prosecuted, and published by Sarvahitatshi Company, which had published the previous two editions under the name of the real author. It is alleged that the change of the name of the author and a very significant omission made of the two stanzas at the end of the book, where the name of the original author and his family history were given, the substitution of a 'Vana Parva' (Chapter III) written by Regmi instead of the original 'Vana Parva,' and the oversight in failing to delete the prayer in 'Adi Parva' (Chapter I) addressed to the 'Panchdevas' where the names of the original author and his brother are mentioned as persons offering the prayer, proved that the publishers and the printers Knew very well that there was a copyright in the original work. It was alleged that the original work was distorted, mutilated, and modified with an ulterior object. It is alleged that the rest of the abovementioned work with an alleged author, Krishna Prasad Regmi, was identical with the original work or Pandit Narendra Nath Upadhya. On these facts, the complainant appellant alleged that the respondents were liable to be punished for offences under Section 63 of the Copyright Act, 1957.
3. The learned City Magistrate of Varanasi, who tried the case, came to the conclusion that the original work was published in the form alleged in the complaint, but he entertained some doubt on the question whether the accused persons had the necessary knowledge to constitute the mens rea which is required for the commission of an offence under Section 63 of Copyright Act. The learned Magistrate pointed out that the respondent accused Gopal Chandra is the adopted son of the original publisher Ragho Prasad, who died in 1938 when Gopal Chandra was only six years of age. After the death of Ragho Prasad, his widow, Srimati Moti Devi, carried on the publishing business until her death in 1949 when Gopal Chandra became the owner of the publishing house, at the age of about 17 years. In accordance with the will of the mother. The learned Magistrate was impressed by the explanation given by Gopal Chandra in the written statement filed toy him, in which he stated that his mother had told him that the rights of publishing this book had vested in Sarvahitalshi company and that the second edition of the book was published in 1948 under her orders as owner of the Copyright, and also that Mahabir Singh (D. W. 1) an old manager of this publishing house, had told him that the author, Pandit Narendra Upadhya, had sold his Copyright in the book for Rs. 600/- to Sarvahitaishi Company, The communication made by Mahabir Singh to Gopal Chandra was proved by the evidence of Mahabir Singh (D. W. 1) himself supported by an entry in the rokar bahl of the publishing house, dated 31-12-34, showing that Rs. 600/- were paid as writing charges of 'Mana-bharat' to Narendra Nath together with another entry of the same date showing purchase of 150 copies of 'Mahabharat' for Rs. 300/- from Narendra Nath. This could be interpreted as evidence of an agreement of sale of the copyright to the publishing house together with the sale of the stock of copies in the possession or under the control of Narendra Nath. The learned Magistrate also pointed out that the 1948 edition of the book did not contain any statement that the copyright of the author was preserved. The learned Magistrate also noticed the argument that any interest in the copyright could only be granted by a licence signed by the owner of tne copyright or its duly authorised agent as required by Section 30 of the Copyright act. Nevertheless, the learned Magistrate thought that, in the circumstances of the case, the mere absence of a licence could not discredit the version of the accused which the learned Magistrate accepted.
4. In this appeal, by special leave, it has been urged rather vehemently by C. S. Saran; firstly, that an offence under Section 63 of the Copyright act is committed by the mere publication and printing which constitutes violation of the copyright without need of proving anything more; and, secondly, that on the admitted and proved facts or the case, it is amply established that the respondent 'knowingly' infringed the copyright in the work and also the right to keep the work free from distortion, mutilation, or other modification. in other words, the first argument was that the ingredients of mens rea required by Section 63 of the Copyright Act are satisfied if a person knowingly publishes or prints a work in which another has A copyright, and the second argument was that, upon the facts of the case, violations of both Section 63(a) and Section 63(b) had been established.
4a. Section 63 runs as follows :
'Any person who knowingly infringes or abets the infringement of-
(a) the copyright in a work, or
(b) any other right conferred by this Act, shall be punishable with imprisonment which may extend to one year, or with fine, or with both.'
