KISHORI MOHAN BAGCHI Vs. HARI DAS BYSACK

JUDGEMENT

(1.) This is an application under Section 435 of the Criminal Procedure Code by Messrs. Kishori Mohan Bagchi and Amar Krishna Bagchi; and in the application the applicant ask for an order that a certain search warrant and an order directing the applicant to execute bond for Rs. 15,000 should be set side

(2.) It was directed by this Court that this application should be heard at the same time as the Criminal Appeal No. 354 of 1919, and in the ordinary course the procedure would have been to have issued a Rule upon the learned Magistrate to show cause why this order should not be made; but inasmuch as the direction was that the application should be heard along with the appeal, and inasmuch as Mr. Orr appearing in the appeal was already instructed on behalf of the Crown and Mr. Mukerjee appeared on behalf of the complainant, it was agreed by all the parties that this matter, in order to save time, should be fully argued to day, and it has been argued by the learned gentlemen whom I have just mentioned and by Mr. Pal Chowdhry who appeared for the applicants.

(3.) The facts which gave rise to this application are as follows. On the 18th of February 1919 there was a direction by the High Court that a Complaint by the complainant against the applicants under Section 7 of the Copyright Act of 1914, should be further enquired into: the complainant was alleging that the applicants ware infringing the copyright of the complainant in a book known as " Purohit Darrpan", and the complainant was proceeding against the applicants under Section 7 of the Copyright Act. On the 8th of April a warrant for the production of ten of the alleged infringing copies was issue I by the Magistrate. On the 10th of April the Sub Inspector of Police visited the applicants premises; and according to the allegations before us, ha saw a considerable amount of prints! matte?. The applicants handed to him one copy which was not complete. Thereupon, as I understand, the proceedings continued in the Police Court and some witnesses were heard. An application had been put in by the complainant, dated the 28th of May 1919, asking that the Magistrate should issue a search warrant to search the press and shop of Messrs. Bagchi for the production of 5,000 infringing copies of the books, plates, etc., under Section 10 of Act III of 1914 for the purpose of their being destroyed or made over to the petitioner, or that they might remain in the custody of the Court in order that these might be dealt with as the Court might think fit and proper. I think the object of this application undoubtedly was that the Court might obtain control over the alleged infringing copies, which were supposed to be in the possession of Messrs. Bagchi, in order that an order might be made under Section 10 of the Copyright Act upon the application of the complainant. That application apparently was not dealt with at the time it was filed, but on the 16th of June 1919 an order for the issue of a search warrant was made by the Magistrate, and we are informed by the learned Vakil for the applicants that it was made ex parte. The order ran as follows: " Issue search warrant, as prayed for, to discover all copies of books, and papers named Purohit Darpan, or blocks, plates, printed and set up matters, letters, correspondence and orders with reference to the same book." The warrant was issued under Section 96 of the Code of Criminal Procedure, and it proceeded as follows: Whereas complaint has been made before me of the commission of the offence of Section 10 of Act III of 1914"--(I think that is a mistake, because there is no offence provided by Section 10 of that Act, and I suppose it was a slip for Section 7; for it is that section which provides for the offence under consideration)-"and it has been made to appear to me that the production of all copies of books and proofs named Purohit Darpan on blooks,plates, printed and set up matters, letters, correspondence and orders with reference to the same book, in the case of Hari Das Basak v. Kishori Mohan Bagchi and Ors. is essential to the inquiry into the said offence. This is to authorize and require you to search immediately for all the said copies of books and proofs named Purohit Darpan, etc., in the premises No. 38,38- 1, Masjid Bari Street, and 19 and 19-1, Gulu Ostagar s Lane, Calcutta, and if found, to produce the same forthwith before this Court, returning this warrant, with endorsement certifying what you have done under it, immediately upon its execution, on the 18th June 1919." This warrant was taken by the Police Officer to the premises of the applicants; and, one of the applicants, Mr. Amar Krishna Bagchi, apparently thinking that the execution of this warrant would seriously interfere with their business, made an application to the Magistrate on the same day, i.e., 16th of June 1919. The terms of his petition were as follows: "That your petitioner admits that he has published 5,000 copies of the Arjyachar Padhati or Purohit Darpan, and out of that one hundred copies are ready for sale; and your petitioner has only sold about 25 or 30 copies and the remaining books are in the possession of your petitioner. That your petitioner undertakes not to sell or part with any of the copies of the said book and to produce the same whenever called upon by the Court. Therefore, your petitioner prays that execution of the search warrant may be stayed for the present." Thereupon, the Magistrate made the following order: " Stay execution of the warrant for the present. Accused to produce 5 copies on the 18th in Court, and further to execute a bond for Rs. 15,000 for producing 4,900 copies in Court whenever called upon.