Bihari Lal vs Rampirit Ram

Varma, J.—This is a petition on behalf of one Bihari Lal who has been convicted u/s 7(b) of the Indian Copyright Act 3 of 1914 and sentenced to pay a fine of Rs. 40 and in default, simple imprisonment for one month. There was also an order u/s 10(1) of the same enactment for the confiscation of several books found in the house of the petitioner. The case for the prosecution is that there was a book published by the complainant''s father which was known as Bibaha Hari Kirtan and the rights in that book were infringed by the accused publishing the book known as Ram Bibaha Hari Kirtan which was published in Benares in the Sang Vidyalaya Press.

The case was tried summarily by Mr. N. Moitra, Sub-divisional Officer of Gaya. Mr. Rajkishore Prasad appearing on behalf of the petitioner has raised various points of law as well as mixed points of law and fact in this case. He argues that this was not a case which should have been tried summarily; that non-registration of the copy right of the book Bibaha Hari Kirtan is fatal to the charge u/s 7(b) and that the book was not an original book. He therefore argues that there was no copy right in the book and therefore there was no infringement. The last point that he argues is that he had not had a fair trial.

For the purposes of this case, it may not be necessary for me to go into the other points urged excepting the last one. It appears from the order sheet of the trial Court that the complainant was examined on the 5th of March 1934 and the order passed thereafter was: "Summon Bihari u/s 7, Act 3 of 1914" etc. From this order it does not appear under which clause of Section 7 he was being summoned, because in Section 7 of the Copy Right Act there are no less than five clauses.

In answer to the summons issued by the Court, the accused appeared on the 20th March 1934 but it appears that the Officer was out on tour and the next date fixed by the gentleman in charge was the 6th April 1934. So even on the 20th March he did not know under which clause of Section 7 he was going to be prosecuted. On the 6th April some witnesses were examined: the accused was examined under Sections 242 and 342 and ultimately there was an order of conviction on the 9th April 1934. It is said that the petitioner wanted to enter into defence and examine a few defence witnesses. This was the second ground of his petition to this Court. The learned Magistrate in his explanation says that the accused appeared on the 20th March and evidence was recorded on the 6th April. Therefore he had sufficient; opportunity to summon defence witnesses if he so desired.

But till the 6th April it is not at all clear from the order sheet that the accused knew under what clause of Section 7 he was going to be tried. Under the circumstances, I would set aside the conviction of the accused, sent back the case for retrial and disposal according to law.

The other points which I have mentioned in the earlier part of my judgment urged by Mr. Rajkishore Prasad also need consideration, especially the point about the registration of the book the copy right of which is said to have been infringed.

I would therefore send back the case to the learned District Magistrate of Gaya who may dispose of it himself or transfer the case to some other Magistrate except the Magistrate who had tried the case. I may note here that although the learned Sessions Judge has disposed of this matter as a revision and refused to refer the matter to the High Court because there was no important point of law, so far as the order u/s 10(1) of this Act is concerned, there is a special appeal provided by C1. (2).