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Kishori Mohan Bagchi and anr. Vs. Hari Das Bysack - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in55Ind.Cas.999
AppellantKishori Mohan Bagchi and anr.
RespondentHari Das Bysack
Cases ReferredPuma Chandra Bandopadhya v. Sasi Bhusan Mullik
Excerpt:
criminal procedure code (act v of 1898), section 96 - copyright act (iii of 1914), section 7, proceeding under--magistrate, power of, to issue search warrant--stay of warrant. - .....by the learned vakil for the applicants that it was made ex parte. the order ran as follows: ' issue search warrant, as prayed for, to discover all copies of books, and papers named purohit darpan, or blocks, plates, printed and set up matters, letters, correspondence and orders with reference to the same book.' the warrant was issued under section 96 of the code of criminal procedure, and it proceeded as follows:whereas complaint has been made before me of the commission of the offence of section 10 of act iii of 1914'--(i think that is a mistake, because there is no offence provided by section 10 of that act, and i suppose it was a slip for section 7; for it is that section which provides for the offence under consideration)-'and it has been made to appear to me that the production.....
Judgment:

Lancelot Sanderson, C.J.

1. This is an application under Section 435 of the Criminal Procedure Code by Messrs. Kishori Mohan Bagchi and Amar Krishna Bagchi; and in the application the applicant ask for an order that a certain search warrant and an order directing the applicant to execute bond for Rs. 15,000 should be set side

2. It was directed by this Court that this application should be heard at the same time as the Criminal Appeal No. 354 of 1919, and in the ordinary course the procedure would have been to have issued a Rule upon the learned Magistrate to show cause why this order should not be made; but inasmuch as the direction was that the application should be heard along with the appeal, and inasmuch as Mr. Orr appearing in the appeal was already instructed on behalf of the Crown and Mr. Mukerjee appeared on behalf of the complainant, it was agreed by all the parties that this matter, in order to save time, should be fully argued to day, and it has been argued by the learned gentlemen whom I have just mentioned and by Mr. Pal Chowdhry who appeared for the applicants.

3. The facts which gave rise to this application are as follows. On the 18th of February 1919 there was a direction by the High Court that a Complaint by the complainant against the applicants under Section 7 of the Copyright Act of 1914, should be further enquired into: the complainant was alleging that the applicants ware infringing the copyright of the complainant in a book known as ' Purohit Darrpan', and the complainant was proceeding against the applicants under Section 7 of the Copyright Act. On the 8th of April a warrant for the production of ten of the alleged infringing copies was issue I by the Magistrate. On the 10th of April the Sub Inspector of Police visited the applicants' premises; and according to the allegations before us, ha saw a considerable amount of prints! matte?. The applicants handed to him one copy which was not complete. Thereupon, as I understand, the proceedings continued in the Police Court and some witnesses were heard. An application had been put in by the complainant, dated the 28th of May 1919, asking that the Magistrate should issue a search warrant to search the press and shop of Messrs. Bagchi for the production of 5,000 infringing copies of the books, plates, etc., under Section 10 of Act III of 1914 for the purpose of their being destroyed or made over to the petitioner, or that they might remain in the custody of the Court in order that these might be dealt with as the Court might think fit and proper. I think the object of this application undoubtedly was that the Court might obtain control over the alleged infringing copies, which were supposed to be in the possession of Messrs. Bagchi, in order that an order might be made under Section 10 of the Copyright Act upon the application of the complainant. That application apparently was not dealt with at the time it was filed, but on the 16th of June 1919 an order for the issue of a search warrant was made by the Magistrate, and we are informed by the learned Vakil for the applicants that it was made ex parte. The order ran as follows: ' Issue search warrant, as prayed for, to discover all copies of books, and papers named Purohit Darpan, or blocks, plates, printed and set up matters, letters, correspondence and orders with reference to the same book.' The warrant was issued under Section 96 of the Code of Criminal Procedure, and it proceeded as follows:

Whereas complaint has been made before me of the commission of the offence of Section 10 of Act III of 1914'--(I think that is a mistake, because there is no offence provided by Section 10 of that Act, and I suppose it was a slip for Section 7; for it is that section which provides for the offence under consideration)-'and it has been made to appear to me that the production of all copies of books and proofs named Purohit Darpan on blooks,plates, printed and set up matters, letters, correspondence and orders with reference to the same book, in the case of Hari Das Basak v. Kishori Mohan Bagchi and Ors. is essential to the inquiry into the said offence. This is to authorize and require you to search immediately for all the said copies of books and proofs named Purohit Darpan, etc., in the premises No. 38,38-1, Masjid Bari Street, and 19 and 19-1, Gulu Ostagar's Lane, Calcutta, and if found, to produce the same forthwith before this Court, returning this warrant, with endorsement certifying what you have done under it, immediately upon its execution, on the 18th June 1919.' This warrant was taken by the Police Officer to the premises of the applicants; and, one of the applicants, Mr. Amar Krishna Bagchi, apparently thinking that the execution of this warrant would seriously interfere with their business, made an application to the Magistrate on the same day, i.e., 16th of June 1919. The terms of his petition were as follows: 'That your petitioner admits that he has published 5,000 copies of the Arjyachar Padhati or Purohit Darpan, and out of that one hundred copies are ready for sale; and your petitioner has only sold about 25 or 30 copies and the remaining books are in the possession of your petitioner. That your petitioner undertakes not to sell or part with any of the copies of the said book and to produce the same whenever called upon by the Court. Therefore, your petitioner prays that execution of the search warrant may be stayed for the present.' Thereupon, the Magistrate made the following order: ' Stay execution of the warrant for the present. Accused to produce 5 copies on the 18th in Court, and further to execute a bond for Rs. 15,000 for producing 4,900 copies in Court whenever called upon.

