acquittal =Long ago, in England, Lord Justice GODDARD in WOOLMEINGTON Vs. DIRECTOR OF PUBLIC PROSECUTIONS (1935 AC 462), held that onus is upon the prosecution to prove the offence alleged to have been committed by the accused beyond all reasonable doubts. This has become the core of the Anglo-Saxonic Criminal Jurisprudence. 49. Since then there is no shifting of this primary duty cast upon the prosecution. The Indian Legal System is also wedded to this basic principle of English Criminal law. Even, now this is the position of Criminal law in India except to the extent statutorily excluded. For instance, offences against women (Section 113-A, 113-B, Indian Evidence Act, 1872). 50. The necessary corollary is suspicion, however, strong may not take the place of legal proof. A finding of a Criminal Court is acceptable only when it is supported by legal and valid evidence. Dehors that, it deserves rejection lock, stock and barrel.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/01/2012 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR And THE HONOURABLE MR. JUSTICE P. DEVADASS Criminal Appeal (MD) No.394 of 2010 Sanjeevan alias Reghu .. Appellant v. The State of Tamil Nadu Rep. By its Inspector of Police Puthukadai Police Station Puthukadai Kanyakumari District. .. Respondent Appeal filed under Section 374 of the Criminal Procedure Code against the judgment of the learned Sessions Judge, Kanyakumari District at Nagercoil in S.C. No.156 of 2007 dated 24.06.2010. !For Appellant ... Mr. N. Dilip Kumar ^For Respondent ... Mr. K.S. Durai Pandian, APP :JUDGMENT P. DEVADASS.J. 1. The appellant Sanjeevan @ Reghu is the accused in S.C. No.156 of 2007, in the Court of Sessions Judge, Kanyakumari Sessions Division at Nagercoil. In this appeal, he challenges, his conviction under Sections 377 and 302 IPC and the sentences imposed upon him. 2. He stood charged under Sections 377, 302 and 201 IPC for having committed sodomy on the boy Legies, for having murdered him and for having concealed his dead body in order to screen himself from legal punishment. 3. After trial, the learned Sessions Judge convicted and sentenced him as under: Sl.No. Conviction Sentence 1. S.377 IPC 10 years Rigorous Imprisonment and fine Rs.15,000/-, in default, undergo simple imprisonment for one year. 2. S. 302 IPC Life Sentence and fine Rs.15,000/-, in default, one year simple imprisonment. The learned Sessions Judge directed that the said sentences shall run concurrently and out of the total fine amount ordered payment of Rs.25,000/- as compensation to PW.1 Lawrence, the father of the deceased boy. 4. The prosecution case proceeded as under:- (1) PW.1 Lawrence and Gresi are spouses. Their sons are Lenies, Lebies and Legies. They are residing in Vannan Vilai, Puthukkadai in Kanyakumari District. Their third son, Legies, is about 13 years old. He was studying VII Standard in St.Mary's Middle School in Puthukkadai. (2) The appellant is also residing nearby. He is a mason. He was married to Geetha Malar. They are having two daughters. There was no love last between the spouses. She left him with the children. He is residing lonely in his newly constructed house. (3) Legies is already known to the appellant. The appellant wanted to satisfy his sexual appetite through him. He was waiting for an opportunity. (4) PW.5 Raviraj, is residing in Panainerunchi Villai, Puthukkadai. On 2.9.2006, around noon, when he was crossing appellant's house, he heard Legies' crying, 'brother open the door'. Appellant opened the door. The boy came out. Appellant told him to come soon, he would give him money for buying ice-cream. Thereafter, PW.5 left for his house. Around 3 pm., in his house, the boy had shower. Then left his house. (5) PW.2 Maria Packiam is also residing in Vannan Vilai, Puthukkadai. She used to collect chit amounts near the Roman Catholic Church in Puthukkadai. On 2.9.2006, after collecting the chit amounts, around 3.10 pm, she came near the appellant's house. She heard shriek from his house. Within few minutes, appellant came out of his house. Closed the doors. PW.2 asked him what had happened. He replied her nothing and left. (6) Around 6 p.m., at the R.C. Church, PW.1's wife and sons Lenies and Lebies told him that Legies is missing. PW.1 enquired the Dance Teacher Adaikala Mary. She told him Legies did not come to dance class. Till night, the boy did not return home. (7) On 3.9.2006, at about 9 a.m., at the south western corner of Amirthain's land, the dead body of Legies was found. It was half naked. No dress below the hip. The dead body was found with shirt (MO.1) and the electronic watch (MO.2). PW.1 seen the dead body of his son. (8) At about 10 a.m., at the Puthhukkadai Police Station, PW.1 gave Ex.P1 complaint to PW.17 Ramesh Babju, Sub Inspector of Police. He registered a case of suspicious death under Section 174 Cr.P.C (Ex.P.19 FIR). PW.17 sent the FIR through PW.13 Head Constable, Joseph Raj to Judicial Magistrate No.II, Kuzhithurai. Since the Magistrate was on leave, around 12.40 am., he handed over the FIR to the Incharge-Judicial Magistrate, Thucklay. (9) On receipt of a copy of FIR, Subramony, Inspector, Puthukkadai Police Station took up his investigation. [Subramony is no more. Since PW.17 assisted him in investigating this case and knows his signature, PW.17 also has been examined to speak to Subramony's investigation of this case]. (10) At about, 10.30 a.m., at Amirtainan's land, in the presence of PW.3 Henrydhass and one Justin Paulraj, Inspector Subramony prepared Ex.P.2 Observation Mahazar-1. Recovered six bloodstained dried jack-fruit tree leaves (MO.3) under Ex.P.3 Mahazar. Drew rough sketch-1 (Ex.P.20). Examined the witnesses. Recorded their statement. In the presence of Panchayathars, held inquest over the dead body (Ex.P.21 Inquest Report). Sent the dead body through PW.14 Head Constable, Sobana Kumar with Ex.P.10 requisition to the Government Medical College Hospital at Asaripallam, Nagercoil for autopsy. (11) At about 3.30 p.m., PW.10, Dr. Velmurugan, conducted autopsy. He noted the following :- Appearances found at the post-mortem: Moderately nourished boy of a male with finger and toe nails blue in colour. Postmortem ant bite marks seen over the front of neck and chest. Eggs of flies found laid around the mouth, neck and groins. Dried blood stain seen over both nostrils, mouth, cheek and eyes. Anus found relaxed. Ante-mortem injuries: 1. Abrasion with contusion 4 x 2 cm over the left eyelid. The lid edematous. 2. 5 x 4 cm abrasion seen over right side of forehead. 3. Abrasion with contusion 6 x 5 cm over right cheek. 4. Abrasion 5 x . cm over the neck. 5. Abrasion 10 x 5 cm over right cheek. 6. Abrasion 6 x 4 cm over left side of cheek. 7. Abrasion with contusion 6 x 2 cm over right shoulder. 8. Abrasion 5 x 4 cm middle of chest. 9. Scratch abrasion of varying sizes over an of 20 x 12 cm over the front of left thigh. 10. Abrasion 4 x 2 cm over the front of middle of neck. 11. Abrasion 2 x 2 cm front of left knee. Chest and Abdomen: Bruising seen over upper half of sternum. About 100 ml of blood with clots seen in the thoracic cavity. Heard contused, both lungs contused. Contusion seen on inner aspect of ribs on the right side. About 200 ml of blood with clots seen in the abdominal cavity. Contusion of right lobe of liver note. Retro peritoneal clots seen over both sides of abdomen. Part of Duodenum and colour contused. Scalp Skull & Dura: Scalpal bruising with contusion over frontal, right parietal and temporal regions. The right temporal is muscle found bruised. Diffused sub Drual Haemorrhage, Sub Arachnoid Haemorrhage seen over both cerebral hemispheres. On thin dissection of neck bruising seen over inner aspect of neck. Hyoid bone: Intact. Stomach: About 250 gms of partially digested identifiable food particles (rice, banana and tender coconut with pungent odour. Mucosa congested). (12). PW.10 opined that the boy would appear to have died of multiple injuries and sequlae (Ex.P.12 final opinion). (13). On 16.9.2006, PW.7 Chandra, VAO, Painkulam was holding additional charge of Arudesam village. On 16.9.2006, in his office, at about 9.30 a.m., appellant gave him Ex.P.5 confession that on the evening of 2.9.2006, in his house, he had sodomised Legies, killed him and during night thrown away his dead body in the nearby land. PW.7 recorded it. Appellant signed it. PW.8 George and Vijayakumar, Village Assistants, attested it. (14). At about 10.30 a.m, at the Puthukkadai Police Station. PW.7 handed over the sodomite and Ex.P.5 extra-judicial confession to Inspector Subramony. He arrested him. Altered the section of law to Section 302 and 201 IPC. Sent the alteration memo to the court. (15). Appellant