Can't Order Further Investigation For Second Time If Relevant Materials Already On Record: Calcutta High Court

The Calcutta High Court on Wednesday dismissed the revision petition filed by film director Somnath Gupta against Sessions Court order dismissing his prayer for second further investigation into alleged ‘piracy’ of his film “O-Kay…? At Night in the Forest”.

The criminal case was registered in 2015 under various provisions of the IPC and the Indian Copyright Act, 1957. Gupta claimed the initial probe into the origin of pirated CD was not proper and alleged that police were unwilling to investigate even after the first order for further investigation.

However, a single-bench of Justice Shampa (Dutt) Paul held that further investigation could not be ordered for the second time, if sufficient relevant material had already been placed on record. It opined:

“Thus keeping with the view of the Supreme Court in Romila Thapar Vs Union of India (Supra), Vinubhai Haribhai Malaviya Vs The State of Gujarat (Supra), Devendra Nath Singh Vs State of Bihar & Ors. (Supra), the prayer for further investigation for the Second time cannot be allowed as the relevant materials are already on record and the order of the learned Magistrate dated 07.05.2018 and the order under revision dated 21.02.2019 are in accordance with law. In the present case this court finds that the materials on record vis a vis the charge sheet proves that the investigation has been conducted in a fair manner and is prima facie not mala fide and thus the charge sheet filed is in accordance with law. Accordingly cognizance taken is also in accordance with law. There is thus no scope for interference in respect of the order under revision.”

Gupta claimed to hold producer’s license for the film which was licensed by Central Board of Film Certification (CBFC) in January 2015. He alleged that a 'censor copy' of the film was handed over to the actress (Respondent no. 2) on her request, which she failed to return. Subsequently, in March 2015, Gupta claims he came to know that the said censor copy was being sold in a DVD shop in Uttarpara and accordingly, a criminal complaint was lodged against the shopkeeper.

Gupta submitted that during investigation, the police came across huge numbers of pirated CDs and DVDs including the pirated censor copy of his film. He claimed the shopkeeper also sold him the censor copy of original DVD which was handed over to Respondent no.2 in good faith. He argued that police investigated the matter only against the shopkeeper and did not probe the origin of the pirated CDs, or at whose instance they were pirated, distributed and sold in the market.

Gupta said he had filed another criminal case for a detailed investigation into the aforesaid issue, but even after an order for further investigation by the Magistrate court, the IO did not make any attempt to investigate, but instead allegedly demanded a bribe of Rs 2 lakh from him. Aggrieved, he moved the High Court invoking writ jurisdiction.

Gupta said during the pendency of his petition and in disregard of the principles under Section 173(2)(ii) of CrPC, the charge sheet in his criminal case was submitted without the IO informing him. Subsequent motions moved by him for further investigation were rejected by the concerned Magistrate and then by the Sessions Court.

State Counsel on the other hand submitted that investigation in the case had concluded and charges were framed against the accused back in December 2017.

It was further noted that when the writ petition was called for hearing in 2017, none appeared for the petitioner and that petition was disposed of in August 2017 with a report by the police authorities reflecting that charge sheet had been filed against all accused in the criminal case.

Upon perusing the materials on record, and noting the various decisions passed by the Apex Court on the issue of further-investigation, the Bench concluded:

“On perusal of the materials on record including the case diary, it appears extensive seizure has been made in this case. Expert opinion is also part of the case diary along with statements recorded. Further investigation has been conducted by DEB, Hooghly and Charge Sheet has been filed on 31.07.2016. As per report of the State, charge has been framed on 21.12.2017. The case has been fixed for evidence The Sessions Court dismissed the revision and affirmed the order of the learned Magistrate. The revisional application being CRR 945 of 2019 is accordingly dismissed. The order dated 21.02.2019 passed in Criminal Motion being No.199 of 2018 (Somnath Gupta vs. Kumkum Dey & Ors.) passed by the learned Additional District & Sessions Judge (1st Court) at Serampore, is hereby affirmed.”

Coram: Justice Shampa Dutt (Paul)

Case: Somnath Gupta Vs. State of West Bengal & Ors

Citation: 2023 LiveLaw (Cal) 196

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