Full Judgment Text
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.271 of 2020
Arising Out of PS. Case No.-94 Year-2020 Thana- PATLIPUTRA District- Patna
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Prashant Kishor Son of Late Srikant Pandey Resident of C-4, Singeshwar
Apartment, East Boring Canal Road, P.S.- Buddha Colony, District- Patna,
Office at - IPAC, 6th Floor, Abdul Hai Comples, Exhibition Road, P.S.-
Gandhi Maidan, District- Patna.
... ... Petitioner
Versus
1. The State of Bihar though the Principal Secretary, Home Department,
Government of Bihar, Patna Bihar
2. The Senior Superintendent of Police, Patna Bihar
3. the City S.P. Patna Bihar
4. The S.H.O., Pataliputra Police Station, Patna Bihar
5. The Investigating Officer, Pataliputra, P.S. Case No. 94 of 2020, Pataliputra,
P.S.- Patna Bihar
6. Shashwat Gautam S/O Late Ramji Singh R/O- 201/A, Patliputra Colony,
P.S.- Patliputra, District-Patna
... ... Respondents
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Appearance :
For the Petitioner : Ms. Eashita Raj, Advocate
Mr. Anuj Kumar, Advocate
For the State : Mr. M. Nasrul Huda Khan, S.C.-1
Mr. Harun Quareshi, A.C. to S.C.-1
For the Respondent No.6: Ms. Sangeet Deokuliar, Advocate
Mr. Akhilesh Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
C.A.V. JUDGMENT
Date : 12-05-2026
The petitioner has invoked the criminal writ
jurisdiction of this Court under Articles 226 and 227 of the
Constitution of India and prayed for quashing the F.I.R. vide
Patliputra P.S. Case No.94 of 2020 registered for the offence
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under sections 467, 468, 471, 420, 406 read with section 120-B
of the Indian Penal Code, 1860.
2. The informant namely, Shaswat Gautam
(respondent no.06) had lodged a written complaint on
25.02.2020 stating therein that he had previously worked in the
United States of America and he asserts himself to be an active
member of the Indian National Congress Party and he was
preparing for the election campaign leading up to the Bihar
Legislative Assembly Elections, which included the work of
data collection, compilation and thereafter creating several types
of intellectual property. The campaign was based on socio-
economic data of Bihar and was named as " Bihar Ki Baat ". It
was further stated that for digital implementation of the
aforesaid campaign, a website was registered as
“www.biharkibaat.in” on 07.01.2020. The informant alleged that
in the early stages of the aforesaid campaign i.e. from
December, 2019 one Osama Khurshid got associated with him
as a political activist and started working with him without any
remuneration. It has further been stated that he personally knew
Osama Khurshid from October, 2017 who had also contested for
the post of Joint Secretary on the ticket of Janta Dal (United)
(JD(U) in the Student Union elections at Patna University.
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However, from the month of February, 2020 said Osama
Khurshid stopped coming to the office and fled away with the
office-laptop which contained the data, campaign designs and
collection of other intellectual properties. Despite repeated calls,
said Osama did not return the laptop and thereafter, the
petitioner, Prashant Kishor, launched " Baat Bihar Ki " with the
same set of data and other intellectual materials claimed to be
belonging to the informant. It was alleged that the informant
later, came to know that said Osama Khurshid stole the
materials on the directions of the petitioner, who was associated
with Indian PAC Consulting Private Limited. It was further
alleged that the petitioner had purchased the said website on
16.02.2020 wherein the alleged intellectual property belonging
to the informant was published without his consent or
permission. The informant lastly submitted that even in the year
2015 during the ensuing Assembly Elections, the informant, on
the pretext of friendship, had given the campaign designs to the
present petitioner. Therefore, it is alleged that the said Osama
Khurshid and the present petitioner including his other
associates have conspired and committed theft of intellectual
properties belonging to the informant.
3. Learned counsel appearing for the petitioner
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has submitted that the petitioner is innocent and has falsely been
implicated in the instant case in order to malign his image prior
to the upcoming Bihar Assembly Elections, where the petitioner
is looking to impact the election campaign through discussions
on relevant issues. He further submits that the petitioner is an
election consultant and social activist and had worked in the
past. He has been working on several projects related to
elections in different States in India under various political
leaders including those in Bihar, Punjab, Uttarakhand, U.P.,
Andhra Pradesh, Maharashtra, Delhi, West Bengal and Tamil
Nadu.
4. Learned counsel for the petitioner further
submits that the sum and substance of the allegation levelled
against the petitioner is that the informant had collected and
collated some data claiming to be his intellectual property which
was stolen by one Osama Khurshid and handed over to the
petitioner. He further submits that the petitioner is the harbinger
of the idea of ‘Professional Election Consultancy’ which is
driven through data, interviews and surveys on different issues,
in order to bridge the communication gap between the demands
of the electorate and political actions of various political parties.
It is submitted that the political parties are free as per their wish
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to incorporate these in their election campaigns and manifestos.
It is stressed by the learned counsel that the original data is not
generated by the election consultant and the original data is in
fact based on the Government data such as, those published by
the Office of the Registrar General and Census Commissioner of
India or the Economic Survey published by the Government,
which are used as and when required. It is further amply
stressed that even then the use of such data is but a very
miniscule part of the entire exercise.
5. Adverting to the claim of the informant that
he got the website “ www.biharkibaat.in ” registered on
07.01.2020 whereas the petitioner got the website
“ www.baatbiharki.in ” registered on 16.02.2020, it is submitted
by learned counsel for the petitioner that around six distinct
websites have been registered within the last six months with
similar names. He further submits that these websites were
domain names and not trademarks over which any exclusivity
could be asserted. It is emphasised by the learned counsel that
the website launched by the petitioner does provide some data
however, the sources of such data have clearly been mentioned
and therefore, no question of exclusive right by virtue of
intellectual property arises, as claimed by the informant, since
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they originate from the publicly available Government records.
Therefore, it is the argument of learned counsel that there is no
originality or exclusiveness attached thereto and there is no
novelty or artistic expression or originality in any content either
on the website of the petitioner or that of the informant.
6. The next submission of learned counsel for
the petitioner is that the law relating to the intellectual property
is governed by the Copyright Act, 1957, Trademark Act, 1999,
Patent Act, 1970 and Common Law remedy of ‘passing off’.
The intellectual property in India is administered by the
Controller General of Patents, Designs, Trademarks
(CGPDTM), which administers the law of Patents, Design,
Trademarks and Geographical Indications. Therefore, it is
submitted that this special law dealing with the subject of
intellectual property has been casually invoked in the F.I.R,
without any substance and applicability in the present case and
context.
7 . It is submitted that the intellectual property
is created by filing relevant applications before the concerned
authorities for trademark, copyright and patent, who in turn,
after undertaking the necessary enquiry and procedures
provided under the concerned relevant statute, provide the
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certificates. It is emphasised that the informant is not the holder
of any relevant trademark, patent or copyright in his favour and
has not averred anywhere regarding holding any certificate for
the same. The learned counsel submits that right under
trademark may arise after fairly long usage, however, in the
present case, the website has been registered merely a month
back from the date of institution of the present F.I.R.