gave Ex.P.6 confessional statement to the Investigating Officer that if he is taken to certain places, he would show him the occurrence place, places where the dead body, boy's dress and his lungi, blanket and two empty tender coconuts were kept. (16). From Ponnappan's land, appellant produced an ash colour pant (MO.4). The Inspector seized it under Ex.P.7 Mahazar in the presence of PW.8 and Vijayakumar. (17). The appellant took the Investigating Officer to his house. In the presence of PW.4 Yesudhas and one Subash, the Inspector prepared Ex.P.4 Observation Mahazar-II. Drew Ex.P.22 Rough Sketch -II. He produced hair pieces (MO.6), woollen blanket (MO.7) and lungi (MO.8). In the presence of said witnesses, the Inspector seized them under Ex.P.9 Mahazar. (18). Through Court, the Inspector sent his requisition to conduct potency test to the accused (Ex.P.14 Court's letter). With the consent of appellant, PW.11 Dr.Rajesh conducted the test. He opined that the appellant was capable of performing sexual intercourse (Ex.P.13 Certificate). (19). The Inspector produced the appellant to the Judicial Magistrate for judicial custody. Sent the case-properties to the Lab through Court, for analysis. The Serologist found blood in MO.1 shirt (Ex.P.17). (20). Concluding his investigation, the Inspector filed Final Report for offences under sections 377, 302 and 201 IPC. 5. Prosecution examined PWs 1 to 17, marked Ex.P1 to 23 and exhibited MOs 1 to 8. 6. Placing reliance on the various circumstances projected by the prosecution through PWs.2 and 5. Ex.P.5 extra-judicial confession and Section 27 Evidence Act recoveries, on 24.6.2010, the learned Sessions Judge, came to the conclusion that the appellant committed buggery on the catamite Legies, killed him and thus convicted him under section 377 IPC and under section 302 IPC and sentenced him as already stated. 7. The said findings and sentences were assailed by Mr.N.Dilip Kumar, learned counsel for the appellant as under :- 1) The findings of the trial court are sans any legal evidence. 2) None of the circumstance has been proved. 3) PWs.2 and 5 did not tell anybody that they have seen the deceased near the appellant's house. They are liars. 4) There must be medical evidence that the appellant had committed pederasty. But, there is no medical evidence. The medical evidence let in is also contrary to the allegations made against the appellant. 5) The extra-judicial confession is false and not voluntary. That has been forcefully obtained with the assistance of obliging witnesses PWs.7 and 8 to fasten criminal liability to appellant. 6) Section 27 Evidence Act recovery is consequent upon the said concocted extra-judicial confession. 8. Per contra, Mr. K.S. Durai Pandian, learned Additional Public Prosecutor submitted that appellant had exhibited his virile behaviour by having anal intercourse with a young boy and to conceal his such human depravity, silenced him once for all. The boy suffered cruel death at his hands. He confessed to his crime to PW.7, VAO. It is voluntary and reliable and also has been corroborated by PW.8. There is medical evidence and also recovery of incriminating articles from the appellant's house. All goes to show that the appellant is the person who is responsible for the boy's untimely death. 9. P.W.1 is residing with his family in Vannan Vilai Veedu in Puthukkadai in Kanyakumari District. His third son, Legies, about 13 years old was studying VII Standard in St.Mary's Middle School in Puthukkadai. From the evening of 2.9.2006, the boy was missing. On the next day, at about 9 a.m., his half-naked dead body was found in one Amirthaian's land in Vannan Vilai. 10. The appellant is accused of, after committing sodomy on the boy, killed him and on the night stealthily disposed of his body in one Amirthaian's land in Vannan Vilai. 11. There is no ocular witness to these serious allegations. To establish the charges against the appellant, prosecution relied on several circumstances. According to prosecution, they are incriminating in nature and goes to inculpate the appellant with the offences alleged as against him. 12. In Krishnan v. State represented by Inspector of Police (2008 (4) Supreme 25), on the aspect of circumstantial evidence, Hon'ble Supreme Court observed as under :- "This Court in a series of decisions has consistently held that, 'when a case rests upon the circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence'. (See Gambhir v. State of Maharashtra AIR 1982 SC 1157)". 13. Recently, in Kulvinder Singh and another v. State of Haryana, (2011) 5 SCC 258, Hon'ble Supreme Court observed as under: " It is a settled legal proposition that conviction of a person in an offence is generally based solely on evidence that is either oral or documentary, but in exceptional circumstances conviction may also be based solely on circumstantial evidence. The prosecution has to establish its case beyond reasonable doubt and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The same should be of a conclusive nature and exclude all possible hypothesis except the one to be proved. Facts so established must be consistent with the hypothesis of the guilt of the accused and the chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (Vide Sharad Birdhichand Sarda v. State of Maharashtra and Paramjeet Singh v. State of Uttarakhand.)". 14. Thus, each circumstance must be proved beyond all reasonable doubts. [See Sanatan Naskar and Another vs. State of West Bengal (2011) 1 MLJ 687 (Crl.) (SC).] The proved circumstances must form a complete chain unerringly proceeding towards the only conclusion that the accused is the author of the crime excluding any hypothesis of innocence in his favour. There should not be any missing link. 15. To inculpate the appellant, prosecution relies on the following circumstances :- i. On the occurrence day, PW-5 has seen the boy shouting from the appellant's house. ii. On the occurrence day, PW-2 heard strange shriek from the appellant's house. iii. Medical evidence. iv. Extra-judicial confession of the appellant. v. Section 27 Evidence Act recovery of MOs 4,5, 7 and 8. 16. PW.5 Raviraj, is residing in Panainerunchi Vilai in Puthukkadai. His evidence is that, on 2.9.2006, around 2 pm., while he was crossing appellant's house, near the southern side window, in the house, the boy Legies was crying, "brother open the door, brother open the door". Appellant opened the door. The boy came out. He told him to return soon and he would give him money for buying ice-cream. After noticing this, PW.5 left the place. On the next day, at about 9 a.m., the half naked dead body of the boy was found in Amirthaian's land. 17. PW.5, is a close relative of the deceased boy. PW.5 's house is at about 100 ft. away from Puthukkadai Police Station. Puthukkadai bus stand is also nearby. Because of such a death of the boy, the whole village plunged into deep sorrow. PW.5 was available in the village. He did not tell this tell-tale circumstance to anyone till 6.9.2006, when the police enquired him. His statement recorded under section 161 CrPC, was also sent to Court only on 9.1.2007 along with the Final Report. In the circumstances, we cannot place reliance on his such evidence. 18. The next incriminating circumstance has been projected through the evidence of PW.2 Maria Packiam. She is residing in Vannan Vilai Veedu in Puthukkadai. It is very near to the boy's residence. She used to collect chit amounts at the Roman Catholic Church in Puthukkadai. It is her evidence that on 2.9.2006, at about 2.30 p.m., while she came near the appellant's house, she heard unusual shriek from his house. Within few minutes, the appellant came out, closed the door and started proceeding. When she asked him, what had happened, he replied her nothing and left. On the next day morning, she heard that the boy, Legies was found dead. 19. PW.2 did not say it is the shriek of a boy. On the next day morning, though the whole village knows about the cruel death of the boy, PW.2 did not tell that tell-tale circumstance to anyone till 19.09.2006, when police enquired her. Her statement also reached the Court along with Final Report only on 9.1.2007. Thus, she does not inspire confidence in her. It is quite unsafe to act upon her evidence. This circumstance spoken to through her also has not been established. 20. For a charge under Section 377 IPC, medical evidence is required. It involves medical examination of the appellant and the boy. The boy is dead. His dead body was examined to see whether he was sexually abused. 