Plagiarism Row : Kerala HC Grants Anticipatory Bail To Producer & Director Of 'Kantara' On Condition To Not Use 'Varaharoopam' Song

UPDATE on February 10 : Supreme Court Stays HC's Bail Condition That "Varaharoopam" Song Shouldn't Be Used

The Kerala High Court on Wednesday granted anticipatory bail to Vijay Kirgandur and Rishab Shetty, the Producer and Director respectively of the Kannada superhit movie 'Kantara' in a case under the Copyright Act 1956 over plagiarism allegations relating to "Varaharoopam" song.

Justice A. Badharudeen, while allowing the anticipatory bail plea filed by the petitioners imposed the specific condition that, 

"the petitioners shall not exhibit the film `KANTARA' along with the music `VARAHAROOPAM' in the film till an interim order or final order after addressing infringement of copyright in this matter will be passed by a competent civil court. It is made specifically clear that the petitioners also can move before the competent civil court at their instance at the earliest in this regard to have a meritorious decision as regards to the allegation of infringement of copyright, as per law". 

The petitioners were named as accused in Crime No.703/2022 of Kozhikode Town Police Station registered for offence punishable under Section 63 of the Copyright Act. The allegation was that the "Varaharoopam" song was an unauthorised copy of the  "Navarasam" song which was exhibited in `KAPPA' T.V owned by Mathrubhumi Printing and Publishing Co. Ltd and performed by Thaikkudam Bridge band. The FIR was lodged on a complaint filed by Mathrubhumi and Thaikkudam Bridge.

Denying the allegations, Kirgandur and Shetty pointed out that the complainants have already filed two separate civil suits alleging copyright infringement. The suits were found to be not maintainable by the District Courts of Kozhikode and Palakkad and the plaints were returned for presenting before the relevant Commercial Court.  The petitions filed by Mathrubhumi and Thaikkudam bridge challenging those orders are pending in High Court.

The petitioners argued that they had never exhibited the song `NAVARASAM' in the movie `KANTARA' in the name `VARAHAROOPAM' in any form. "The song `VARAHAROOPAM' is an independent creation and the same did not have any connection with `NAVARASAM'. Further, the entire allegation is within the ambit of a civil suit", it was argued.  Additionally, it was argued that the prosecution relied on the personal opinions of some viewers to hold that there was similarity between the songs, without collecting other materials.

It was submitted by the counsels for the petitioners that they were ready to co-operate with the investigation by subjecting themselves for interrogation and other purposes, and thus prayed for anticipatory bail. 

 Prosecution opposes bail

On the other hand, the Public Prosecutor opposed the anticipatory bail plea. The statements of the Senior Manager of Mathrubhumi KAPPA T.V staff, Assistant Manager DIVO Company( who are the distributors of `NAVARASAM' and `VARAHAROOPAM'), revealed that they had noticed similarity of music `NAVARASAM' and `VARAHAROOPAM' only after the same was intimated by the DIVO Company. The Assistant Manager of DIVO Company had also shared the same with both the concerned parties, and they had participated in a Google meet to settle the matter amicably. The Public Prosecutor argued that prima facie an offence punishable under Section 63 of the Copy Right Act is made out in the case, and in such circumstances, the arrest and interrogation of the petitioners would be necessary.

Court says that there are prima facie materials indicating copyright violation

The Court at the very outset, took note of the Apex Court decision in M/s Knit Pro International v. State of NCT of Delhi & Anr. (2022), which held that the offence under Section 63 of the Copyright Act is a cognizable and non-bailable offence. 

 The Court noted that the prima facie opinion collected by the Investigating Officer was to the effect that there was similarity between both songs. The Investigation Officer had also, on gathering opinion from expert, reported that `VARAHAROOPAM' is, the plagiarized and pirated version of `NAVARASAM'. 

"If so, the violation of copyright alleged by the defacto complainant could be discernible from the prosecution materials, prima facie. Thus detailed and fair investigation is absolutely necessary in this regard. Therefore, at the initial stage of investigation, this Court could not hold that there are no prima facie materials and the petitioners herein are innocent and they did not commit offence punishable under Section 63 of the Copyright Act", the Court observed. 

It further went on to hold that, 

"...releasing the accused on anticipatory bail and allowing the infringement to continue so as to permit the infringer of the copyright to take benefit out of the same, could not be done. If so, ultimately the infringer would get benefit out of the plagiarized and pirated version after infringing the copyright of another person which he obtained after long cherished hard work and intellectual application of mind. Resultantly, the copyright holder's right to enjoy benefit out of the copyright protected subject matter practically will be taken away. Therefore, while considering grant of anticipatory bail in cases of such nature, the courts should be very vigilant foreseeing all the above aspects". 

As civil litigations had been filed in this case which had been stalled due to the jurisdictional issue that is currently pending, the Court was inclined to grant the anticipatory bail with the condition that the the petitioners ought to be restrained from exhibiting the cinema `KANTARA' along with the music `VARAHAROOPAM' for a reasonable period till an interim order or final order in this regard would be passed by the competent civil court.

The Court further imposed the following other conditions apart from the aforementioned while granting the anticipatory bail:

1. "The petitioner shall surrender before the Investigating Officer for 2 days, ie. on 12.02.2023 and 13.02.2023, in between 10 a.m and 1 p.m, for interrogation. The Investigating Officer can interrogate them and on completion of interrogation within the above time specified, if they will be arrested, they shall be produced before the jurisdictional court. On such production, the jurisdictional court shall release the petitioners on bail on their executing bonds for Rs.50,000/- (Rupees Fifty Thousand Only) each with two solvent sureties each for the like amount to the satisfaction of the jurisdictional court concerned;
2.  Accused/petitioners shall not intimidate the witnesses or tamper with evidence. They shall co-operate with the investigation and shall be available for trial. They shall appear before the Investigating Officer, as and when directed;
3. 
   Accused/petitioners shall not leave India without prior permission of the jurisdictional court; and
4. Accused/petitioners shall not involve in any other offence during the currency of bail and any such event, if reported or came to the notice of this Court, the same shall be a reason to cancel the bail hereby granted".

The anticipatory bail was thus granted on these grounds.

Advocates Anoop V. Nair, E. Adithyan, and Rohan Mammen Roy appeared on behalf of the petitioners. 

Case Title: Vijay Kirgandur & Anr. v. State of Kerala & Anr. 

Citation: 2023 LiveLaw (Ker) 73

Click Here To Read/Download The Order