8. It has further been submitted by the learned
counsel for the petitioner that as per section 4 of the Cr.P.C.,
whenever there happens to be application of a special law, the
investigation, inquiry or trial should be guided by the special
law itself, if it so prescribes. Therefore, it is apparent from the
reading of section 4 that provisions of the Cr.P.C. would be
applicable where an offence under the IPC or under any other
law is being investigated, inquired into, tried or otherwise dealt
with. These offences under any other law could also be
investigated, inquired into or tried with according to the
provisions of the Cr.P.C. except in case of an offence where the
procedure prescribed thereunder is different than the procedure
prescribed under the Cr.P.C.
9 . It has further been submitted by the learned
Counsel for the petitioner that the informant is well aware that
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his case will not be covered at all by any stretch under the
Intellectual Property Rights available in India and has therefore
resorted to filing of the instant criminal case. It is further
submitted that the local jurisdictional police have invoked such
sections of Indian Penal Code which have no application at all
in the instant case. The F.I.R. has been lodged inter alia under
sections 467, 468, 471 which fall under Chapter XVIII titled
‘offences relating to documents and to property marks’. The
genus of the offences in these three sections is ‘forgery’, and
‘making of false documents’ which has been defined under
sections 463 and 464 of the Indian Penal Code. Adverting to the
aforementioned sections of the Indian Penal Code, the learned
Counsel submits that a bare perusal of sections 463 and 464
would amply show that they would not cover the stealing of so-
called data and so-called intellectual property, which is the main
thrust of the allegation against the petitioner. He furthermore
submits that prosecution has also been launched under section
406 which deals with criminal breach of trust and has been
defined under section 405 Indian Penal Code and the same
requires dishonest intention from the very beginning which has
not been alleged in this case. Similarly, it has been submitted
that section 420 Indian Penal Code which involves cheating and
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dishonestly inducing delivery of property, which is not made out
in the present case.
10. The submission of learned counsel for the
petitioner is that the definition of 'property' as defined in the
Indian Penal Code will not cover the intellectual property
claimed by the informant as the same is governed by separate
enactments and thus, no offence under the aforesaid sections as
alleged or any other sections of the IPC is made out against the
petitioner, as stated in the F.I.R. So far as the specific allegation
levelled against the petitioner is concerned, the crux of
allegation is that the so called intellectual property was stolen by
one Osama Khurshid, who gave it to the petitioner, and the
petitioner used it on his website. There is no allegation of
stealing against the petitioner and even if the entire allegation is
accepted, no case is made out against the petitioner.
11. It has further been submitted by the learned
counsel for the petitioner that the forum chosen by the informant
is wrong and the issue can be enquired into by the competent
authorities provided for administration of Intellectual Property
Laws or Civil Courts having jurisdiction under Law of Torts.
The informant has also availed civil remedy by filing Title Suit
being Registration No.86 of 2020/CNR No. BRPA03-000293-
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2020 titled as Shashwat Gautan and Anr. vs. Prashant Kishor
and Anr.
12. Learned Counsel for the petitioner concludes
his argument by submitting that the present dispute is civil in
nature but has been given the colour of criminal case so as to
harass and malign the petitioner with malafide intention just to
tarnish his image. The entire case of the prosecution is based on
false, concocted and manufactured story and therefore, the
present FIR may be quashed.
13. Learned counsel for the petitioner has relied
upon the decisions of the Hon’ble Supreme Court rendered in
the cases of Krishika Lulla & Ors. vs. Shyam Vithalrao
Devkatta & Anr. reported as (2016) 2 SCC 521 and in the case
of Knit Pro International vs. State of NCT of Delhi & Anr.
Reported as (2022) 10 SCC 221 to contend that in the facts of
the present case, the F.I.R. is liable to be quashed.
14 . Further, learned counsel for the petitioner
has relied upon the decision of the Hon’ble Supreme Court
rendered in the case of Avtar Singh vs. State of Punjab reported
as 1964 SCC OnLine SC 54 and Satya Narain Prasad vs.
Bhagwan Ramdas @ Bhagwan Sah & Ors. Reported as 1995
Suppl. (4) SCC 629 to contend that incorporeal property theft is
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not maintainable under section 379 of the Indian Penal Code.
15 . The learned counsel for the petitioner has
also drawn attention of this Court to the decision of the High
Court of Andhra Pradesh rendered in the case of Syed Asifuddin
and Ors. vs. The State of Andhra Pradesh & Anr. reported as
2005 SCC OnLine AP 1100 wherein the Hon’ble High Court
had categorically distinguished the cases under the I.P.C and the
Copyright Act 1957 and the IT Act and thereupon quashed the
FIR impugned therein.
16 . Learned counsel for the petitioner has also
relied upon the decision of the Hon’ble Supreme Court rendered
in the cases of Parminder Kaur vs. State of Uttar Pradesh and
Anr. reported as ( 2010) 1 SCC 322 and Paramjeet Batra vs.
State of Utrakhand and Ors. reported as (2013) 11 SCC 673.
Paragraph no.12 and 13 of Paramjeet Batra’s case (supra) reads
as under:-
“12. While exercising its jurisdiction under Section 482
of the Code the High Court has to be cautious.
This power is to be used sparingly and only for
the purpose of preventing abuse of the process of
any court or otherwise to secure ends of justice.
Whether a complaint discloses a criminal offence
or not depends upon the nature of facts alleged
therein. Whether essential ingredients of criminal
offence are present or not has to be judged by the
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High Court. A complaint disclosing civil
transactions may also have a criminal texture. But
the High Court must see whether a dispute which
is essentially of a civil nature is given a cloak of
criminal offence. In such a situation, if a civil
remedy is available and is, in fact, adopted as has
happened in this case, the High Court should not
hesitate to quash the criminal proceedings to
prevent abuse of process of the court.
13. As we have already noted, here the dispute is
essentially about the profit of the hotel business
and its ownership. The pending civil suit will take
care of all those issues. The allegation that forged
and fabricated documents are used by the
appellant can also be dealt with in the said suit.
Respondent 2's attempt to file similar complaint
against the appellant having failed, he has filed
the present complaint. The appellant has been
acquitted in another case filed by Respondent 2
against him alleging offence under Section 406
IPC. Possession of the shop in question has also
been handed over by the appellant to Respondent
2. In such a situation, in our opinion, continuation
of the pending criminal proceedings would be
abuse of the process of law. The High Court was
wrong in holding otherwise.”
17 . Learned counsel has also relied upon the
decision rendered in the case of Usha Chakraborty & Anr. vs.
State of West Bengal and Anr. reported as 2023 SCC OnLine
SC 90 to contend that the subsistence of present criminal
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proceeding is an abuse of the process of the Court since there is
already a civil case pertaining to the same subject matter, is
pending between the parties.