21. Modi, in his Text Book, 'Medical jurisprudence and Toxicoloy', 24th edition, Wadhwa Publication, at page 682, with regard to medical evidence in cases of unnatural sexual offences under Section 377 IPC comments as under:- "Examination of the Passive Agent" (in this case the boy) (i) Abrasions on the skin near the anus with pain in walking and on defecations, as well as during examination. These injuries are extensive and well defined in cases where there is a great disproportion in size between the anal orifice of the victim and the virile member of the accused. Hence, lesions will be most marked in children, while they may be almost absent in adults when there is no resistance to the anal coitus. These injuries, if slight heal very rapidly in two or three days. (ii) Owing to strong contraction of the sphincter the penis rarely penetrates beyond an inch, and consequently, the laceration produced on the mucous membrane within the anus with more or less effusion of blood is usually triangular in nature, having its base at the anus and the sides extending vertically inwards into the rectum. (iii) Blood may be found in or at the anus, on the perineum or thighs and also on the clothes. (iv) Semen may be found in or at the anus, on the perineum, or on the garments of the boy too young to have seminal emissions. Examination of the Active Agent: (the appellant) Non conclusive signs are evident, unless the man is examined soon after the commission of the crime. In that case, there may be an abrasion on the prepuce, glans penis, or fraenum, and stains of faecal matter or lubricant may be found on the penis or on the loincloth or trousers. Where no semen was found on the clothes, either of the accused or of the boy, and no, injuries were found on their persons, a case of unnatural offence was not made out [Ganpat v. Emperor, AIR 1918 Lah 322]." 22. Thus, forcible anal intercourse by an adult man with a boy will have the presence of bloodstains around anus area. At the material time when the virile behaviour of the appellant arose and indulged in homosexual activity in all probability the appellant was prone to ejaculate and there will be presence of semen in his private part area. In such circumstances, possibility of presence of semen in his clothes generally be expected unless the clothes were washed or active steps were taken to cause the disappearance of evidence of sexual violenc. But, in this case, appellant did not wash his clothes. 23. In Ex.P.5 Extra-judicial confession, it is mentioned that the appellant had attempted to sodomise the boy and the boy avoided him. The sexual desire in the appellant arose. When the boy shouted at him, the appellant gagged him, pinned him down on the ground, removed his pant, inserted his penis into his anus. 24. On 3.9.2006, PW.10 Dr.Velmurugan conducted autopsy on the dead body of the boy. In Ex.P.11, Post-mortem certificate, PW.10 mentioned that "the anus found relaxed". PW.11 Dr. Rajesh examined the appellant and mentioned that the appellant's penis length is 9 c.m., circumference is 9 c.m. He is 35 years old. (Ex.P.13 Certificate). The boy was only 13 years old. PW.10 did not see any bloodstains around the boy's anal area, no injury or rupture in the thigh area, buttocks adjacent to the anal area. 25. PW-10's evidence also suggests that if forcible carnal intercourse was attempted, there would be rupture of the anal entry point but when he examined the boy, he did not find any injury in the anal area. When one dies there will be discharge of gas through all the openings in the body such as nostrils and anal. In such circumstances, the exit entry of the anal canal used to get relaxed. It is due to the discharge of gas from inside the dead body through the anal orifice. In his cross-examination, PW.10 confirms that the anal having been found relaxed may be due to various reasons. PW.10 did not say positively that it is because of anal intercourse attempted or completed on the boy. 26. In Ex.P.5 Extra Judicial confession, it is mentioned that when the boy started shouting, the appellant pressed the boy's neck, pushed his head on the wall, pushed him down, kicked on his neck and abdomen repeatedly. So, by these over acts, there should have been fracture in skull, internal and external rupture, internal injury in the abdomen. 27. PW.10 found no injury on the head, area just inside the abdomen in the dead body. Thus, there is no medical evidence as to the alleged commission of unnatural offence on the boy and killing him thereafter as stated in Ex.P.5 Extra-Judicial confession. 28. The next incriminating circumstance relied on by the prosecution is extra-judicial confession of the appellant. It is stated that on 16.9.2006, at about 9.30 a.m., before PW.7 Chandra, VAO, Painkulam, appellant surrendered and requested him to save him and gave confession admitting his guilt and that was attested to by PW.8 George and Vijayakumar, Village Assistants. 29. Nowhere in his Indian Evidence Act, 1872, Sir James Fitz James Stephen employed the phraseology "extra-judicial confession". However, the phrase, "confession", is employed in Sections 25 to 29 of the Act. Section 17 of the Act defines, "Admission". Confession is also a form of admission. It may be either culpatory or non-culpatory. No amount of confession made to police is admissible except to the extent provided in Section 27 of the Evidence Act, namely, so much of information distinctly relates to the discovery of a fact. Admission of guilty, in other words, confession by the accused is best form of evidence. The concept of extra-judicial confession emanated from Section 24 of the Act. As to its reliability, there are certain parameters or conditions precedent. 30. In State of Rajasthan v. Raja Ram, (2003) 8 SCC 180, it was observed as under :- "An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility." 31. In S. Arul Raja v. State of Tamil Nadu, (2010) 8 SCC 233, popularly known as Aladi Aruna murder case, on the aspect of extra-judicial confession, our Hon'ble Apex Court observed as under :- " The concept of an extra-judicial confession is primarily a judicial creation, and must be used with restraint. Such a confession must be used only in limited circumstances, and should also be corroborated by way of abundant caution. This Court in Ram Singh v. Sonia has held that an extra- judicial confession while in police custody cannot be allowed. Moreover, when there is a case hanging on an extra-judicial confession, corroborated only by circumstantial evidence, then the courts must treat the same with utmost caution. This principle has been affirmed by this Court in Ediga Anamma v. State of A.P and State of Maharashtra v. Kondiba Tukaram Shirke". 32. In Sk. Yusuf v. State of W.B.,(2011) 11 SCC 754, at page 762, on the aspect of extra-judicial confession, the Honourable Supreme Court has observed as under :- "The Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and requires appreciation with great caution. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that the accused is the perpetrator of the crime. The "extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility". (See State of Rajasthan v. Raja Ram and Kulvinder Singh v. State of Haryana.)." 33. Keeping the above guidance in our mind, now we shall approach the Extra-judicial confession pressed into service in this case. 34. In Ex.P.5, appellant gave his full life history, details of his children, his mother, his wife, his dispute with her, their living away from him, his job abroad, his construction of a new house in Vannan Vilai Veedu, how he developed acquaintance with the boy Legies, the boy's family details, his carnal activity towards the boy, the buggery committed on the boy, his murdering of him, stealthily disposing of his dead body and his appeal to VAO to save him. In his evidence, PW.7 Chandra VAO reiterated the above minute details. 35. The appellant belongs to Vannan Vilai in Puthukkadai. It comes under the jurisdiction of VAO, Arudesam Village. PW.7 is the VAO of Painkulam Village. Vannan Vilai does not belong to his jurisdiction. On 16.9.2006, he is stated to have held additional charge of Arudesam village. At the village level, the post of VAO is very important, as he has to discharge and attend to multifarious functions. So, VAO of one area cannot simply come and occupy the chair of another VAO. No written proof from a superior officer, such as Tahsildar, placing PW.7 in additional charge of VAO, Arudesam village has been produced. 