In a significant ruling, the Supreme Court has quashed proceedings against Sujoy Ghosh in the Kahaani 2 dispute. Khushi Krishania writes on the Supreme Court order and explains how weak copyright infringement claims can spiral into unwarranted criminal proceedings. Khushi is a third-year B.Sc. LL.B. (Hons.) {Cybersecurity} student at the National Law Institute University, Bhopal, with a particular interest in the intersection of copyright and data protection law.
SpicyIP Tidbit: When The Twist Beats The Script: Supreme Court Quashes Section 63 Proceedings Against Kahaani 2 Director
By Khushi Krishania
On March 20, the Supreme Court gave relief to noted film director Sujoy Ghosh in a long-standing copyright infringement criminal case. The matter pertains to the sequel of the hit 2012 movie Kahaani, titled “Kahaani 2: Durga Rani Singh”. Kahaani is a mystery thriller where actress Vidya Balan portrayed the role of a pregnant woman who goes in search of her missing husband. The film, written, directed, and produced by Sujoy Ghosh, won the National Award for Best Screenplay in 2013. It is quite common for a widely acclaimed film to have a sequel, and so Kahaani 2: Durga Rani Singh followed in 2016. Umesh Prasad Mehta (“the complainant”) filed a case against Sujoy Ghosh on the ground of copyright infringement under Section 63 of the Copyright Act, alleging that Kahaani 2 had infringed the copyright in his script titled Sabak.
According to the complainant, he travelled to Mumbai in 2015 and met Sujoy Ghosh and one Prabhat Kumar Thakur (the alleged owner of the Western India Film Producers Association) to seek a recommendation letter required for registering a film script, and left a copy of Sabak with Sujoy Ghosh. On watching the film when it was released, he felt it bore multiple similarities to his script, and accordingly filed a complaint before the Screen Writers Association (SWA) Dispute Settlement Committee and, during its pendency, before the Chief Judicial Magistrate (CJM) of Hazaribagh.
The CJM, after recording the statements of the complainant’s brother and cousin, held that a prima facie case under Section 63 (offence of infringement of copyright) was made out and issued summons against Sujoy Ghosh. This order was challenged before the Jharkhand HC under Section 482 CrPC (now Section 528 of BNSS). The HC dismissed the petition, holding that the Magistrate’s role at the summoning stage is limited to ascertaining sufficient grounds, and the complaint’s allegations will be tested at trial.
The matter then reached a two-judge bench of the Supreme Court. The SC held that the CJM’s summoning order was passed in a mechanical manner, suffered from the vice of non-application of mind, as it failed to record the satisfaction that there is any similarity between the competing works. It further rebuked the High Court, noting that it too had failed to appreciate that the summoning order was passed without any application of mind and in the absence of sufficient material on record. Noting the above, the apex court not only set aside the summoning order by the Hazaribagh court and the order of the High Court, but also quashed the criminal complaint pending before the Hazaribagh court against the director.
So, What was the Twist in This Case?
The Court found that Sujoy Ghosh had registered the full script of the film then titled Karaar on 02.12.2013. The complainant only went to Mumbai on 29.06.2015 and registered his script on 31.07.2015. Sujoy Ghosh’s work thus clearly preceded the complainant’s script, and the question of copyright infringement could not arise, since the complainant’s script was not even in existence when the appellant had registered his screenplay.
More remarkably, while the matter was pending before the Hazaribagh court, the SWA Dispute Settlement Committee, comprising domain experts on February 24, 2018 had already examined both works and found no similarity between the film and the script. As held in R.G. Anand v. M/s Delux Films and Others, one of the surest and safest tests for copyright infringement is whether a viewer, having seen both works, gets an unmistakable impression that the subsequent work is a copy of the original. The complainant and his witnesses concealed the SWA order from the CJM. That said, the blame cannot rest solely with the complainant.
Courts have an independent duty to examine all material on record, especially something as fundamental as the registration dates of the works. The SC acknowledged this and held that merely scanning the complaint for the ingredients of an offence is not sufficient, especially where the accused has argued that proceedings are manifestly frivolous or vexatious. In such cases, the Court must look beyond the averments, examine all attending circumstances on record, and read between the lines where necessary. Section 482 CrPC and Article 226 empower the Court to take into account the broader circumstances surrounding the initiation of the case, as well as the materials collected during the investigation.
The answer here also lies in understanding the threshold for a prima facie case in criminal proceedings. The Magistrate at the summoning stage is only required to find “sufficient grounds to proceed” and not to evaluate evidence as a trial court would, which is a much more limited inquiry than the prima facie requirement of “possibility of success” in a civil injunction.
The High Court leaned heavily on this restraint, holding that the facts were incomplete, the evidence had not been fully collected, and the issues were too complex to be resolved at a preliminary stage. It held that the scope of inquiry under Section 482 CrPC is narrow and that an order issuing process ought not to be interfered with in light of the facts. However, the prima facie requirement does not ignore what is already on the record. The Court in the present case recognised that summoning an accused in a criminal matter is a serious step and that criminal law cannot be set into motion as a matter of course. Since neither of the complainant’s witnesses could identify any similarity between the film and the script, it was held that when an accused seeks quashing of criminal proceedings on the ground that they are manifestly frivolous, vexatious, or malicious, the Court is duty bound to examine the matter with greater care.
This case highlights the issue with introducing criminal proceedings to address the issue of copyright infringement. As noted by Kimberlee G. Weatherall, these remedies make sense in the case of large –scale piracy etc. However, in cases such as these, wouldn’t it make more sense for the parties to fight it out in civil courts and eventually pay up the damages if found guilty? Interested readers can check out some of our previous posts on why criminal remedies for copyright infringement are a bad idea here, here, here, here, and here.