18 . Lastly, the learned counsel for the petitioner
has relied upon the decisions of the Hon’ble Supreme Court
rendered in the case of Delhi Race Club (1940) Limited & Ors.
vs. State of Uttar Pradesh and Anr. reported as (2024) 10 SCC
690 and in the case of Krishika Lulla & Others. vs. Shyam
Vithalrao Devkatta & Anr. reported as (2016) 2 SCC 521.
19 . In this case, a counter affidavit has been filed
on behalf of the respondent nos. 2 to 5 by the Dy. S.P., Law and
Order, Kotwali, Patna, opposing the reliefs sought by the
petitioner on account of its un-tenability. Upon submitting the
brief facts of the case, the aforesaid respondents have stated that
since the written complaint filed by the informant/respondent
no.06 shows commission of cognizable offence, the F.I.R. has
been registered against the petitioner being Patliputra P.S. Case
94 of 2020 dated 25.02.2020. It is submitted that upon
registration of the FIR, the investigation was handed over to the
Investigating Officer, who during the course of investigation,
has proceeded to record the re-statement of the informant and
has also visited the place of occurrence and thereafter the
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Investigating Officer has also recorded the statements of several
witnesses. The A.S.P., Law and Order, Patna had issued
supervision report and directed the Investigating Officer to
collect electronic evidences including the CDR and make
necessary entries in the case diary. The S.P. Central Patna had
issued Report-2 and given several directions including
compliance of the earlier supervision report. Subsequently, a
notice dated 18.02.2021 under section 91 Code of Criminal
Procedure was issued to the petitioner which was returned un-
served. Thereafter, a notice under section 91 Cr.P.C was also
issued to Abhay Kishore, the cousin of the petitioner, who has
sworn the affidavit in support of the present writ petition,
however the said notice was also unanswered. Therefore, it is
the submission of the respondents that owing to the aforesaid
facts, the investigation is still pending.
20 . The respondents have adverted to the case of
State of Haryana vs. Bhajan Lal and Ors. reported as 1992
SCC (suppl) 1 335 to lay emphasis on the parameters for
quashing the FIR or complaint case. The respondents in the
counter affidavit have also relied upon the case of Dineshbhai
Chandubhai Patel vs. State of Gujarat & Ors. reported as AIR
2018 SC 314 to contend that the present F.I.R. may not be
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quashed.
21 . A separate counter affidavit sworn by Nurul
Haque, Sr. Dy.S.P., Law and Order, Patna with a consolidated
reply to the present writ petition has also been filed by the
respondent no.02, which is essentially pari materia to the
counter affidavit filed by the respondent nos. 2 to 5, with the
only additional submission at paragraph no. 14 that the
Investigating Officer of the case has tried to collect the
documentary evidence including electronic evidence from the
informant but he could not be found at his office.
22 . A counter affidavit has been filed on behalf
of the informant/respondent no.06. In the said counter affidavit,
at the outset, in order to establish his bona fides it is submitted
on behalf of the informant that he holds a postgraduate degree
(M.B.A) in Data Analytics from the George Washington
University and has worked as the Head of Analytics Division at
the Water Commission, State of Maryland. It is also submitted
that the informant/respondent no.06 was an elected member of
the Senate at the George Washington University. The informant
after gaining experience and expertise in his field of
specialisation i.e. political and policy development returned to
India and was engaged to oversee communications at Janta Dal
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(United). It is further submitted that during the aforesaid
assignment, the informant actively participated in 2015 election
campaign for the Janta Dal (United) and introduced data-driven
insights of governance using digital technology and developed a
political campaign for the aforesaid political party which was
executed by the petitioner. The informant has also held positions
at the Centre for Economic Policy and Public Finance, ADRI,
Government of Bihar and presently the informant is working as
the National Coordinator of the Data Analytics Department at
the Indian National Congress Party.
23. It is next submitted by the informant /
respondent no.06 that he had conceived the idea of data driven
political campaign called ‘ Bihar Ki Baat ’ to inform the people
of Bihar about the governance, politics and legislation using
digital technology and other physical media. The informant has
purchased the domain name and also set up the social media
accounts and further formed a team of volunteers to work on the
campaign. It is alleged by the informant/respondent no.06 that
one Osama Khurshid on the instructions of the petitioner has
stolen the laptop containing the concept note of the campaign,
designs, workflow and the algorithms and subsequently the
petitioner launched a similar campaign called ‘ Baat Bihar Ki ’
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using the stolen content from the informant.
24. It is submitted that the relief sought by the
petitioner is not maintainable in view of the facts and
circumstances of the case and also in view of the settled
principle of law that Police is empowered to investigate into the
matter of criminal nature and more specifically in cases
involving cognizable offences. On the averment of the petitioner
that six distinct websites were registered within a span of six
months with similar names while the informant registered
www.biharkibaat.in on 07.01.2020 and the petitioner registered
www.baatbiharki.in on 16.02.2020, the answering respondent
no.6/informant submits that there were no such websites
registered and only Facebook pages were created for which
exact timeline could not be confirmed from the screenshots of
the aforesaid Facebook pages. It is, however, emphasised by the
respondent no.6/informant that even otherwise most of such
pages only started appearing after the conceptualisation of the
‘Bihar ki Baat’ campaign initiated by the informant.
25. Replying to the averment of the petitioner
that the data sourced from Government records has no
originality or exclusiveness, novelty, artistic expression or even
original conclusions on the website of both the petitioner as well
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as the informant, the informant/respondent no.6 has stated in the
counter affidavit that the end product holds significance when it
incorporates materials sourced from multiple sources/records,
that have undergone thorough analysis and critical thinking, as
such, it is submitted that the end product so produced becomes
the intellectual property of the creator. The informant/
respondent no.6 exemplifies this by stating that the research
papers and thesis that are published, draws upon from multiple
sources including books and academic journals and through the
process of assimilation and interpretation of this information a
new intellectual creation is formed that often takes shape of a
book. It is submitted that this process underscores the value of
synthesising diverse inputs to produce an original work by
synthesising and transforming existing knowledge, therefore
creators contribute in their own unique way by bringing in their
own perspective and insight, resulting in distinct and protected
intellectual property. It is asserted that the present work done by
the respondent no.6 is his own original creation wherein skill,
critical thinking and analysis has been employed to transform
existing data and information into the end result which is
therefore a protected intellectual property.
26. It is next submitted that the instant F.I.R. was
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registered invoking appropriate sections of the Indian Penal
Code as in the aforesaid F.I.R. it has been alleged that upon the
direction of the petitioner said Osama Khurshid has stolen the
laptop belonging to the informant/respondent no.6 and
subsequently the contents therefrom were obtained fraudulently.