36. Till 16.09.2006, PW-7 is an utter stranger to the appellant. Appellant had no prior acquaintance with him. Nothing has been produced or explained as to the appellant reposing confidence in such a stranger/ PW.7 to reveal everything to him. Ex.P-5 contains photographic details of the whole life history and all the matters pertaining to the prosecution case. According to prosecution, then the appellant was in distress. It is unlikely that a person placed in such a sorrowful situation will choose an utter stranger to recount from A to Z concerning commission of sodomy and murder. In the circumstances, it looks very odd. 37. In Jaspal Singh v. State of Punjab, (1997) 1 SCC 510, at page 513, the Hon'ble Apex court held that the prosecution has to show as to why and how the accused had reposed confidence on a particular person to give the extra-judicial confession. 38. In Ravi @ Ravichandran and another v. State, through the Inspector of Police, Steel Plant Police Station, Salem, 2007 (1) LW (Crl.) 555, it was observed as under : " But, in this case, it is found that there is no evidence to show that the Village Administrative Officer was known to A.1. Unless a person trusts another, there is no question of unburdening his heart to such a person. Therefore, we straight away reject the untrustworthy testimony of the Village Administrative Officer, PW.9 that A.1 voluntarily confessed the crime to him.' 39. In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438, the Hon'ble Apex court held as under : " The first and foremost aspect which needs to be taken note of is, that PW.9 is not a person who had intimate relations or friendship with the appellant. PW.9 says that he knew the appellant "to some extent" meaning thereby that he had only acquaintance with him. In cross- examination, he stated that he did not visit his house earlier and that he met the appellant once or twice at the bus-stand. There is no earthly reason why he should go to PW.9 and confide to him as to what he had done.' 40. In Sunny Kapoor v. State (UT of Chandigarh), (2006) 10 SCC 182, it was observed as under : "It is wholly unlikely that the accused would make extra-judicial confession to a person whom they never knew. It also appears to be wholly improbable that unknown persons would come to seek his help unless he was known to be close to the police officers. His statements, thus, do not even otherwise inspire confidence.' 41. In the case before us, there is absolutely no material to show why appellant had reposed confidence in PW.7, to give extra-judicial confession. The prosecution has also miserably failed to produce any material to show that the accused was having close acquaintance with PW.7. 42. To corroborate the evidence of PW.7., PW.8 George Village Administrative Assistant, Ezhudesam Village has been examined. PW.8 and Vijayakumar have attested Ex.P.5 Extra-judicial confession. They were not employed either in Painkulam village or in Arudesam village. He was employed in Ezhudesam village. Between Ezhudesam and Painkulam, the distance is about 4 kms. On that day, PW.8 and Vijayakumar were asked to be present in Ezhudesam village in connection with distribution of free TVs. However, PW8 and Vijayakumar were brought to Painkulam VAO's office through a person. Arudesam itself has separate VAO. It has Village Assistants also. Why PW.8 and Vijayakumar should come all the way from Ezhudesam village to Painkulam to attest Ex.P.5 Extra-judicial confession, has not been explained. The Extra-judicial confession is stage managed, manufactured to inculpate the appellant. It is not genuine. It is not voluntary. It is highly unsafe to act upon. It deserves to be excluded from our consideration. 43. The last circumstance relied on by the prosecution is Section 27 Evidence Act recovery of MOs 4 to 8. 44. On 16.09.2006, at about 10.30 a.m, at the Puthukkadai Police station, PW.7 Chandra, VAO handed over the appellant with Ex.P.5 Extra-judicial confession to Inspector Subramony. He arrested him. Recorded his confession, Ex.P.6, that if he is taken to certain places he will produce his lungi, pant, woolen blanket and used empty tender coconuts. It was attested to by PW.8 and Vijayakumar. In pursuance of that MO.4 ash colour pant has been seized under Ex.P7 from Ponnappan's land in Vannan Vilai, from appellant's house, MO.5 empty tender coconuts, MO.6 hair pieces, MO.7 woolen blanket and MO.8 lungi were recovered under Ex.P.9 Mahazar, in the presence of PW.8 and Vijayakumar. 45. MO.8 lungi is stated to have been worn by the appellant while committing anal intercourse with the boy. There was no presence of semen in the lungi. MO.7 woolen blanket is stated to have been used by the appellant to conceal the boy's dead body. There was no blood in it. (Ex.P.16 Scientific Report). 46. On 3.9.2006, on dissection of the dead body, PW.10 Dr.Velmurugan found partially digested identifiable food particles which included tender coconut (Ex.P.11 post-mortem certificate). To correlate it, on 16.9.2006, in Ex.P.5 Extra-judicial confession it is stated that around 1 p.m., appellant gave him tender coconuts. To strengthen it, empty tender coconut has been mentioned in Ex.P.6 confession and recovery of the same from the front side of appellant's house under Ex.P.8 Mahazar in the presence of PW.8 George and Vijayakumar, Village Assistant also has been mentioned. 47. Above all, recovery of MOs. 4 to 8 is immediately after Ex.P.5 extra- judicial confession. When Ex.P.5 itself is tainted, this Section 27 Evidence Act recovery must also go. This circumstance also goes away. 48. Long ago, in England, Lord Justice GODDARD in WOOLMEINGTON Vs. DIRECTOR OF PUBLIC PROSECUTIONS (1935 AC 462), held that onus is upon the prosecution to prove the offence alleged to have been committed by the accused beyond all reasonable doubts. This has become the core of the Anglo-Saxonic Criminal Jurisprudence. 49. Since then there is no shifting of this primary duty cast upon the prosecution. The Indian Legal System is also wedded to this basic principle of English Criminal law. Even, now this is the position of Criminal law in India except to the extent statutorily excluded. For instance, offences against women (Section 113-A, 113-B, Indian Evidence Act, 1872). 50. The necessary corollary is suspicion, however, strong may not take the place of legal proof. A finding of a Criminal Court is acceptable only when it is supported by legal and valid evidence. Dehors that, it deserves rejection lock, stock and barrel. 51. It is appropriate here to note the following observations of Hon'ble Supreme Court made in, Rathinam v. State of T.N., (2011) 11 SCC 140, at page 145 : "We must, however, understand that a particularly foul crime imposes a greater caution on the court which must resist the tendency to look beyond the file, ?. It has been emphasised repeatedly by this Court that a dispassionate assessment of the evidence must be made and that the Court must not be swayed by the horror of the crime or the character of the accused and that the judgment must not be clouded by the facts of the case. In Kashmira Singh v. State of M.P. it was observed as under: (AIR p.160, para 2) "2. The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law." 24. Likewise in Ashish Batham v. State of M.P., it was observed thus: (SCC p. 327, para 8) "8. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between 'may be true' and 'must be true' and this basic and golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record." 52. No doubt, very serious charges have been made as against the appellant. We are very serious of they being proved by valid and legal evidence. Suspicion and surmises cannot be substituted for the same. None of the circumstances projected by prosecution has been proved. Everywhere the chain of circumstances woven by the prosecution is found broken. There is no connecting link. They do not form a complete chain unerringly implicating the accused with the charges framed against the appellant. 53. In view of the foregoings, the findings recorded by the learned Sessions Judge, Kanyakumari Sessions Divisions at Nagercoil cannot be sustained. Appellant is not guilty of the charges framed under section 377 and 302 IPC. He is entitled to be acquitted. 54. In the result, the Criminal Appeal is allowed. The conviction recorded and the sentences awarded to the appellant in S.C. No. 156 of 2007 on 24.06.2010 by the Sessions Judge, Kanyakumari Sessions Division at Nagercoil are set aside. The appellant shall be released immediately, if he is no longer required for any other case/ proceedings/ order. Fine amount, already paid shall be refunded to the appellant. asvm/avr To 1. The Sessions Judge, Kanyakumari District at Nagercoil. 2. The District Collector, Kanyakumari District at Nagercoil. 3. The Superintendent, Central Prison, Madurai. 4. Inspector of Police, Puthukadai Police Station, Puthukadai, Kanyakumari District.

Law relating to bonded labour explained. Direction issued to constitute Legal aid clinics and provide socio-economics reliefs.

HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 46 Case :- HABEAS CORPUS WRIT PETITION No. - 70403 of 2011 Petitioner :- Sageer & Others Respondent :- State Of U.P. & Others Petitioner Counsel :- Suresh Kumar Singh Respondent Counsel :- Govt. Advocate Hon'ble Amar Saran,J. Hon'ble Ramesh Sinha,J. "................ Poverty and destitution are almost perennial features of Indian rural life for large numbers of unfortunate ill-starred humans in this country and it would be nothing short of cruelty and heartlessness to identify and release bonded labourers merely to throw them at the mercy of the existing social and economic system which denies to them even the basic necessities of life such as food, shelter and clothing. It is obvious that poverty is a curse inflicted on large masses of people by our malfunctioning socio-economic structure and it has the disastrous effect of corroding the soul and sapping the moral fibre of a human being by robbing him of all basic human dignity and destroying in him the higher values and the finer susceptibilities which go to make up this wonderful creation of God upon earth, namely, man. It does not mean mere inability to buy the basic necessities, of life but it goes much deeper, it deprives a man of all opportunities of education and advancement and increases a thousand fold his vulnerability to misfortunes which come to him all too often and which he is not able to withstand on account of lack of social and material resources. We, who have not experienced poverty and hunger, want and destitution, talk platitudinously of freedom and liberty but these words have no meaning for a person who has not even a square meal per day, hardly a roof over his head and scarcely one piece of cloth to cover his shame. 'What use are 'identification' and 'release' to bonded labourers if after attaining their so-called freedom from bondage to a master they are consigned to a life of another bondage, namely, bondage to hunger and starvation where they have nothing to hope for - not even anything to die for - and they do not know whether they will be able to secure even a morsel of food to fill the hungry stomachs of their starving children, What would they prize more : freedom and liberty with hunger and destitution starring them, in the face or some food to satisfy their hunger and the hunger of their near and dear ones. even at the cost of freedom and liberty. The answer is obvious. It is therefore imperative that neither the Government nor the Court should be content with merely securing identification and release of bonded labourers but every effort must be made by them to see that the freed bonded labourers are properly and suitably rehabilitated after identification and release." - Opening words of Justice Bhagwati speaking for the bench in Neeraja Chowdhuri v State of M.P., AIR 1984 SC 1099. We have heard learned counsel for the petitioners and the learned A.G.A. This Habeas Corpus petition was filed on behalf of 44 labourers who were residents of different villages of districts Muzaffarnagar and Baghpat and who claim to be held in bondage by respondent no.5 Kailash Jain, at his brick-kiln, named the Kunal Brick Field, at village Uldpur (near Sakera Gaon), P.S. Inchauli, district Meerut. The petitioners claimed that they were not allowed to leave the premises and to work elsewhere, their accounts were also not completed and they were not paid their wages in time. Even if they fell ill they were not given medical aid, but were abused and forced to continue to work for the employer. On 7.12.2011, this Court had allowed two weeks time to the State to obtain instructions and to file a counter affidavit. A counter affidavit of Sri Anil Kumar, District Magistrate, Meerut has been filed. In this counter affidavit it is stated that the Naib Tehsildar and the Labour Enforcement Officer visited the brick-kiln of respondent no.5, M/s Kunal Brick Kiln Factory in village Uldpur, P.S. Inchauli, district Meerut on 15.12.2011 and made a spot inspection. It was revealed that none of the petitioners were present at the spot. However, one worker Momeen was present who claimed to be working at that brick-kiln for four years. He disclosed that the petitioners had come to the brick-kiln on 11th October and worked till 30th November 2011. After receiving their payments they had voluntarily left for their homes on 9.12.2011. It was denied that the petitioners where kept in bondage, and it was stated that they were being paid wages for providing their labour for making bricks @ Rs 280/ per thousand bricks. However on the date of visit, owing to the absence of any other labourer, other than Momeen, the work had stopped and the brick-kiln was not functioning. The statement of Rajan Jain, father of respondent no.5 who reiterated Momeen's version was also recorded. The D.M. thereupon reached the conclusion that there was no evidence of bondedness amongst the petitioners and prayed for dismissal of the writ petition with costs. As none of the petitioners were present at the time of inspection because they appear to have left for their homes, their was no one to controvert the version of the solitary worker Momeen present and the brick owners, Kailash and Rajjan Jain. Consequently we have no option but to accept the favourable report of the Labour Enforcement Officer and Naib Tehsildar which was approved by the D.M., and are therefore unable to grant any further relief to the petitioners in the present petition. However, we do feel that the D.M. appears to have too readily accepted the report of the Labour Enforcement Officer and the Naib Tehsildar and we are of the opinion that there is a need for this Court to sensitize the District Magistrates and other concerned government functionaries to certain salient aspects of the law relating to bonded labour. We think that not only the District Magistrate, but all of us, who come from privileged sections of society do need to fight an unconscious feudal bias deep within us, and to resist the tendency of identifying ourselves with the oppressor and the exploiter, but we have also to develop a sensitivity and sympathy for the poor and the oppressed, whose situation was so poignantly described by Justice Bhagwati in the inimitable words quoted from Neeraja Chowdhuri's case at the beginning of this order. Although it cannot be ruled out that some labourers may act in a mischievous manner and lodge a bonded labour complaint, if they are unwilling to work, even though they have taken a substantial advance from the employer, and there may be instances when because of labour shortage or competition in the business this advance may not have been given to tie down the labourer by way of a bonded debt by a particular contractor or to make the labourer work at below market rates in the area, but the advance was made only to ensure that the labourer worked for a particular employer without losing his freedom. But this fact also cannot be lost sight of that normally entire families migrate to distant places to work in brick fields or in quarry sites, or in other occupations as unorganized labour with no proper residence or drinking water facilities, and poor protection from the vagaries of weather, absence of medical care and denial of schooling to little children, only due to landlessness, hunger and acute poverty in their home areas. Rightly these migrations have been described to be in the nature of distress migrations. There is a vast difference between the clout of the labourer who must work each day to survive and the might of the employer, who can prevail over the unorganized labourer by denying him wages, evicting him from the homestead, abusing him or even resorting to violence against him. It is the fear of retaliation and violence and socio-economic dependence on the keepers of the bonded labour, that persons held in bondage rarely make bonded labour complaints or confirm allegations that they are being compelled to provide forced labour to their keeper when questioned by competent government functionaries. Very often the alternative to bondage before the labourer is stark hunger. The 'bonded labour system' as defined in section 2(g) of the Bonded Labour (System) Abolition Act, 1976, shows that it is usually as a result of advances given by way of bonded debt that a debtor or his dependents or heirs are compelled to provide forced or partly forced labour to the creditor for a specified or unspecified period for no wage or for nominal wages, to forfeit their right to freely sell their labour in the market, change their employer or to move about freely in India. Therefore if any advance was given (as may have been done in this case), it may have actually been a bonded debt. Under section 15 of the Bonded Labour System (Abolition) Act, 1976 when a claim is raised by the debtor that a particular advance is a bonded debt the onus lies on the creditor to disprove this claim. In this regard in Bandua Mukti Morcha v Union of India and others, AIR 1982 SC 802 (at 827) it has been appositely observed: "It would be cruel to insist that a bonded labourer in order to derive the benefits of this social welfare legislation, should have to go through a formal process of trial with the normal procedure for recording of evidence. That would be a totally futile process because it is obvious that a bonded labourer can never stand up to rigidity and formalism of the legal process due to his poverty, illiteracy and social and economic backwardness and if such a procedure were. required to be followed, the State Government might as well obliterate this Act from the statute book. It is now satistically established that most of bonded labourers are members of Schedule Castes and Scheduled, Tribes or other backward classes and ordinary course of human affairs would show, indeed judicial notice can be taken of it, that there would be no occasion for a labourer to be placed in a situation where he is required to supply forced labour for no wage or for nominal wage, unless he has received some advance or other economic consideration from the employer and under the pretext of not having returned such advance of other economic consideration, he is required to render service to the employer or is deprived of his freedom of employment or of the right to move freely wherever he wants. Therefore, whenever it is shown that a labourer is made to provide forced labour, the Court would raise a presumption that he is required to do so in consideration of an advance or other economic consideration received by him and he is therefore a bonded labourer: This presumption may be rebutted by the employer and also by the State Government if it so chooses but unless and until satisfactory material is produced for rebutting this presumption, the Court must proceed on the basis that the labourer is a bonded labourer entitled to the benefit of the provisions of the Act." (Underlining ours) It also cannot be ruled out that after the present petition was entertained in the High Court on 27.11.2011 and the order calling for a response from the respondents was passed on 7.12.11, the labourers were paid off part or the whole of their due wages, and allowed to go home on 9.12.11, so that they could be prevented from participating in the enquiry directed by the District Magistrate. Only one worker