IN THE HONBLE COURT OF JUDICATURE AT ALLAHABAD

LUCKNOW BENCH, LUCKNOW

Crl. Misc. case No. of 2007

(1 ) Nadeem lakhnavi, aged about 34years

Son of Mohd. Tahir siddiqui
Resident of matiari chauraha
Kotwali road
Police station chinhat
District lucknow

(2) Israr warsi alias israruddin, aged about 34 years

Son of sri nizamuddin
Resident of village and post ragaul
Police station maudaha
District Hamirpur...petitioner

Versus

1. The state of u.p

2. Krishan sahu,aged major

Son of sri chukka sahu
Resident of mohalla thok gurunj
Kasba bharua sumerpur
District Hamirpur.opposite party
 FACTS

(1 ) Petitioner(1) is proprietor of M/s avadh cassette industries, lucknow engaged

in business of sound recording under the name of GOLD AUDIO.

(2 ) Petitioner(2) is the treasurer and authorized representative of committee of

management, waqf hazrat ganj shaheedan( warsi committee), registered as
waqf no. 88 with sunni waqf board, lucknow

(3 ) Functions are performed biannually one on 11th june and second on 23rd
November in memory of haji waris ali shah of dewa sharif, barabanki. In this
programme, the committee engages Qawwals and others artist and invest
substancial funds.

(4) Opposite party no.2 was engaged in the work of recoding of the programme
and was made due payment for that. It was incumbent upon opposite party to
hand over the original cassette of the programmes recorded. Copy rights of these
cassettes vest in warsi committee as they are the organisers of programme.

(5) Opposite party was clandestinely preparing the copies of few programmes
which they were selling in the market under the name of Aarti cassette centre.
These programmes include:

1. Bayan-e-sabir
2. Warsi pak ka karam
3. Chalo waris ke desh
4. Aashiq-e-waris
5. Waris ka rang
6. Waris ke kadmon mein

(6) Warsi committee on discovering the infringement of the copy rights of their
programme authorized the petitioner no.2 to institute a suit against opposite
party. Petitioner no.2 filed a suit for injunction and other relieves under the act in
the court of district judge hamirpur(o.s no.1 of 2001) which is pending.,
(7) Opposite party no.2 also filed a suit for permanent injunction In the court of
civil judge(senior div.), hamirpur against the petitioner no.1 which is registered as
case no. 1 of 2001.

(8) Learned judge granted ex-parte injunction on 18-10-2000 in favour of opposite

party no.2

(9) Petitioner no.2 appeared before civil court and gave application to cancel the
injunction order granted to opposite party no.2 and submitted that suit no.132 of
2000 filed by opposite party no.2 in court of civil judge is not maintainable.

(10) Opposite party as a counter blast for the above application filed an F.I.R in
police station chinhat, lucknow on 31-08-2001 under section 51, 52A, 63, 68A of
copy rights act 1957.

(11) Opposite party wrongly claimed In the F.I.R that he has the copyright
registeration of the seven cassette:

1. Waris ka rang
2. Waris ki inayat
3. Waris ka des
4. Waris ke kadmon me
5. Waris pak ka karam
6. Aashique waris
7. Bayane sabir

(12) Petitioner submitted that opposite party has no copyright registration and
neither he has shown any averment in court proceeding before civil judge in case
no. 132 of 2000 ( aarti cassettes vs avadh cassettes).

(13) Aslam nizami is the singer of the programme organized by warsi committee
and opposite party has not obtained and copyright for aslam nizami.
Aggrieved by the F.I.R registered by opposite party on 31-8-2001, the petitioner
filed a writ before Honble High court as petition no. 4441 (M/B) of 2001, and a
division bench was pleased to stay the arrest of petitioner by an order 6-9-2001.
Staying order is in (annexure no. 5).

(14) 14-12-2006 chargesheet of F.I.R no. 268 of 2001 was submitted and as a
result writ petition was dismissed as infructuous.