It is alleged in the counter affidavit that this stolen content was
then eventually utilised by the petitioner in the ‘Baat Bihar Ki’
campaign and the petitioner was the primary conspirator. It is
emphasised by the respondent no.6/informant that the sections
under which the case has been registered by the Police are not
final and are subject to the outcome of the ongoing
investigation, it is apposite that after completion of the
investigation, the police would determine the final charges to be
filed before the competent Court.
27. While replying to the assertion made by the
petitioner regarding non-registration of the intellectual property
in question under appropriate intellectual property category and
non-issuance of any relevant certificates in connection thereof in
favour of the informant/respondent no. 6, it is submitted by him
that such grounds are not applicable in the facts of the present
case since they are irrelevant to the present legal proceedings
and do not pertain to the matter at hand.
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28 . The respondent no.6/informant further
submits that the petitioner has chosen to raise a myriad of
grounds purely intended to divert the attention of this Court. It is
submitted that the police have duly registered the F.I.R. under
appropriate provisions of law specifically addressing the offence
committed by the petitioner and his associates. It is amply
emphasised that the investigation is currently ongoing and has
not reached a conclusive stage. The respondent no.6 submits
further that the authority to investigate and uncover the truth lies
exclusively with the jurisdiction conferred upon the
investigating agency under the provisions of the Cr.P.C.
29. While replying to the argument advanced by
the petitioner that the exact allegation levelled by the informant
was directed towards one Osama Khurshid for theft of
intellectual property belonging to the informant and not towards
the instant petitioner, it is submitted by him that the petitioner
was indeed the master mind and the primary conspirator and has
orchestrated the entire incident. It is alleged by the respondent
no.6 that it was on the instigation of the present petitioner that
his accomplice Osama Khurshid, unlawfully obtained the laptop
belonging to the informant/respondent no.6 and subsequently
retrieved confidential information therefrom. It is reiterated that
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it was this stolen information that was then utilised by the
petitioner in creation and design of ‘Baat Bihar Ki’ campaign.
Therefore, it is submitted that the petitioner played a pivotal role
in orchestrating the theft and the subsequent utilisation of the
retrieved data for his own campaign.
30 . On the assertion of the petitioner that the
respondent no.6 has chosen a wrong forum and the issue can
only be inquired by an appropriate competent authorities under
law, the informant submits that the offences under Chapter-XIII
of the Copyright Act, 1957 particularly the offence under
section 63 of the aforesaid statute are classified as cognizable
offence. Further, it is submitted that the provisions of the
aforesaid Act does not restrict, limit or prohibit the jurisdictional
police from undertaking the investigation upon a complaint
being made. On the contrary, it is submitted that the aforesaid
Act empowers the police to take appropriate action in such
cases. It is further submitted by the respondent no.6 that the
Police have duly registered the FIR under relevant sections of
the IPC and the police after bringing the investigation to a
logical conclusion may further invoke other penal provisions
subject to the outcome of the ongoing investigation. It is
vehemently argued that the present case categorically attracts
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the section 420 of Indian Penal Code and amply satisfies the
ingredients of the aforesaid section. In order to further buttress
this argument, the informant/respondent no.6 places reliance on
the case of Mohd. Ibrahim vs. State of Bihar reported as (2009)
8 SCC 751 .
31. It is submitted that the offence committed by
the petitioner also falls within the purview of the Copyright Act,
1957. It is also highlighted by reiterating that the offence under
section 63 of the Copyright Act, 1957 is a cognizable offence
which further affirms the jurisdiction of the police in the present
case.
32. The informant has adverted to the case of
State of Haryana vs. Bhajan Lal & Ors. 1992 Supp (1) SCC
335 to draw attention of this Court to the parameters for
quashing of the FIR/complaint. Further, the informant has also
placed reliance on the case of Madhavrao Jiwajirao Scindia vs.
Sambhajirao Chandrojirao Angre reported as (1988) 1 SCC
692 wherein law relating to quashing of proceedings was settled
and the same has been reiterated in the case of Robert John
D’souza vs. Stephen vs. Gomes reported as (2015) 9 SCC 96
wherein the Hon’ble Supreme Court has observed that when a
prosecution at the initial stage is asked to be quashed, the test to be
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applied by the court is as to whether the uncontroverted allegations as
made prima facie establish the offence.
33. The informant/respondent no.6 has also
placed reliance on the decisions rendered in the case of Medchl
Chemicals & Pharma (P) Ltd. vs. Biological E. Ltd. reported as
(2000) 3 SCC 269 and in the case Kamaladevi Agarwal vs.
State of West Bengal reported as (2002) 1 SCC 555 wherein the
Hon’ble Supreme Court has held that c riminal prosecution cannot
be thwarted at the initial stage merely because civil proceedings are
also pending.
34. Lastly, the respondent no.6/informant has
also relied upon the decision rendered in the case of M.
Krishnan vs. Vijay Singh reported as (2001) 8 SCC 645 and has
submitted that in the aforesaid case the Hon’ble Supreme Court
has held that while exercising the powers under Section 482 of
the Code, the High Court should be slow in interfering with the
proceedings at the initial stage and that merely because the
nature of the dispute is primarily of a civil nature, the criminal
prosecution cannot be quashed because in cases of forgery and
fraud there is always some element of civil nature.
35. I have considered the submissions of the
parties and perused the materials on record.
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36. Both, the petitioner as well as the informant
are engaged in the niche and specialised work of
political/election consultancy. The informant/respondent no.6,
had lodged a written complaint stating that, in connection with
the then ensuing Bihar Legislative Assembly Elections, he had
conceived and developed a data-driven political campaign titled
" Bihar Ki Baat ", consisting of a concept note, campaign
designs, workflow, algorithms and a body of socio-economic
data, and that, in furtherance of the campaign, he had registered
the domain name www.biharkibaat.in in the month of January of
2020. It is the allegation of the informant that one Osama
Khurshid, who had been associated with the informant as a
political activist from earlier, ceased to attend the office in
February, 2020 and left with the office-laptop containing the
said material, which he did not return despite repeated requests,
and shortly thereafter, the petitioner launched a campaign titled
" Baat Bihar Ki " and registered the domain www.baatbiharki.in
in the month of February of 2020. The specific allegation
against the present petitioner, as set out in the complaint and
reiterated in the counter-affidavit of the informant / respondent
no.6, is in two-folds: first , that the petitioner instigated and
directed co-accused Osama Khurshid to remove the laptop and
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to make over to him the data and other materials said to be
belonging to the informant and second , that the petitioner
thereafter used the said material on his website
www.baatbiharki.in and in his " Baat Bihar Ki " campaign
without the consent of the informant.
37 . Pertinently, the informant in his complaint,
based on which the present FIR came to be registered, also
states that on an earlier occasion in the year 2015, during the
State Assembly Elections of that year, the informant had shared
certain campaign designs with the petitioner in the course of
their earlier association.
38 . From the reading of the present F.I.R, it
appears that the thrust of the allegation against the present
petitioner is that he had conspired with the co-accused in order
to allegedly steal protected intellectual property of the
informant/respondent no.6 to initiate his own campaign, thereby
appropriating the intellectual creation of the informant.
