Sk. Zaharul Islam vs Umakanta Khadiratna and Another

A. Pasayat, J.—Petitioner calls in question correctness of order dated 6-4-1991 passed by the learned Sub-divisional Judicial Magistrate,

Sadar, Cuttack (in short ''SDJM'') refusing to accept the prayer made u/s 94 of the Code of Criminal Procedure, 1973 (in short ''the Code'') and

Section 64 of the Copyright Act, 1957 (in short ''the Act''), to issue search warrant for search and seizure of certain alleged materials in the nature

of infringement of copyright of an almanac.

The learned SDJM refused the prayer on the ground that he had no jurisdiction to pass order for search and seizure.

The learned Counsel for the petitioner submits that the Magistrate had power to issue direction to the police official who u/s 64 of the Act is

authorised to effect seizure. The learned Counsel for the opposite parties, however, submits that Section 64 makes it apparently clear that specified

police officer is competent to effect any seizure of infringing copies. Therefore, the order of the learned Magistrate suffers from no infirmity.

At this stage it would be relevant to refer to Section 64 of the Act which deals with power to seize infringing copies. Prior to amendment of

Sub-section (1) of Section 64 by Act 65 of 1984, where a Magistrate had taken cognizance of any offence u/s 63 of the Act in respect of the

infringement of copyright in any work, it was lawful for any police officer not below the rank of Sub-Inspector, to seize without any warrant from

the Magistrate, all copies of the concerned work wherever found, if it appeared to him to be infringing copies of the work and all copies so seized

were required to be produced before the Magistrate as soon as practicable. After the amendment, any police officer not below the rank of a Sub-

Inspector, may, if satisfied that an offence u/s 63 has been committed, make seizure without warrant, and as soon as practicable after the seizure,

shall produce all the infringing copies of the work before a Magistrate. Sub-section (1), as it stood originally and as it stands after amendment are

quoted below :

Before amendment

Power of police to seize infringing copies.--

(1) Where a Magistrate has taken cognizance of any offence u/s 63 in respect of the infringement of copyright in any work, it shall be lawful for any

police officer, not below the rank of Sub-Inspector, to seize without any warrant from the Magistrate, all copies of the work wherever found,

which appear to him to be infringing copies of the work and all copies so seized shall, as soon as practicable, be produced before the Magistrate.

After amendment

Power of police to seize infringing copies.--

(1) Any police officer, not below the rank of a Sub-Inspector, may, if he is satisfied that an offence u/s 63 in respect of the infringement of

copyright in any work has been, is being or is likely to be, committed, seize without warrant, all copies of the work and all plates used for the

purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable, be produced

before a Magistrate.

From a conspectus of the pre and post amendment provision, it is clear that it is the domain of the police officer alone to effect seizure. The

Magistrate even after taking cognizance, cannot direct any police officer to effect seizure.

It is submitted by the learned Counsel for the petitioner that the position is anomalous because after the Magistrate takes cognizance, has no

power to direct seizure, even if the circumstances warrant. The argument is not without force. But the provisions of Sub-section (1) of Section 64

being clear, it cannot be said that the learned Magistrate was not justified in refusing the prayer of the petitioner. If there is any anomaly, it is for the

legislature to mend it. The Court cannot overreach the statutory prescriptions. It is submitted that by exercise of inherent power or ancillary power

the Magistrate can direct seizure. No Court except the High Court has jurisdiction to exercise inherent power u/s 482 of the Code. Therefore, the

Magistrate could not have exercised any inherent power. There being a specific provision in Sub-section (1) of Section 64 of the Act, by exercise

of any ancillary power, the Magistrate could not have also acted contrary to the statutory provision. It is for the legislature to fill up the lacuna to

get over the anomalous situation.

However, the petitioner is not helpless in the matter. He can bring to the notice of the concerned police official having jurisdiction the desirability

to effect seizure, and it is open to the police official concerned to act in accordance with law.

The revision application is accordingly disposed of.