It will be noticed that the words are 'knowingly infringes.... the copyright in a work' and not 'knowingly publishes or prints a work in which there is a copyright.' The result of accepting the argument put forward on behalf of tho appellant would be, in my opinion, to modify the language of Section 63 which is not possible for any Court of law to do. 'Knowingly infringes' the copyright has to be distinguished from knowingly publishing or printing of a work in which there is a copyright. The term publication has been defined in Section 3 of the Copyright Act and the term 'Copyright' has been defined in Section 14 of the Copyright Act quite com-prehensively. In the case of publication, the defini-tion denotes certain activities whereas the term 'Copyright' connotes certain Kinds of exclusive right to do certain acts. It was argued, rather ingenious-ly, that the definition of the term 'Copyright' must be deemed to have been known to every one since no one can plead ignorance of law, and, therefore, knowing infringement of a copyright really boils town to a knowing reproduction of a work which amounts to publication as defined by Section 3 of the Copyright Act. The argument is that the words 'knowingly infringes' may be divided into two parts: KNOWledge of tne legal requirements of a copyright, which must be presumed on the part of every person dealing with a work in which there is a copyright, and a publication of the work in which there is a copyright. Such an argument, if accepted, would result in casting upon an accused person, in every case in which the initial existence of copyrights of the complainant is not established, to prove that he did not possess tne copyright. This MEANS that a person who publishes or prints a work in which there is or may be a copyright does so at his own peril and risk. He must first ascertain the exact legal position about the existence of the copyright and his right to publish, or else he automatically commits an offence under Section 63 of the Copyright act by mere publication or printing. This view would exclude the existence of a bona fide belief or mistake of fact as to sufficient defence to a prosecution under Section 63 of the Copyright act.
5. In my opinion, the fundamental principle 'ignorantia juris neminem excusat' (ignorance or law is no excuse) cannot be converted into a pre-sumption that every one must ascertain the facts of a case which give rise to a right under the law. The question whether a copyright exists or not depends primarily upon the facts of a case. It is after the facts have been correctly ascertained that me law can be applied so as to determine whether be right exists. A person may very well be mis-taken about facts so that he entertains a bona fide better that a legal right exists whereas, in actuality, it does not exist. He may have known the cor-rect position if he had acted as a Court of law would act when a question of disputed right, upon the basis of contested facts, is raised before it. I am not aware of any legal principle which requires an accused person to show that he had sat in judg-ment over all the facts together with the law ap-plicable like a Court of law before he can successfully put forward a plea of bona fide mistake of fact resulting in a bona tide belief about the existence be a right. In my opinion, it is purely a question of fact whether, upon facts proved, the accused person could and did entertain a bona fide belief in the existence of a copyright and the proof of such a belief ts a sufficient answer to a case in which the law requires proof of knowlege of an infringement as a necessary ingredient of an offence.
6. No case of any Court in this country has been CITED before me. But V. B. Upadhya, appear-ing for the respondents, has done commendable research and has relied upon Dr. Giarvlie Williams discussion in his 'Criminal law' the General part, 2nd Ed. 1961, at pages 168-170) where it was pointed out that
'a person who is mistaken as to constituent of the actus reus must generally be acquitted because such mistake negatives mens rea, in R. V. Sleep, (1861) 169 ER 1296 where knowledge was an ingredient of an offence of being in possession of naval stores marked with a broad arrow it was held that reasonable means of knowing were not enough'
and knowledge of the mark had to be proved. Cockburn C. J. said.
'It is a principle of our law that to constitute an offence there must be a guilty mind; and that principle must be imported into the statute.'
Dr. Williams wrote:
'For legal purposes, at any rate, to confine the word knowledge to cases of rigorous scientific proot or even to cases where reasonable steps have been taken to verify the belief, would be to unduly restrict it.'
One of the cases cited on behalf of the respondents is Gaumont British Distributors Ltd. v. Henry, (1939) 2 KB 711, where the appellant had been prosecuted tor an offence under the Dramatic and Musical Performers Protection Act, 1925, which was defined as follows:
'If any person knowingly:
(a) makes any record, directly or indirectly from or by moans of performance or dramatic or musical work without the consent in writing of the performer shall be guilty of an offence under this Act.' Lord Hewart C. J. and Homphreys, J. held that the knowledge on the part of the accused which the prosecution had to prove was not only of the fact of recording but also of the absence of consent tn writing or the performer. This decision was based upon the fact that the word 'knowingly' occurred at tne beginning of the definition of the offence. It has, however, been held in Brooks v. Mason, (1902) 2 KB 743 that the word 'Knowingly' cannot govern what is an exception to tho statutory liability. This was a case in which intoxicating liquor had been sold to a child below 14 years under the honest belief that he was over 14. But, in Groom v. Grimes, (1903) 89 LT 129, it was held that the offence of knowingly selling intoxicant to a person under 14 is not committed if the bar man believes the child to be over 14. Dr. Williams, in the above-mentioned work, has discussed this and other cases on the import of 'knowingly' and has pointed out that the word 'knowledge' applies to all the elements of actus reus and hag expressed the opinion that (1902) 2 KB 743 was wrongly decided.