Pertinently, the allegation of stealing laptop belonging to the
informant is specifically directed towards co-accused Osama
Khurshid. The informant in his written complaint dated
25.02.2025 had stated that he came to know about the alleged
conspiracy of theft of his protected intellectual property from
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the friends of the co-accused Osama Khurshid.
39 . The Hon’ble Supreme Court in the case of
Mohammed Ibrahim & Ors. vs. State of Bihar & Anr., reported
as (2009) 8 SCC 751 had distilled the law on essential
ingredients of sections 467 and 471 of the I.P.C. and held that
the condition precedent for an offence under Sections 467 and
471 is forgery . The condition precedent for forgery is making a
false document or false electronic record or part thereof. Upon a
closer analysis of section 464 of the IPC, the Hon’ble Supreme
Court had laid down the categories of false document and held
as under:-
“14.An analysis of Section 464 of the Penal Code
shows that it divides false documents into three
categories:
1. The first is where a person dishonestly or
fraudulently makes or executes a document
with the intention of causing it to be
believed that such document was made or
executed by some other person, or by the
authority of some other person, by whom
or by whose authority he knows it was not
made or executed.
2. The second is where a person dishonestly
or fraudulently, by cancellation or
otherwise, alters a document in any
material part, without lawful authority,
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after it has been made or executed by
either himself or any other person.
3. The third is where a person dishonestly or
fraudulently causes any person to sign,
execute or alter a document knowing that
such person could not by reason of (a)
unsoundness of mind; or (b) intoxication;
or (c) deception practised upon him, know
the contents of the document or the nature
of the alteration.
In short, a person is said to have made a “false
document”, if (i) he made or executed a document
claiming to be someone else or authorised by
someone else; or (ii) he altered or tampered a
document; or (iii) he obtained a document by
practising deception, or from a person not in
control of his senses.”
40 . Subsequently, the Hon’ble Supreme Court in
the case of Sheila Sebastian vs. R. Jawaharaj & Anr. , reported
as (2018) 7 SCC 581 has held as under:-
“19. A close scrutiny of the aforesaid provisions makes
it clear that, Section 463 defines the offence of
forgery, while Section 464 substantiates the same
by providing an answer as to when a false
document could be said to have been made for the
purpose of committing an offence of forgery under
Section 463 IPC. Therefore, we can safely deduce
that Section 464 defines one of the ingredients of
forgery i.e. making of a false document. Further,
Section 465 provides punishment for the
commission of the offence of forgery. In order to
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sustain a conviction under Section 465, first it has
to be proved that forgery was committed under
Section 463, implying that ingredients under
Section 464 should also be satisfied. Therefore,
unless and until ingredients under Section 463 are
satisfied a person cannot be convicted under
Section 465 by solely relying on the ingredients of
Section 464, as the offence of forgery would
remain incomplete.
20. The key to unfold the present dispute lies in
understanding Explanation 2 as given in Section
464 IPC. As Collin, J., puts it precisely in Dickins
v. Gill (1896) 2 QB 310 (DC)], a case dealing
with the possession and making of fictitious stamp
wherein he stated that “to make”, in itself
involves conscious act on the part of the maker.
Therefore, an offence of forgery cannot lie against
a person who has not created it or signed it.
21. It is observed in Mohd. Ibrahim v. State of Bihar
[Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC
751 that: (SCC p. 756, para 14)
“14. … a person is said to have made a “false
document”, if
(i) he made or executed a document
claiming to be someone else or
authorised by someone else; or
(ii) he altered or tampered a document;
or
(iii) he obtained a document by practising
deception, or from a person not in
control of his senses.”
22. In Mohd. Ibrahim, (2009) 8 SCC 751, this Court
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had the occasion to examine forgery of a
document purporting to be a valuable security
(Section 467 IPC) and using of forged document
as genuine (Section 471 IPC). While considering
the basic ingredients of both the offences, this
Court observed that to attract the offence of
forgery as defined under Section 463 IPC depends
upon creation of a document as defined under
Section 464 IPC. It is further observed that mere
execution of a sale deed by claiming that property
being sold was executant's property, did not
amount to commission of offences punishable
under Sections 467 and 471 IPC even if title of
property did not vest in the executant.
23. The Court in Mohd. Ibrahim, (2009) 8 SCC 751
observed that: (SCC p. 757, paras 16-17)
“16. … There is a fundamental difference
between a person executing a sale deed
claiming that the property conveyed is his
property, and a person executing a sale
deed by impersonating the owner or falsely
claiming to be authorised or empowered
by the owner, to execute the deed on
owner's behalf. When a person executes a
document conveying a property describing
it as his, there are two possibilities. The
first is that he bona fide believes that the
property actually belongs to him. The
second is that he may be dishonestly or
fraudulently claiming it to be his even
though he knows that it is not his property.
But to fall under first category of “false
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documents”, it is not sufficient that a
document has been made or executed
dishonestly or fraudulently. There is a
further requirement that it should have
been made with the intention of causing it
to be believed that such document was
made or executed by, or by the authority of
a person, by whom or by whose authority
he knows that it was not made or executed.
17. When a document is executed by a
person claiming a property which is not
his, he is not claiming that he is someone
else nor is he claiming that he is
authorised by someone else. Therefore,
execution of such document (purporting to
convey some property of which he is not
the owner) is not execution of a false
document as defined under Section 464 of
the Code. If what is executed is not a false
document, there is no forgery. If there is no
forgery, then neither Section 467 nor
Section 471 of the Code are attracted.”
24. In Mir Nagvi Askari v. CBI, (2009) 15 SCC 643,
this Court, after analysing the facts of that case,
came to observe as follows: (SCC p. 687, para
164)
“164. A person is said to make a false
document or record if he satisfies one of
the three conditions as noticed
hereinbefore and provided for under the
said section. The first condition being that
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the document has been falsified with the
intention of causing it to be believed that
such document has been made by a person,
by whom the person falsifying the
document knows that it was not made.
Clearly the documents in question in the
present case, even if it be assumed to have
been made dishonestly or fraudulently, had
not been made with the intention of
causing it to be believed that they were
made by or under the authority of someone
else. The second criteria of the section
deals with a case where a person without
lawful authority alters a document after it
has been made. There has been no
allegation of alteration of the voucher in
question after they have been made.
Therefore, in our opinion the second
criteria of the said section is also not
applicable to the present case. The third
and final condition of Section 464 deals
with a document, signed by a person who
due to his mental capacity does not know
the contents of the documents which were
made i.e. because of intoxication or
unsoundness of mind, etc. Such is also not
the case before us. Indisputably therefore
the accused before us could not have been
convicted with the making of a false
document.”
25. Keeping in view the strict interpretation of penal
statute i.e. referring to rule of interpretation
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wherein natural inferences are preferred, we
observe that a charge of forgery cannot be
imposed on a person who is not the maker of the
same. As held in plethora of cases, making of a
document is different than causing it to be made.
