NAZIR HUSSAIN Vs. DOOKHMOCHAN THAKUR

JUDGEMENT

(1.) On 3-5-63 one Dukhmochan Thakur, who described himself as a Novelist, Poet, Dramatist and Scenerio Writer, filed a petition of complaint before the Subdivisional Magistrate of Katihar, against the persons, one of whom is the present petitioner, who has been described as Film Story and Scenerio Writer. Film Director and Character Actor, and the other was one Bishwanath Prasad Shahabadi, who is described as Film Producer and Proprietor of Nirmal Pictures. The allegations in the petition of complaint were that there had been infringement of the copyright of the complainant's Hindi Novel, named "Gaon Ki Gori", in the first half of the Bhojpuri Film "Ganga Maiya Tohe Piyari Charhaibo", which was written by the petitioners and was produced by the other person, namely, Bishwamith Prasad, and that the said film was a colourable imitation of the first part of complainant's novel "Gaon Ki Gori",

(2.) The complainant was examined by the learned Magistrate on solemn affirmation who ordered on that date that the matter should be put up along with the Copyright Act on 6-5-68. The learned Magistrate again ordered the case to be put up on 21-5-63 for the purpose of enquiry and hearing. It appears that on 21-5-63, the complainant filed a petition, in which he gave details of the points, which, according to him, showed similarity in the said Novel and the film, thereby resulting in colourable imitation of his novel "Gaon Ki Gori". "He prayed therein that certain paragraphs be treated as part of the original petition of complaint. After a few dates, on 1-7-63, one witness on behalf of the complainant was examined by the learned Magistrate, who asked for a report, and on 27-12-63, he perused the report and took the view that a prima fade ease had been made out. He, therefore, took cognizance of the case for an offence under Section 63 of the Copyright Act, 1957 (Act XIV of 1957), hereinafter referred to as "the Act". The accused, namely, the petitioner surrendered in court on 29-4-64. On 5-9-64, 2 witnesses were examined on behalf of the complainant. On 3-12-64 three more witnesses were examined. After that, the matter made no progress, as Bishwanath took the matter to the High Court against the order of the learned Sessions Judge, who had ordered further enquiry into the case of the said Bishwanath Prasad, and the Prosecution against him was ultimately quashed on 26-7-67, The petitioner filed the present application on 24-10-67 in this Court for quashing the entire proceeding on the ground that the petition of complaint disclosed no offence.

(3.) Appearing on behalf of the petitioner, Mr. Braj Kishore Prasad has, in the first place, contended that there is no resemblance in the two books, and, even if there is any, then it is purely accidental. He has given a catalogue of the allegations arising from the petition of complaint, and they are as follows :