Momeen (who may have himself been indebted to the employer) appeared when the inspection was carried out on 15.12.2011. In the absence of the complainants this Court has no way to ascertain at this stage whether the report of the Labour Enforcement Officer and Naib Tehsildar was completely fair and unbiased or whether some influence has been exercised by the brick-kiln owner to obtain the favourable report in the absence of the complainants. No registers or documents maintained under any provision of law were produced before the inspecting team for substantiating the claim that the petitioners had been paid off their due amounts or that they had actually been paid remuneration @ Rs. 280 per 1000 bricks for the labour component in making the bricks. The National Human Rights Commission, which has been entrusted with the duty of being involved with the issue of bonded labour and of monitoring the bonded labour situation in the country by the Supreme Court in Writ Petition (Civil) No. 3922 of 1985, PUCL v State of Tamil Nadu, has rightly lamented the insensitivity and occasional complicity of government officials in its report on bonded labour titled "Know your Rights" by observing: "Instead of acting promptly on such complaints and effecting the identification and release of bonded labourers, they are even found helping the keepers of bonded labourers to arrange the dispersal and disappearance of bonded labour after hurriedly settling their accounts." That the conditions of employment with the employer were less than ideal in the present case was apparent from the fact that the brick-kiln had to be closed down once the petitioners left, when the enquiry team visited the work site. If the Labourers on the brick-kiln were being treated in a humane manner they were unlikely to have all left the premises causing the brick-kiln to shut down. That a proactive role is cast on the District Magistrates is clear from section 11 of the Bonded Labour (Abolition) Act which provides that the District Magistrates or his nominated subordinate officers are to ensure the welfare of freed bonded labourers and their economic interests, so that they do not again lapse into debt bondage. A dual duty is cast on the District Magistrates, not only to rehabilitate bonded labourers after they have been identified and released, so that they are prevented from again lapsing into bondage, but he must give preventive relief to vulnerable classes of people, such as landless agricultural labourers or share croppers facing droughts, or bonded child labour in the sericulture processing, carpet-weaving industry or match and fire crackers industries or distress migrant labourers working in stone quarries, or brick-kilns or beedi manufacturing, or construction projects, or as gatherers of forest produce or in pisciculture etc. under contractors who advance bonded debts for exacting bonded labour. There are a large number of welfare schemes for poverty alleviation at the Central and State levels for this purpose, such as the Central Mininistry of Labour sponsored scheme of 1978 which provides Rs. 20,000 for the rehabilitation of the identified bonded labourer with a 50:50 contribution by the Centre and the State, or the Mahatma Gandhi National Rural Employment Guarantee Scheme. Other measures for preventing and rehabilitating bonded labour are stricter enforcement of the Minimum Wages, Payment of Wages and Contract labour(Regulation and Abolition) and Inter-State Migrant Workmen Acts wherever they are applicable and the obligations therein to maintain necessary records and registers, more comprehensive land reforms and distribution of surplus land, land development, provision of house sites and low cost dwelling units to the poor, improvement in the Public distribution System for distributing essential commodities to a targeted population, improvement of the public health and State sponsored health insurance schemes, provision of micro-finance for vulnerable sections, assistance in setting up poultry, piggery, and dairy units, improvement in animal husbandry, horticultural and agricultural practices, training for acquiring new skills, provision of free primary education, and more widespread availability of special schemes for widows and old aged persons, providing rights for fishing in water bodies, for collecting and processing forest produce, or for surface mining and quarrying of minerals (especially minor minerals) which could be granted to self-help groups (swayam sahayata samoohs) of such labourers, and protection of civil rights. Bonded labour offences have been made cognizable, though bailable under section 22 of the Bonded Labour Act. Under section 23 they are to be summarily tried by an Executive Magistrate who has been given the powers of a 1st or 2nd Class Judicial Magistrate, and extracting bonded labour from a person has been made punishable with imprisonment up to three years and fine up to Rs. 2000. Even giving a person a bonded debt invites the same punishment. The Constitutional provisions for checking bondage and human trafficking also need mention. Thus Article 23(1) of the Constitution prohibits any form of trafficking in human beings and forced labour, and the contravention of this prohibition has been made punishable in law. Article 39(a) provides that men and women equally have a right to an adequate means of livelihood. Article 39 (e) requires that the health and strength of workers, men and women, and the tender age of children are not abused and that the citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 42 casts a duty on the State to secure just and humane conditions of work and for maternity relief. Article 43 enjoins a duty on the State to endeavour to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas. Apart from the Constitutional provisions, a few of the international safeguards for prohibiting human trafficking and bonded labour, are mentioned below. According to the Forced Labour Convention of 1930 (No.29) [Article 2 (1)] ? the term "forced or compulsory labour" means all work or service which is exacted from any person under the threat of any penalty and for which the said person has not offered himself voluntarily. The ILO Convention states that member countries are to suppress the use of forced or compulsory labour in all its forms within the shortest possible period. (India ratified the ILO Convention on Forced Labour (No.29) in 1953). Article 4 of the Universal Declaration of Human Rights, 1948 states that "No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms." The UN Supplementary Convention on the Abolition of Slavery (1956) defines debt bondage as "the status or condition arising from a pledge by a debtor of his personal service or those of a person under his control as a security for a debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined." In the ILO Report on Stopping Forced Labour (2001) ? the term, bonded labour refers to a worker who rendered service under conditions of bondage arising from economic consideration, notably indebtedness through a loan or an advance. Where debt is the root cause of bondage, the implication is that the worker (or his dependents or heirs) are tied to a particular creditor for a specified or unspecified period until the loan is repaid. We also find that District and tahsil (sub-divisional) level Vigilance Committees have been constituted under section 13 of the Bonded Labour System (Abolition) Act, 1976 for identifying the bonded labourers in a district and for maintaining statistics and records and monitoring the interests of bonded labourers or freed bonded labourers. However although two of of the district and tahsil Vigilance Committee members are civil society social workers and three belong to the scheduled castes or tribes, but being the government or the D.M.'s nominees, they usually refrain from embarrassing the District Magistrate if he has taken the position that elements of debt bondage were absent in a particular case or that a particular area was bonded labour free. Unlike the D.M. they also lack executive powers and receive no financial support for transport or other work. Experience shows that district or sub-divisional vigilance committees have not been much better than government functionaries in tackling the problem of bonded labour. Even the local body panchayat members because of their position in the village feudal power structure usually support the keepers of bonded labour who are normally from a dominant caste. A problem also arises because either the bonded labourer who is usually totally economically dependent on his employer is unwilling to maintain his claim of being held in bondage, when examined by the concerned Magistrate or other government functionary, because of the threats extended to him by his keeper, (and the local feudal structure that is usually supportive of the keeper) that the labourer and his family's survival is not possible if he presses his complaint, and that he would be isolated after the DM or civil society supporter's departure from the scene. Also where distress migrant labourers (as may possibly have happened in the present case) leave the place voluntarily or forcibly, or after being handed out a pittance of their due wages, they are usually unavailable to press their complaint before the concerned Magistrate, hence we find that in the rarest case has any one been convicted or sent to jail for a bonded labour offence. Government officials at the village level such as the panchayat secretary, or the revenue officials like the lekhpal or patwari or beat police personnel usually want to oblige the feudal power holders in the village, and are aligned with the dominant persons there, who may be the keepers of bonded labourers themselves. Besides they have other functions to perform and are not required to keep records regarding the situation of bonded labourers in the village. They also have a very servile attitude towards the DM or SDM, who may consider admission of debt bondage in his area a sign of his failure. Such panchayat secretaries, patwaris and lekhpals can therefore not be expected to be keen on forwarding bonded labour complaints to the competent Magistrates for inquiry or trial. However para legals trained by the sub-divisional or district Legal Aid Services Authorities and panel and retainer lawyers, who are to be introduced to man the legal aid clinics which are to be set up in each village or cluster of villages, under the National Legal Services Authority (Legal Aid Clinics) Scheme, 2010 and the National Legal Services Authorities (Legal Aid Clinics) Regulations 2011 in pursuance of section 12(b) of the Legal Services Authorities Act, 1987 which calls for providing free legal services to victims of trafficking in human beings or begar as referred to in Article 23 of the Constitution, would stand on a different footing. The said lawyers and para legals being under the supervision of the local and district judiciary and the Legal Services institutions would be relatively independent of the D.M. or the village power structure and would prove far more useful for pressing and pursuing debt bondage issues in the village. Once the legal aid clinics are set up and the paralegals and panel lawyers are available at the village, instant inquiries in matters of bondage can