As Explanation 2 to Section 464 further clarifies
that, for constituting an offence under Section 464
it is imperative that a false document is made and
the accused person is the maker of the same,
otherwise the accused person is not liable for the
offence of forgery.
26. The definition of “false document” is a part of the
definition of “forgery”. Both must be read
together. “Forgery” and “fraud” are essentially
matters of evidence which could be proved as a
fact by direct evidence or by inferences drawn
from proved facts. In the case in hand, there is no
finding recorded by the trial court that the
respondents have made any false document or
part of the document/record to execute mortgage
deed under the guise of that “false document”.
Hence, neither Respondent 1 nor Respondent 2
can be held as makers of the forged documents. It
is the imposter who can be said to have made the
false document by committing forgery. In such an
event the trial court as well as the appellate court
misguided themselves by convicting the accused.
Therefore, the High Court has rightly acquitted
the accused based on the settled legal position
and we find no reason to interfere with the same.”
41 . The offences under sections 467, 468 and
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471 of the Indian Penal Code takes life from section 463, which
defines forgery , and from section 464, which defines a false
document . The Hon'ble Supreme Court in the aforequoted
decisions had held that for attracting the ingredients of an
offence under section 467, there must be a forgery of a valuable
security as defined in section 464 and for an offence under
section 468, there must be a forgery with intent that the
document forged shall be used for the purpose of cheating,
further for an offence under section 471, the accused must have
fraudulently or dishonestly used as genuine, a document or
electronic record, which he knew or had reason to believe to be
a forged document. The foundational requirement of each of
sections 467, 468 and 471 is therefore the prior existence of a
"false document" within the meaning of section 464, brought
into being by the accused himself. Tested against this settled
position, the present F.I.R. discloses no offence under sections
467, 468 or 471 of the Code, since there is not even a whisper of
allegation that the petitioner made, signed, sealed or executed
any document whatsoever, much less a document that could be
characterised as a false document within the meaning of section
464 IPC. The substratum of the case is the alleged use of certain
data, designs and a concept note of a political campaign, said to
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have originated with the informant through his intellect, it is not,
and has not been alleged to be the case of manufacture of any
document by the petitioner. The very ingredient on which
sections 467, 468 and 471 are predicated is therefore wholly
absent.
42 . Now, turning to whether the ingredients of
the offence of cheating are made out against the petitioner from
the reading of the F.I.R, it would be apposite to refer to a
decision of the Hon’ble Supreme Court in the case of Jupally
Lakshmikantha Reddy v. State of A.P. & Anr. reported as 2025
SCC OnLine SC 1950, had held as under:-
“12. The ingredients of the offence of cheating are as
follows:
1) Deception of a person by making false
representation which the maker knows or
has reason to believe is false and thereby
2)(a) Fraudulently or dishonestly inducing
such person:
(i) to deliver any property to any
person, or
(ii) to consent that any person shall
retain any property, or
(b) Intentionally induces that person to do
or omit to do anything which he would not
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do or omit if he were not so deceived, and
which act or omission causes or is likely to
cause damage or harm to that person in
body, mind, reputation or property.
13. The words ‘dishonestly’ and ‘fraudulently’ are
defined as follows:
“24. “Dishonestly”—
Whoever does anything with the intention
of causing wrongful gain to one person or
wrongful loss to another person, is said to
do that thing “dishonestly”.
25. “Fraudulently”—
A person is said to do a thing fraudulently
if he does that thing with intent to defraud
but not otherwise.”
Section 23 IPC defines wrongful loss/wrongful
gain:
“Wrongful gain”: Wrongful gain is gain by
unlawful means of property to which the
person gaining is not legally entitled.”
“Wrongful loss”: Wrongful loss is the loss
by unlawful means of property to which the
person losing it is legally entitled.”
Reading the ingredients in the backdrop of these
definitions, it is evident in order to attract the
offence of cheating, a person must knowingly
make a false statement which would induce
another to part with property or to do or omit to
do a thing which the latter would not do or omit
unless deceived and thereby is likely to suffer
damage/harm in body, mind, reputation or
property.
14. In Dr. Sharma's Nursing Home v. Delhi Admn.
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(1998) 8 SCC 744, this Court held mere deception
by itself would not constitute cheating unless the
other essential ingredient, i.e., dishonest
inducement is established. This Court held as
follows:
“…both the learned courts have rested
their findings on deception only and did
not go into the question whether the
complaint and its accompaniments
disclosed the other essential ingredient of
the offence under Section 420 IPC, namely,
dishonest inducement. “Dishonesty” has
been defined in Section 24 IPC to mean
deliberate intention to cause wrongful gain
or wrongful loss; and when with such
intention, deception is practised and
delivery of property is induced then the
offence under Section 420 IPC can be said
to have been committed…”
15. In Hridaya Ranjan Prasad Verma v. State of Bihar
(2000) 4 SCC 168, this Court reiterated that
Section 415 IPC contemplates two distinct
situations; the first where a person is dishonestly
induced to deliver property, and the second where
a person is induced to do or omit an act which,
but for the deception, he would not have done or
omitted. In the former, the inducement must be
fraudulent or dishonest, whereas in the latter it
need only be intentional. Therefore, intention is
the gist of the offence.”
43 . The Hon’ble Supreme Court in the cases of
Vesa Holdings (P) Ltd. v. State of Kerala , reported as (2015) 8
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SCC 293 , Lalit Chaturvedi & Ors. vs. State of Uttar Pradesh &
Anr. , reported as (2024) 12 SCC 483 ; and Mariam Fasihuddin
& Anr. vs. State & Anr. , reported as (2024) 11 SCC 733 had
settled and crystallized the position of law that in order to attract
the rigors of section 420 IPC, the prosecution must prima facie
show that there was deception practiced at the inception, and
that dishonest inducement followed therefrom, with the
consequence that delivery of property or alteration of position
by the deceived had occurred. The Hon’ble Supreme Court in
A.M. Mohan vs. State by S.H.O. & Anr. Reported as (2024) 12
SCC 181, had held as under :-
“20. This Court in R.K. Vijayasarathy v. Sudha
Seetharam (2019) 16 SCC 739 has culled out the
ingredients to constitute the offence under
Sections 415 and 420IPC, as under: (SCC pp.
745-46, paras 15-20)
“15. Section 415 of the Penal Code reads
thus:
‘ 415. Cheating .—Whoever, by
deceiving any person, fraudulently
or dishonestly induces the person
so deceived to deliver any property
to any person, or to consent that
any person shall retain any
property, or intentionally induces
the person so deceived to do or
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omit to do anything which he would
not do or omit if he were not so
deceived, and which act or
omission causes or is likely to cause
damage or harm to that person in
body, mind, reputation or property,
is said to “cheat”.’