(15) Contentions raised earlier:

(a )Registrar of the copyright with due inquiry entered the particulars of the
aforesaid works and certificate of the same has been issued in favour of petitioner
no.1

(b) Police has acted in most malafide manner and submitted the impugned charge
sheet against petitioner.

(c) Magistrate has not applied judicial mind and has taken the cognizance and has
summoned the petitioner

Various facts:

(1) Defendant has not given the recording of 1997 on time and has also lacked
many time In giving the recording and in 1999 has not given 2 recording giving the
petty excuse of film damaging.

(2) Cassette by aarti cassette don not even mention the name of the copyright
holder on its cover or wrapper and depicts photo plaintiff no. 2 (READ IN
REFERENCE TO SECTION 55(2)of the act)

SECTION 55(2): Where, in the case of a literary, dramatic, musical or artistic work, a
name purporting to be that of the author or the publisher, as the case may be, appears
on copies of the work as published, or, in the case of an artistic work, appeared on the
work when it was made, the person whose name so
appears or appeared shall, in any proceeding in respect of infringement of copyright in
such work, be presumed, unless the contrary is proved, to be the author or the publisher
of the work, as the case may be.

(3) A copy of the certicificate issued by the copyright office of govt. of india dated 27-22-
2000 for the various titles is in ANNEXURE 7

(4)Copy of impugned chargesheet is in ANNEXURE NO.1

(5) Copy of suit filed by opposite party is in ANNEXURE NO. 3

1. Bayan-e-sabir
2. Warsi pak ka karam
3. Chalo waris ke desh
4. Aashiq-e-waris
5. Waris ka rang
6. Waris ke kadmon mein

SECTIONS INVOLVED:

Section 64: power of police to sieze infringing copies

Section 65: possession of plates for purpose of making infringing copies

Section 68A: penalty for violating section 52A

Prayer:

To quash the proceeding in case no. 4369 of 2001(state vs nadeem lucknavi and
odr) under section 51,52A, 63, 68A of copyright act pending in court of ACJM,
lucknow and

chargesheet no. 245 of 2001 submitted by police of police station chinhat,

lucknow on 15-10-2001.

Interim relief granted by court to stay the proceeding of case no. 4369 of 2001
under section 51,52A,63,68A. may kindly be remain stayed during pendency of
instant petition.
CASE LAW:

(A) Exphar Sa & Anr vs Eupharma Laboratories Ltd. & Anr

(B) SANJEEV SACHDEWA AND OTHERS VS STATE OF HARYANA

( fir was quashed which was file against section 52A AND 68A but here the condition was that both
the parties have compromised)

(C) SUDHIR BHATIA AND OTHERS VS MIDAS HYGIENE INDUTRIES PVT LTD

(D) Lal Babu Priyadarshi And Anr. vs Badshah Industries And Ors
Bench: N Rai, S Katriar - Date of Judgment: 19 April, 2001
Rule 16(3) of the Copyright Rules, 1958 which embodies the principle of natural justice
provides that when there is a rival claim with regard to subject matter of the copyright then no
order can be passed in favour of any party without hearing the application of the other applicant.
Non-observance of the said provision will vitiate the order with regard to the entry in the
Register of the Copyright. The said requirement cannot be waived nor non-observance of the
said provision can be said to be a mere irregularity. If a person making an application under
section 45 is not aware of the rival claim then the matter would be different. But in this case, as
is evident from the notice sent by the appellants through their counsel, they were aware of the
claim of the respondents and as such they should have given notice to the respondents intimating
them of their intention to file an application for registration so that the respondents could have
raised objections and, thereafter, the matter would have been decided in terms of provisions
contained in Section 45, read with Rule 16. In this case Rule 16 has not been followed before
making the entry in the Register of Copyright under section 45 and, thus, the Board rightly came
to the conclusion that non-observance of the provisions of Rule16 (3), which is mandatory in
nature, has vitiated the certificate of registration in favour the appellants.

(E)Sulamangalam R. Jayalakshmi v. Meta Musicals, Chennai

AIR 2000 Mad 454 - Bench: M Karpagavinayagam - Date of Judgment: 16 June, 2000