be conducted, even before the migrant bonded labourers leave for their original homes. As the Legal Aid Clinics Scheme and Regulations also speak of acquainting eligible persons at the grass roots level belonging to the Scheduled Castes and tribes or other backward classes and other socially and economically weak persons with their rights under various government welfare schemes, and visualize co-ordinating efforts with local civil society groups, using pre-litigation alternative dispute resolution methods, conducting Lok Adalats locally when a substantial number of persons who are seeking a similar kind of legal relief are identified, encouraging law students to survey the problems in the area and to provide legal reliefs with the aid of the paralegals. Utilization of such paralegals, legal aid lawyers and students would prove far more effective for tackling the problem of debt bondage and also for advancing the welfare of the downtrodden sections of the people, which should be the concern of any sensitive and people oriented legal system. This Court is however of the opinion that the directions of the National Legal Services Authority to the State Authorities to set up Legal Aid Clinics and appoint para-legals and panel lawyers for villages in accordance with its flagship Legal Aid Clinics scheme is not proceeding at the pace required and the matters need to be expedited. We therefore direct the U.P. State Legal Services Authority to make sincere efforts to set up Legal Aid Clinics at the earliest, if possible within 4 months in all villages or clusters of villages as provided in the Legal Aid Clinics Scheme and to provide for paralegals, panel or retainer lawyers supervised by the sub-divisional or District Legal Services Authority to man the legal aid clinics in order to prevent debt bondage and to ensure access to the different government social welfare schemes, provision of minimum wages, land reforms and other poverty alleviation measures to members of the scheduled tribes and castes and other backward castes and other socially and economically deprived persons who are eligible for such reliefs under section 12 of the Legal Services Authorities Act. We think that preference for starting the legal aid clinics scheme be given to villages in areas where a greater number of bonded or child labour or minimum wage complaints have been made, or villages with greater socio-economic backwardness, with feudal structures and inadequate land reforms, degraded land, where there are a large number of unorganized and contract labour in stone quarrying, mining, gathering forest produce, or beedi, carpet, sericulture, pisciculture, fire crackers, pottery, brass, glass, bangle work, construction activities etc., poor condition of primary education, as these are the likely areas of concentration of bonded labour, and which are also the areas of greatest poverty and inequality calling for intervention on a priority basis. The Chief Secretary, Principal Secretary Law, Principal Secretary Home, Social Welfare and Women and Child Development, Member Secretary, U.P. State Legal Services Authority, and District Legal Services Authorities, DGP, UP, Labour Commissioner, U.P., Divisional Commissioners, District Magistrates and Sub-divisional magistrates, and other concerned government functionaries and the police personnel from the concerned police station are expected to give complete support in this effort, and to ensure co-ordination of different departments and to issue suitable directions for checking bonded labour and for ensuring that the socio-economic issues of such vulnerable sections are addressed on a priority and comprehensive basis. We find that in the cases of migrant bonded labourers, the bonded labourer may be from the same district or another district in the state, or he may be from another state. As after the bonded labour issue is raised usually the labourer voluntarily or forcibly goes back to his original home, and consequently no complainant is left to prosecute the complaint, (as in the present case). We think that henceforth whenever the complaining bonded labour belongs to the same district or another district in U.P., the matter may also be referred for examination to the the State Human Rights Commission and whenever the aggrieved bonded labour originates from a district outside U.P., the matter may be referred for examination to the National Human Rights Commission. The said Commissions may take cognizance on the reference if they deem appropriate and issue directions or submit their report. We also direct the D.M.s, DIGs/SSPs/SPs and District level Labour Commissioners of all districts to direct the subordinate officials and in-charges of the police stations concerned to initiate immediate action in the matters and to inform the District and Sub-divisional Legal Services Authorities which shall forthwith examine the complainants and investigate into the genuineness of the bonded labour complaints and give legal assistance to the bonded labourer complainants for following up the matter with the competent authorities irrespective of whether Legal Aid Clinics have been set up in that particular area. We direct the Chief Secretary/Principal Secretary Home/Social Welfare, U.P., DGP, U.P., and Principal Secretary, Labour/Labour Commissioner U.P. and Member Secretary, U.P., Legal Services Authority, U.P., Lucknow to issue necessary directions for fulfilling the aforesaid objectives. Let a copy of this order be sent within two weeks to the Chief Secretary, U.P., Director General of Police, U.P., Principal Secretary, Social Welfare, Women and Child Development, U.P., Principal Secretary, Home, U.P., Principal Secretary (Law) U.P, Principal Secretary� (Labour), U.P. , Labour Commissioner, U.P., Kanpur,� Member-Secretary, National Legal Services Authority, New Delhi, State Legal Services Authority, U.P., National Human Rights Commission, New Delhi, U.P. State Human Rights Commission, Lucknow, all District Legal Services Authorities (District Judges), all Divisional Commissioners, District Magistrates, and DIG/SSP/SP in-charge of law and order in all districts in U.P., for further communication to their subordinate officials and compliance. Copy of the order may also be furnished to the learned Government Advocate within� two weeks for compliance. With these observations, the petition is finally disposed of. Order Date :- 5.1.2012 sfa/

Copy Right Act (Act 14 of 1957), 1957--Whether in view of the provisions of the Copy Right Act 1957 an existing and future rights of music .... composer, lyricist is capable of assignment under s. 18 when he grants a licence or per- mission u/s. 30 to an author (owner) of a cinematograph film for its incorporation in the sound track of a cinematograph film--Whether the producer of a cinematograph film can defeat the same by engaging in the same person: Scope of ss. 2(d), (f), (j), (m), (p), (q), (r), (v), (y), 13,14,17,18, 19 22, 26, 30 and 34 of the Act.

The appellant society was incorporated in terms of section 2(r) of the Copyright Act. 1957 (Act 14 of 1957), in the State of Maharashtra on August 23, 1969 as a company limited by guarantee for the purpose of carrying on business in India of issuing or granting licences for performance in public of all existing and future Indian musical works in which copyright within the meaning of s. 13 subsists in India. The appellant company has amongst its members the composers of musical works, authors of literary and dramatic works and artistes. In accordance with the provisions of section 33 of the Copyright Act, the appellant published on September 27, 1969 and November 29, 1969 in the "Statesman" and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licences for performance in public of works in respect of which it claimed to be an assignee of copy- rights and to have authority to grant the aforesaid li- cences. A number of persons including various associations of producers of cinematograph films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the tariff before the Copyright Board in accordance with the provisions of section 34 of the Act, repudiating the rights of the appel- lant. The Copyright Board held : (1) In the absence of proof to the contrary, the composers of lyrics and music retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and musical works were printed on written and that they could assign the performing right in public to the appellant. (2) The tariff as published by the appellant was reasonable. (3) The appellant had the right to grant li- cences for the public performance of music in the sound track of copyrighted Indian cinematograph films and (4) It could collect fees, royalties and charges in respect of those films w.e.f. the date on which the tariff was pub- lished in the Gazette of India. The High Court allowed the appeal preferred by the respondents under s. 72 of the Act and held: (i) Unless there is a contract to the contrary a composer who composes a lyric or music for the first time for valuable consideration for a cinematograph film does not acquire any copyright either in respect of film or its sound track which he is capable of assigning. (ii) Under proviso (b) to section 17 of the Act, the owner of the film at whose instance the composition is made becomes the first owner of the copyright in the composition. (iii) The compos- er can claim a copyright in his work only if there is an express agreement between him and the owner of the cinemato- graph film reserving his copyright. (iv) Though section 18 of the Act confers power to make a contract of assignment. the power can be exercised only when there is an existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect. In appeal by certificate to this Court, the appellant contended (1) The author (composer) of a literary or musical work has copyright which includes. inter alia. the exclusive right (a) to perform the work in public and 207 (b) to make any cinematograph film or a record in respect of the work. (2) That copyright in a literary or musical work is infringed by any person if without a licence granted to him by the owner of the copyright, he makes a cinematograph film in respect of the work or perform the work in public by exhibiting the cinematograph film. (3) If a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the per- mission not only of the owner of the copyright in the cine- matograph film but also the permission of the owner of the copyright in the literary or musical work which is incor- porated in the cinematograph film, as according to s. 13(4) of the Act, the copyright in a cinematograph film or a record does not effect the separate copyright in any work in respect of which or a substantial part of which the film or as the case may be, the record is made (4). The provi- sions of section 17(b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work embodied in a cinematograph film. (5) The only modes in which the author of a literary work or musical work ceases to be the owner of copyright in the work are (a) by assigning under s. 18(b) by relinquishment under s. 21 and (c) by the composer composing the work in the course of his employment under a contract of service with an employer in which case the employer becomes the owner of the copyright in the musical work. (6) In the case of an assignment