16. The ingredients to constitute an offence
of cheating are as follows:
16.1. There should be fraudulent or
dishonest inducement of a person by
deceiving him:
16.1.1. The person so induced should be
intentionally induced to deliver any
property to any person or to consent that
any person shall retain any property; or
16.1.2. The person so induced should be
intentionally induced to do or to omit to do
anything which he would not do or omit if
he were not so deceived; and
16.2. In cases covered by 16.1.2. above,
the act or omission should be one which
caused or is likely to cause damage or
harm to the person induced in body, mind,
reputation or property.
17. A fraudulent or dishonest inducement is an
essential ingredient of the offence. A
person who dishonestly induces another
person to deliver any property is liable for
the offence of cheating.
18. Section 420 of the Penal Code reads thus:
‘ 420.Cheating and dishonestly
inducing delivery of property .—
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Whoever cheats and thereby
dishonestly induces the person
deceived to deliver any property to
any person, or to make, alter or
destroy the whole or any part of a
valuable security, or anything
which is signed or sealed, and
which is capable of being converted
into a valuable security, shall be
punished with imprisonment of
either description for a term which
may extend to seven years, and
shall also be liable to fine.’
19. The ingredients to constitute an offence
under Section 420 are as follows:
19.1. A person must commit the offence of
cheating under Section 415; and
19.2. The person cheated must be dishonestly
induced to
(a) deliver property to any person;
or
(b) make, alter or destroy valuable
security or anything signed or sealed and
capable of being converted into valuable
security.
20. Cheating is an essential ingredient for an
act to constitute an offence under Section
420.”
21. A similar view has been taken by this Court in
Archana Rana v. State of U.P. [(2021) 3 SCC
751], Deepak Gaba v. State of U.P. [(2023) 3 SCC
423] and Mariam Fasihuddin v. State of
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Karnataka [(2024) 11 SCC 733].
22. It could thus be seen that for attracting the
provision of Section 420IPC, the FIR/complaint
must show that the ingredients of Section 415IPC
are made out and the person cheated must have
been dishonestly induced to deliver the property to
any person; or to make, alter or destroy valuable
security or anything signed or sealed and capable
of being converted into valuable security. In other
words, for attracting the provisions of Section
420IPC, it must be shown that the FIR/complaint
discloses:
(i) the deception of any person;
(ii) fraudulently or dishonestly inducing
that person to deliver any property to any
person; and
(iii) dishonest intention of the accused at
the time of making the inducement.”
44 . Section 420 I.P.C. therefore stands on three
indispensable pillars, firstly , deception at inception, secondly ,
dishonest inducement, and thirdly , delivery of property by the
deceived as a consequence. To constitute an offence under
Section 420, there should not only be cheating, but as a
consequence of such cheating, the accused should have
dishonestly induced the person deceived, to deliver any property
to any person, or to make, alter or destroy wholly or in part a
valuable security or anything signed or sealed and which is
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capable of being converted into a valuable security.
45 . On perusal of the F.I.R., none of essential
ingredients are made out against this petitioner. The F.I.R. does
not contain any allegation that there ever existed a transaction
inter se the informant and the petitioner. The informant further
does not allege that the petitioner made any representation, false
or otherwise, to the informant as a consequence of which the
informant parted with any property or valuable security in
consequence of any such representation. The co-accused named
in the F.I.R., that is, one Osama Khurshid is alleged to have left
the office with the laptop of his own accord. At its highest, the
petitioner is alleged only to have used, at a later stage, the data
said to have originated with the informant. None of these
allegations even approaches the ingredients of section 415, and
none can sustain the rigors under section 420 of the I.P.C.
46 . It is not the case of the informant that any of
the accused persons tried to deceive him either by making a
false or misleading representation or by any other action or
omission, nor is it his case that they offered him any fraudulent
or dishonest inducement to deliver any property or to consent to
the retention thereof by any person or to intentionally induce
him to do or omit to do anything which he would not do or omit
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if he were not so deceived. Nor did the informant allege that the
petitioner pretended to be the informant while executing
allegedly protected intellectual property. Since the essential
ingredients of cheating as stated in Section 415 are absent, it
cannot be said that there was an offence punishable under
Sections 417, 418, 419 or 420 of the Code.
47 . Coming to the offence under section 120-B
IPC, when the substantive offences upon which the alleged
conspiracy is said to rest are held to be not attracted, therefore,
the offence of conspiracy under section 120-B could not also be
sustained since it is settled law that conspiracy cannot be
sustained where the substantive offence to which it is yoked is
itself not made out.
48 . For the foregoing discussions, this Court is
of the considered view that none of the penal sections invoked
in the F.I.R. are attracted against the petitioner in the facts of the
present case.
49 . Now, coming to the contention of the
informant/ respondent no.6 that the penal provisions invoked in
the F.I.R. are open to revision and subject to the final conclusion
of the investigation and thereafter, further subject to
independent application of judicial mind by the concerned
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Magistrate and therefore, a mere non-invocation or wrong
invocation of a penal section cannot be a ground for quashing.
However, it is a settled position of law that when the allegations
made in the F.I.R. are taken at its face value and yet, they fail to
make out even a prima facie case then the continuation of
criminal proceeding in such cases, would squarely amount to
abuse of the process of the Court and a Constitutional Court
must prevent such abuse of the process of the Court.
50 . At this stage, it would be apposite to refer to
the decision of the Hon’ble Supreme Court in the case of R.G.
Anand v. Delux Films & Ors. , reported as (1978) 4 SCC 118
wherein it has authoritatively been held that no copyright
subsists in an idea, principle, theme or subject-matter and has
held as under:-
“45. Thus, the position appears to be that an idea,
principle, theme, or subject-matter or historical
or legendary facts being common property
cannot be the subject-matter of copyright of a
particular person. It is always open to any
person to choose an idea as a subject-matter and
develop it in his own manner and give expression
to the idea by treating it differently from others.
Where two writers write on the same subject
similarities are bound to occur because the
central idea of both are the same but the
similarities or coincidences by themselves cannot
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lead to an irresistible inference of plagiarism or
piracy. Take for instance the great poet and
dramatist Shakespeare most of whose plays are
based on Greek-Roman and British mythology or
legendary stories like Merchant of Venice, Hamlet,
Romeo and Juliet, Julius Ceasar etc. But the
treatment of the subject by Shakespeare in each of
his dramas is so fresh, so different, so full of
poetic exuberance elegance and erudition and so
novel in character as a result of which the end
product becomes an original in itself. In fact, the
power and passion of his expression, the
uniqueness, eloquence and excellence of his style
and pathos and bathos of the dramas become
peculiar to Shakespeare and leaves precious little
of the original theme adopted by him. It will thus
be preposterous to level a charge of plagiarism
against the great playwright. In fact, throughout
his original thinking, ability and incessant labour
Shakespeare has converted an old idea into a new
one, so that each of his dramas constitute a
masterpiece of English literature. It has been
rightly said that “every drama of Shakespeare is
an extended metaphor”. Thus, the fundamental
fact which has to be determined where a charge of
violation of the copyright is made by the plaintiff
against the defendant is to determine whether or
not the defendant not only adopted the idea of the
copyrighted work but has also adopted the
manner, arrangement, situation to situation, scene
to scene with minor changes or super additions or
embellishment here and there. Indeed, if on a
perusal of the copyrighted work the defendant's
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work appears to be a transparent rephrasing or a
copy of a substantial and material part of the
original, the charge of plagiarism must stand
proved. Care however must be taken to see
whether the defendant has merely disguised piracy
or has actually reproduced the original in
different form, different tone, different tenor so as
to infuse a new life into the idea of the
copyrighted work adapted by him. In the latter
case there is no violation of the copyright.
