1. This is an application for revision against an order of acquittal of two accused Sheo Oharan Lal and Sri Pershad his brother. There was some difficulty in the service of notice on one accused, but eventually notice was served on Sheo Oharan Lal personally on 8th January 1931 and the summons bears an endorsement to that effect by him. Sri Pershad his brother has been represented by learned Counsel in this Court and the facts of the case have been fully laid before me. The complainant Durga Prasad son of Bholanath brought a complaint in the Oourt of a Magistrate in regard to infringement of copyright by the two accused by their publication in the year 1920 of a book Ex. Order The printing and publication, of this book is admitted by the ascusedj but they stated that it was composed by one Mulu Singh from whom the accused had received a manuscript copy. This book Ex. C is Lakhan's gauna and it is admittedly a portion of a book Ex. A published by the complainant in 1910 and registered by him in June 1910 as shown by the certificate Ex. B granted under the Registration of Books Act (Act XXV of 1867) to the complainant has shown also Ex. D a book published by him in July 1926 which is also the story of Lakhan's gauna and he states that in 1920 he had got an earlier edition of this book Lakhan's gauna printed by the printing press of the aocused and his suggestion is that the accused having obtained his book for printing purpose improperly kept the book and reproduced it as their own book. There appears to be no doubt whatever that the accused did reproduce the book of the complainant B at the defence on which the accused have relied is that the book of the complainant had no longer copyright when the accused reproduced it in 1920. For this defence the accused rely pn the argument of the learned Counsel that it was for the complainant to show that, the story of Lakhan's gauna was not contained in an earlier work published by his father Bholanath. It is admitted by the complainant that his father Bholanath composed the whole book Alkhand and that Lakhan's gauna is also a composition of his father. The learned Counsel for the accused relies on a passage, in cross-examination of the complainant which is aa follows: 'He (my father) wrote one more Alkhand before this. It was also published and had 34 battles, whereas this has 36 battles. I am not sure but it was published 10'5 years before his death. I don't know if it was registered. I have no copy of it and cannot produce any.' Now it will be noted that in regard to the work which the complainant admits was published by his father there is no admission that Lakhan's gauna formed part of that work. On the contrary the complainant has stated in evidence, 'I got Lakhan's gauna published in 1903 for the first time. It was not registered then. It was published again in 1910.' Now the defence have argued that the onus lay on the complainant to show that Lakhan's gauna did not form part of the book published by his father. His father died in 1898. That is admitted by the complainant and if his father published Lakhan's gauna then the copyright would only have lasted for seven years from the time of his death that is until 1905, unless the prosecution was able to show that the period from the first publication of Lakhan's gauna by the father of the complainant upto the year 1914 when the law its to copyright was altered by Act III of 1914 was not more than 42 years that ie, publication after 1872, But in my opinion the argument for the defence is unsound. As the complainant has produced his certificate of registration of copyright in 1910 and as he has produced the bcok which he published in 1910, Section 113 of the Indian Evidence Act would place the burden on the defence to show that Lakhan's gauna contained in the book of 1910 was also contained in a previous book published by the father of the complainant. Section 103 states, 'The burden of proof as to any particular fact lies on the person who wished the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. The complainant has given his own evidence to show that the book published by his father, was not the same as the book published in 1910 and he has stated that no copy of the book published by his father is available. Under these circumstances I consider that the burden of proof lies on the defence to show what they wish the Court to believe, that is that L3 khan's gauna was published, by the father of the complainant.
2. As regards the law laid down by the Magistrate who acquitted the accused of the charge under Section 7 of the Indian Copyright Act (Act III of 1914) the following passage from the judgment of the Magistrate is relevant, 'When the copyright conferred by Section 1 of Act XX of 1847 lasted only for 47 years it cannot be said that it subsisted when the accused published the book and that 47 years had not expired from the date of its first publication by Bholanath.... I do not think that any case under the Copyright Act has been made out against the accused and I acquit them on this count.' The Magistrate proceeded to convict the accused under Section 427, Indian Penal Code, and that conviction and sentence was set aside by the Sessions Judge in appeal, as the offence would not lie under Section 427, Indian Penal Code. The Sessions Judge also considered the question of copyright, but it appears to me that both the lower Courts were wrong in restricting their consideration of copyright to Act XX of 1847. Act III of 1914, Section 24 states that a new copyright under that Act is substituted for the old copyright provided of course that copyright is in existence at the time in which that Act came into force. That copyright is shown by Section 3 of the Copyright Act of lull which states, 'the term for which copyright subsists shall except as otherwise expressly prdvMed by this Act, be the life of the author and a period of 50 years after his death. If, therefore, copyright subsisted when Act III of 1914 came into force, the period of a copyright substituted by that Act would be 50 years from the death of the author, the father of the complainant which admittedly was in 1898. The question, therefore, which has to be examined is not whether in 1920 copyright was subsisting under Act XX of 1847, but whether the copyright under that Act was subsisting when Act III of 1914 came into force. In my opinion the lower Courts have not approached the law on this question correctly both from the point of view of burden of proof and from the point of view of the law prescribing copyright. I consider, therefore, that the case is one in which a retrial should be ordered.
3. It was argaed that there had been a complaint of 5th July 1929 by the same complainant against the same accused under Section 7 of the Copyright Act and other sections, and that the complainant had been terminated by an order of the Magistrate under Section 7, Criminal Procedure Code, which under that section amounted to an acquittal. This order is dated 30th September 1929. It does not appear that in the trial in question this previous acquittal was urged as a bar under Section 403, Criminal Procedure Code. But to remove any doubt on the matter I also set aside in revision this order of 30th September 1929, so that no bar now subsists to the retrial of these accused on the complaint under Section 7 of the Indian Copyright Act (Act III of 1914).
4. I may also note in regard to the argument now addressed to me as to expiry of the right of copyright on account of the alleged publication by the father of the complainant that it was not the case for the defence that the accused had reproduced any part of a publication by the father of the complainant. On the contrary it was the case for the defence that the accused had published the book in question from a manuscript supplied by another person.
5. Accordingly I set aside in revision the order of acquittal of Saeo Oharan Lal and Sri Pershad by the Magistrate on the charge under Section 7 of the Indian Copyright Act (Act III of 1914) and I direct that these two accueed be retried by the Magistrate on the complaint under this section. It is not necessary to retry the accused on the sections of which they were acquitted by the Sessions Judge.