SANKAR BISWAS Vs. SAUL CHATTERJEE

JUDGEMENT

(1.) The Petitioners, against whom processes have been issued for offences under section 417 of the Penal Code and Sections 63 and 69 of the Copyright Act, 1957, on a complaint filed by the Opposite Party No.1 have applied before us for quashing the prosecution after having moved, but without success, the Magistrate for an Order of discharge under section 245(2) of the Code of Criminal Procedure. It is beyond doubt that, notwithstanding the issuance of process, a Magistrate may discharge the accused at any stage thereafter, and before reaching the stage of consideration of framing of charge and, therefore, the Magistrate went very much wrong in holding, as he did, that such discharge is not possible before recording the evidence of the witnesses before consideration of charge: as the Court must apply mind to the evidence before it prior to coming to such a conclusion. True, under section 245(1) of the Code, the Magistrate is entitled to discharge the accused only after considering all the evidence produced in support of the prosecution. But to hold that the Magistrate cannot do so in any case before or without recording evidence, would be to render Section 245(2) absolutely meaningless and otiose. But notwithstanding these broad and sweeping observations, the Order of the Magistrate can, however, be meaningfully read to mean that, in his view, there was nothing on record, as at present, to demonstrate that the charge was groundless. And I am inclined to think that the Magistrate is correct in that view. I have no doubt that the case of the Petitioners deserves serious consideration and must be considered by the Magistrate at the appropriate stage; but the materials now on record would not, without more, warrant quashing of the prosecution. Such a short-cut would be a wrong-cut, to borrow from Krishna Iyer, who has very rightly, in may say so with respect, observed that both in life as well as in law, short-cut may very often be the wrong-cut.

(2.) The complainant is the Gramophone Company of India Limited, hereinafter Gramophone Company, for short. The accused persons are the Managing Director and the Executive of Electroband (India) Private Limited, hereinafter Electroband for short. The case of the complainant is that the Gramophone Company is the owner of the original plates wherein the songs sung by the late singer were recorded and as such the company alone has the exclusive right to make any other record embodying the same recording. But the accused persons of Electroband have infringed that right by making cassette-recording from the records of Gramophone Company and nave offered those cassettes for sale through advertisements in Newspapers. The Gramophone Company served Solicitors notice on Electroband complaining of the infringement.

(3.) The case of Electroband is that the cassettes were records of the live-programmes of the late singer who sold them all his rights. But, even then, on receipt of the Solicitors notice, Electroband, in order to avoid all possible disputes, entered into an agreement dated 2.8.1989, agreeing inter alia that Electroband would - (a) pay to Gramophone Company royalty at the rate of 5% per cent per cassette; (b) inscribe on each cassette the words by the courtesy of the Gramophone Company of India Ltd.; (c) notify to Gramophone Company the amount paid by Electroband to the late singer and (d) obtain prior permission of Gramophone Company for future projects. A xerox copy of that Agreement has been annexed with the revisional application, but the same was not on record before the Magistrate as formal Exhibit.