46. Thus, on a careful consideration and elucidation
of the various authorities and the case law on the
subject discussed above, the following
propositions emerge:
1. There can be no copyright in an idea,
subject-matter, themes, plots or historical
or legendary facts and violation of the
copyright in such cases is confined to the
form, manner and arrangement and
expression of the idea by the author of the
copyrighted work.
2. Where the same idea is being developed in
a different manner, it is manifest that the
source being common, similarities are
bound to occur. In such a case the courts
should determine whether or not the
similarities are on fundamental or
substantial aspects of the mode of
expression adopted in the copyrighted
work. If the defendant's work is nothing
but a literal imitation of the copyrighted
work with some variations here and there
it would amount to violation of the
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copyright. In other words, in order to be
actionable the copy must be a substantial
and material one which at once leads to
the conclusion that the defendant is guilty
of an act of piracy.
3. One of the surest and the safest test to
determine whether or not there has been a
violation of copyright is to see if the
reader, spectator or the viewer after
having read or seen both the works is
clearly of the opinion and gets an
unmistakable impression that the
subsequent work appears to be a copy of
the original.
4. Where the theme is the same but is
presented and treated differently so that
the subsequent work becomes a completely
new work, no question of violation of
copyright arises.
5. Where however apart from the similarities
appearing in the two works there are also
material and broad dissimilarities which
negative the intention to copy the original
and the coincidences appearing in the two
works are clearly incidental no
infringement of the copyright comes into
existence.
6. As a violation of copyright amounts to an
act of piracy it must be proved by clear
and cogent evidence after applying the
various tests laid down by the case-law
discussed above.
7. Where however the question is of the
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violation of the copyright of stage play by
a film producer or a director the task of the
plaintiff becomes more difficult to prove
piracy. It is manifest that unlike a stage
play a film has a much broader
prospective, wider field and a bigger
background where the defendants can by
introducing a variety of incidents give a
colour and complexion different from the
manner in which the copyrighted work has
expressed the idea. Even so, if the viewer
after seeing the film gets a totality of
impression that the film is by and large a
copy of the original play, violation of the
copyright may be said to be proved.”
51 . This Court has noted that the Hon’ble
Supreme Court in the case of Krishika Lulla (supra) wherein a
script writer had alleged that his story synopsis had been
appropriated by the producer of a film and consequently, an
F.I.R. was lodged under sections 63 of the Copyright Act read
with section 406 and 420 of the Indian Penal Code. The Hon’ble
Supreme Court had quashed the F.I.R. and held as under:-
“ 12. The decisions cited on behalf of the
appellants show that it is well settled that
copyright does not subsist in a title of
work. .......
xxxxx
19. We are thus, of the view that no copyright
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subsists in the title of a literary work and a
plaintiff or a complainant is not entitled to
relief on such basis except in an action for
passing off or in respect of a registered
trade mark comprising such titles. This
does not mean that in no case can a title be
a proper subject of protection against
being copied as held in Dicks v. Yates
(1881) LR 18 Ch D 76 (CA)] where Jessel
M.R. said “there might be copyright in a
title as for instance a whole page of title or
something of that kind requiring
invention” or as observed by Copinger
(supra).
20. In the present case, we find that there is no
copyright in the title “Desi Boys” and
thus, no question of its infringement arises.
The prosecution based on allegations of
infringement of copyright in such a title is
untenable.
21. The learned counsel for the respondents
indeed contended that the applications
under Section 482 CrPC were rightly
dismissed since these facts alleged by the
appellants depend on evidence at the trial.
It is not possible to agree since it has
throughout been the case of Respondent
no. 1 Devkatta that he is claiming
copyright only in the title of the synopsis of
his story “Desi Boys” and he has not even
seen the film of the appellants nor does he
know the story. The learned counsel for the
respondent was, however, right in his
Patna High Court CR. WJC No.271 of 2020 dt.12-05-2026
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submissions that it is not necessary to
furnish all the ingredients of the complaint
and failing which the complaint is liable to
be dismissed on that ground. It is not
necessary to consider the decisions cited
by the respondents on this point.”
52 . Further again, from reading of the F.I.R., it
appears that the data asserted by the informant does not fall in
any of the categories of protected intellectual property much
less under the Copyright Act. The informant has not stated that
the subject concept note developed by the informant was
registered and therefore, its unauthorized usage would attract
penal provisions. Further, from reading of the F.I.R., it appears
that nowhere it suggests that any copyright was created for
aforesaid campaign, designs, workflow and the algorithms in
favour of the informant. The concept note, campaign design,
workflow or algorithms prepared by the informant and stored on
his laptop are incorporeal in nature and as such, de hors a
specific legal fiction and therefore, no offence of theft is made
out.
53 . It is reiterated that, from the reading of the
F.I.R. it appears that the allegation against the petitioner is of
appropriating the intellectual property of the informant asserted
to be his protected intellectual property, however, no assertion is
Patna High Court CR. WJC No.271 of 2020 dt.12-05-2026
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made with respect to the protected nature of the concept note,
campaign design, workflow or algorithms. The analogy drawn
by the informant with respect to the academic thesis drawing
from several published sources is also, in the considered opinion
of this Court, not of any consequence since a doctoral candidate
develops a novel hypothesis and generates a fresh analysis and
thereafter prepares data and analysis which is also fixed by the
unique expression of the author. A derivative work drawing
heavily from the public sources such as census reports and
economic surveys does not and could not qualify for the
protection as asserted by the informant. It is already crystallised
that there can be no copyright in an idea, subject matter or
themes. The informant can not use the phrase ‘intellectual
property’ as an incantation to invoke the rigours of criminal law.
54 . It has also not escaped the attention of this
Court that the informant has already preferred a civil action on
the very same subject matter. The informant can not therefore be
permitted to give criminal colour to the proceedings.
55 . In view of the aforesaid discussions, this
Court is of the considered view that continuation of the criminal
prosecution against the petitioner is nothing but an abuse of the
process of the Court and accordingly, this petition is allowed
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and the F.I.R. vide Patliputra P.S. Case No.94 of 2020 and all
consequential proceeding arising therefrom are quashed and set
aside qua the petitioner.
(Sandeep Kumar, J)
pawan/-
AFR/NAFR N.A.F.R.
CAV DATE 11.03.2026
Uploading Date 15.05.2026
Transmission Date 15.05.2026