7. V. R. Upadhya also adopted the argument of Prof. J. C. Smity in an article on 'The Guilty Mind in the Criminal Law' which appeared in No. 76 (1960 Law Quarterly Review p. 79) where it was pointed out that the use of the word 'knowingly' in the definition of an offence results in requiring 'mens rea in the full sense.' Indeed, even where a section of a statute created two offences and used the word 'knowingly' in respect of the one and not of the other, it was held, in Sherras v. De Rutzen, (1895) 1 KB 918, that, nevertheless, mens rea was required for both offences. In R. v. Tolson, (1889) 23 QBD 168, also the plea of bona fide belief prevailed.
8. So far as an offence under Section 63(b) is concerned it is evident that the requirement of 'knowing infringement' governs this part of the section also. In other words, the accused must be shown to have 'knowingly' violated any right conferred by the Act. it is argued that Section 57(1)(a) of the Act, which enables an author to restrain another and to claim damages, creates rights against another who distorts, mutilates, or otherwise modifies the work. It is argued that the element of knowledge is patent from the very fact and nature of distortion and mutilation proved in this case which included substituting the name of 'Krishna Prasad Regmi' for the name of the original author. It is pointed out that the right conferred by Section 57(1), although headed as 'Authors' special Rights' could be exercised by the legal representatives of the author except the right to claim authorship of the work. On the other hand, it has been argued, on behalf of the respondents, that Section 57 appears in Ch. XII which is confined to civil remedies. It is pointed cut that the right given by Section 57 is a remedial right and riot a substantive right. It is argued that the remedial right to restrain the respondent or to claim damages from them has not been violated by any act of the respondent. I do not think that this answer is adequate.
It is often difficult to draw a sharp distinction between a remedial right and a substantive right.
It is true that nodody has stopped the complainant from claiming damages or from bringing a suit for injunction. These rights not only presuppose other rights but the section appears to create certain special rights. Here again, I am afraid the greatest hurdle in the way of the complainant is that he has to prove 'a knowing infringement' on the part of respondents but after examining the facts of the case, I am not satisfied that the respondents did not entertain a bona fide belief that the publication was justified. The use of the words 'knowingly infringes' certainly places a difficult burden upon the prosecution in a case under Section 63 of the Copyright Act. Tins burden can be discharged by direct and circumstantial evidence. Unfortunately, in this case the evidence is not enough. There is no evidence that the respondents themselves directed any distortion or mutilation or modification to take place, it appears that somebody called 'Krishna Prasad Regmi' made the alterations and he is not even an accused person. It is true that the respondent had admitted that the work had heen published with alterations, but the question put to him about the alleged alteration under Section 342, Crl. P. C. was so long and complicated that the affirmative answer could hardly prove the knowledge that the respondent had no right.
The respondent No. 1, from his answers under Section 342, Cri. P. C. and his written statement, appears to be a fairly honest and upright person. He has made all the admissions which could fairly be made. But, he has asserted certain facts on the basis of which he entertains a bona fide belief that ho had right to do all that he did. There is no finding that tne assertion by the respondent publishar is dishonest or that his actions were reckless. Even if this were a case in which there could bo a reasonable doubt whether the plea of the respondents was bona fide or not, the benetit of such a doubt must be given to the respondents. Upon such a matter, due reference must be shown to the view taken by the trial Court which had the advantage of seeing the accused make their statements and witnesses depose. The circumstances of the case certainly show that the respondent No. 1 deliberately allowed the alterations and modifications of the work. But, that does not suffice in proving that he Knew that he had no right to permit such change or modification. The respondent No. 1 succeeded in satisfying the trial Court that be had sufficient grounds for a bona fide belief that he had a right to do whatever he did. If the law places upon the prosecution the duty of proving that the accused possessed the knowledge of the existence of a right, it necessarily obliges the prosecution to prove that the accused also knew the required law which gives a right. There is no room for arguing that the ignorance of law is no excuse when the law itself compels the prosecutor to prove the knowledge of some law also on the part of the accused. The appellant has got adequate means of obtaining relief from a civil Court in order to safeguard and enforce his rights.
9. In the result, I dismiss this appeal and affirm the findings of the order of the learned special Magistrate of Varanasi.