4. The learned Vakil for the applicants has urged, first, that the order for the issue of the warrant on the 16th of June 1919 was beyond the jurisdiction of the Magistrate. He has also urged, on the facts of the case, that even if there was jurisdiction, the learned Magistrate ought not to have ordered the issue of the warrant, and, finally, he has urged that in any event the Magistrate had no power to impose the condition of the bond for Rs. 15,000. I propose to deal with the last point first because, to my mind, the decision of the case really depends upon whether the Magistrate had jurisdiction to issue the warrant on the 16th of June 1919.

5. Assuming, for the sake of argument, that the order for the issue of the warrant was within the jurisdiction of the Magistrate, and it was properly made on the facts of the case, in my judgment, the fact that the Magistrate took a bond from the applicants does not make these proceedings void or beyond the jurisdiction of the Magistrate. I think the effect of what took place was this. The warrant had been issued, and Mr. A.K. Bagchi applied to the Magistrate for stay of execution of the warrant, and offered to give his undertaking not to sell the books, and to produce them before the Court whenever the Court required. The Magistrate was not satisfied with such an undertaking, and he said that he would be willing to stay the execution of the warrant provided that Mr. Bagchi executed a bond for Rs. 15,000 for producing 4,900 copies in Court whenever called upon. The learnad Vakil has argued that the Magistrate had no jurisdiction to make that order, and he has relied upon a decision of this Court in the case of Puma Chandra Bandopadhya v. Sasi Bhusan Mullik 7 C.W.N. 522. In my judgment, that case does not cover the present, because in that case the order was made upon the production of a letter and was a substantive order. There was no issue of a search warrant in that case, and the order for the bond was not made as a condition for the stay of execution of a search warrant as in this case. The learned Vakil has produced no authority to show that the order of the Magistrate staying execution of the warrant upon the abovementioned condition was made without jurisdiction, and in the absence of any such authority, I am not prepared to hold that the Magistrate had no jurisdiction to stay execution of the warrant, upon the application of Mr. Bagchi himself, upon the condition that he must enter into a bond for the production of the copies in Court.

6. Then arises the other question, which, in my judgment, is the real question in this case, namely, whether the order for the issue of the warrant on the 16th of June was beyond the jurisdiction of the Magistrate. That depends upon Section 96 of the Criminal Procedure Code and Sections 7 and 10 of the Copyright Act of 1914, The third paragraph of Section 96(1) provides as follows: ' Where the Court considers that the purposes of any enquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search warrant. It is agreed by both parties that the proceedings for an alleged offence under Section 7 of the Copyright Act are 'proceedings under this Code' within the meaning of that section. Therefore, it remains to consider the words that the purposes of any enquiry, trial or other proceeding will be served by a general search or inspection.' Those words are very wide, and the question is whether the order which may be made under Section 10 of the Copyright Act can properly be said to be for the purposes of an enquiry, ' trial or other proceeding ' under Section 7. Now, what were the purposes of these proceedings? It seems to me that the purposes were, first, to obtain the conviction of the applicants under Section 7, and, secondly, to prevent the sale or hire of the alleged infringing copies or the distribution of the alleged infringing copies: and one way of preventing further sale or distribution of the alleged infringing copies would be by the Magistrate making an order under Section 10 of the Copyright Act, because Section 10 provides: 'The Court before which any offence under this chapter is tried may, whether the alleged offender is convicted or not, order that all copies of the work or all plates in the possession of the alleged offender, which appear to it to be infringing copies, or plates for the purpose of making infringing copies, be destroyed or delivered up to the owner of the copyright, or otherwise dealt with as the Court may think fit.' It may well be that the Magistrate may think that in the proceedings it may become necessary for him to make an order with respect to the alleged infringing copies under Section 10, and he may be of opinion that, unless he takes some steps to bring the alleged infringing copies, which are in the possession of the alleged offender, under the control of the Court, he will not be able to make an effective order under Section 10, and one of the purposes of the proceedings may be prevented. In my judgment, it is not possible for us to say that an order under Section 10 of the Copyright Act might not be one of the purposes of the proceedings under Section 7 of the Copyright Act. If then an order under Section 10 would be one of the purposes of the proceedings, I think it is clear that such purpose might be served by the issue of a search warrant in order that the Magistrate might ascertain whether the alleged offender had in his possession the alleged infringing copies and how many copies he had for the purpose of making an order that those copies should be brought under the control of the Court. For these reasons', I think, the order for the issue of the warrant under Section 96 was not beyond the jurisdiction of the Magistrate.

7. With regard to the facts, I do not think there is anything special in the facts of this case which would justify us in interfering with the discretion of the Magistrate provided that he had jurisdiction,- a question which I have held should be answered in his favour.

8. For these reasons, I think that this application should be dismissed.

Duval, J.

9. I agree with my Lord the learned Chief Justice. As to the first point as to whether the Magistrate has jurisdiction to issue a search warrant, I agree with him for the reasons that have been given. As to the point as to whether security should have been demanded after search warrant was issued, it seems to me that in this matter, after the issue of the search warrant, the petitioner himself came forward and prayed that the warrant should not be executed so as to prevent a dislocation of his busine Sections It was, therefore, arranged that he would give security and he gave security. I do not think he can now turn round, after be has given security and after it has been found that the warrant which was issued was a legal warrant for search, and ask us to discharge him from such security. If he is unwilling to continue the security, it seems to me that his surety can surrender his suretyship, and he is at liberty to produce the 4,900 copies in Court, and would not be any longer under any liability under the bond for Rs. 15,000. For these reasons, I think that the application should be dismissed.


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