of copyright in future work and the employment of the author to produce a work under a contract of service, the question of priorities will be decided according to the principles "where equities are equal, the first in time shall prevail". The respondent's contentions were (i) Unless a music is notationally written, printed or graphically reproduced it is not a musical work within the meaning of Copyright Act and there is no copyright in songs or orchestral pieces sung or played directly without its notation being written. (ii) Since a "cinematograph film" is defined in section 2(f) of the Act as including the sound track and the "cinema tograph" is required to be construed to include any work produced by any process analogous to cinematography the owner of the cinematograph film is the first owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film. (iii) In the case of the film in which a lyric (which literally means a short poem directly expressing the poet's own thoughts and sentiments in instances failing within the purview of the expression "literary work" as defined in section 2(0) of the Act has been plagiarised, there will be copyright in the film vesting in the pro- ducer. (iv) The Act confers a separate copyright of a cinematograph film as a film, its author under s. 2(d)(v) of the Act being the owner of the film at the time of its completion. (v) In the case of a lyric or music incorporat- ed under the sound track of a cinematograph film, since in section 2(f) of the Act cinematograph film includes its sound track and section 13(1)(b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the. owner of copyright the right to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the composer of the lyric or of the music incorporated in the sound track of a cinematograph film for exhibiting or causing the exhibition of the sound portion of the film in public or for causing the records of the sound track of the film to be heard in public. (vii) It is not correct to say that under s. 17 proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in it, the making of the entire film should be commissioned. Section 17(b) will equally apply if someone is commissioned to make any compo- nent part of a cinematograph film such as a lyric or musical work i.e. when such component of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer. (viii) As the Act confers a separate copyright on a cinematograph film as a film the producer can exercise both the rights conferred on him under s. 141(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section 14(1)(a) and (b) shall coexist with those created by section 14(1)(e) and (d) of the Act. Dismissing the appeal the Court, HELD: (Per Krishna Iyer, J. concurring) 208 (1) Copyright in a cinema film exists in law but section 13(4) of the Act preserves the separate survival in its individuality of a copyright enjoyed by any work notwith- standing its confluence in the film. This persistence of the aesthetic personality of the intellectual property cannot cut down the copyright of the film qua film. The exclusive right, otherwise, called copyright, in the' case of a musical work extends to all the sub rights spelt out in section 14(1) (a). A harmonious construction, of s. 14, which is the integral yoga of copyright shows that the artiste enjoys his copyright in the musical _work the film producer is the master of his combination of artistic .pieces and the two can. happily co-exist and need not conflict. [223 A-C] (2) The boundaries of composite creations of art which are at once individual and collective may be viewed from different angles. In a cosmic perspective, a thing of beauty has no boundary and is humanity's property but in the materialist plane on which artistes thrive private and exclusive estate inert subsists. The enigmatic smale of Mona Lisa is the timeless heritage of mankind, but, till liberated by the prescribed passage of time, the private copy right of the human maker says, "hands off. [223 F-G] (3) The film producer has the sole right to exercise what is his entitlement under section 14(1)(c) qua film. But, he cannot trench on the composer's copyright which he does only if the 'music' is performed or produced or repro- duced separately, in violation of section 14(1)(a). A film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or the theatre. To do that is the privilege of the composer and that right of his is not drowned in the film' copyright except where there is special provision such as section 17, proviso (c). Beyond exhibiting the film as a cinema show if the producer plays the songs separately to attract an audience or for other reasons he infringes the composer's copyright, the copyright of the composer or the Performing Acts Society comes into play, if a music is played, whether in a restaurant or aeroplane or radio sta- tion or cinema theatre. [223 C-E] (4) Section 14 has in its careful arrangement of the right belonging each copyright has a certain melody and harmony to music which is to loose the sense of the same. Our copyright statute protects the composite cinematograph work produced by lay out of heavy money and many talents but does not extinguish the copyrightable component parts in toto. The music which has merged through the sound track, into the motion picture is copyright by the producer but, on account of this monopoly, the music composer's copyright does not perish. The twin rights can co-exist each fulfil- ing itself in its delectable distinctiveness. [224 A-B] Observation: Apart from the music composed, the singer must be conferred a right. Copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonder- ful rendering. It is the melody or harmony reduced to print writing or graphic form of musical works. Author as defined in s.2(d) in relation to a musical work is only the composer and section 16 confines copyright to those works which are recognised by the Act, which means the composer alone has copyright in a musical work and the singer has none. This disentitlement of the musician or group of musical artistes to copyright is un-Indian because the major attraction which lends monetary value to a musical performance is not the music maker so much as the musician. Perhaps both deserve to be recognised by the copyright law, because art in one sense depends on the ethos and the aesthetic best of a people and while universal protection of intellectual and aesthetic property of creators of "works" is an international obliga- tion each country in its law must protect such rights wher- ever originally is contributed. [224 E-H] Per Jaswant Singh J. (1) The existing and future right of music ........ composer and lyrics in their respective works as defined in the Act is capable of assignment subject to the conditions mentioned in section 18 of the Act as also in section 209 19 of the Act which requires an assignment to be in writing, signed by the assigner or by his duly authorised agent. [215 D-E] (2) The interpretation of clause (f) of section 2 which is not exhaustive leaves no room for doubt when read in conjunction with section 14(1)(c)(iii), that the term cine- matograph film includes a sound track associated with the film. [220 D] (3) A harmonious and rational instead of mechanical construction of s. 34, s. 14(1)(a)(iii) and s. 14(1)(c)(ii) will be: (A) Once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film pro- ducer to make a cinematograph film in respect of his work and thereby to have his work incorporated or recorded in sound track of a cinematograph film, the latter.acquires by virtue of section 14(1)(c) of the Act on completion of the cinematograph film a copyright which gives him the exclu- sive right, inter alma, of performing the work in public that is, to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in public. A distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which relates both to copying the film and to its performance in public. (B) If an author (composer) of a lyric or a musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track or a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or the musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. (C) The composer of a lyric or musical work retains the right of performing it in public for profit otherwise than as a part of cinematograph film and he cannot be restrained from doing so. In other words, the author (composer) of a lyric or musical work who has authorised a cinematograph film producer to make a cinematograph film of his work and thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising the communication of the film by radio diffusion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of a cinematograph film to do all these things. In such cases the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the ex- press provisions of clause (f), (m), (y) of section 2, section 13(1)(b) ,red section 14(1)(c) of the Act otiose but would also defeat the intention of the legislature which in view of the growing importance of the cinematograph film as a powerful media of expression and the highly complex, technical and scientific process and heavy capital outlay involved in its production has sought to recognise as a separate entity and to treat a record embodying the record- ing in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood. [220 G-H; 221 A-G] (4)Clauses (d), (v), (f), (m), (v) and (y) of section 2, section 13(1) and 14(1)(c), provisos (b) and (c) to section 17 and section 22 and 26 of the Act abundantly make it clear that protectable copyright (comprising a bundle of exclusive rights mentioned in section 14(1)(c) of the Act comes to 210 vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion are synchronized. [221 H; 222 A] (5) The rights of music ........ composer or lyricist can be defeated by the producer of a cinematograph film in the manner laid down in proviso (b) and (c) of section 17 of the Act. In both the. cases falling under clauses (b) and (c) of s. 17, a cinematograph film producer becomes the. first owner of the copyright and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on one hand and the producer of the cinemato- graph film on the other. [222 D-F] Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, quoted with approval. 1977 AIR 1443, 1977( 3 )SCR 206, 1977( 2 )SCC 820, , PETITIONER: INDIAN PERFORMING RIGHT SOCIETY LTD. Vs. RESPONDENT: EASTERN INDIA MOTION PICTURES ASSOCIATION DATE OF JUDGMENT14/03/1977 BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KRISHNAIYER, V.R. CITATION: 1977 AIR 1443 1977 SCR (3) 206 1977 SCC (2) 820 ACT: Copy Right Act (Act 14 of 1957), 1957--Whether in view of the provisions of the Copy Right Act 1957 an existing and future rights of music .... composer, lyricist is capable of assignment under s. 18 when he grants a licence or per- mission u/s. 30 to an author (owner) of a cinematograph film for its incorporation in the sound track of a cinematograph film--Whether the producer of a cinematograph film can defeat the same by engaging in the same person: Scope of ss. 2(d), (f), (j), (m), (p), (q), (r), (v), (y), 13,14,17,18, 19 22, 26, 30 and 34 of the Act. HEADNOTE: The appellant society was incorporated in terms of section 2(r) of the Copyright Act. 1957 (Act 14 of 1957), in the State of Maharashtra on August 23, 1969 as a company limited by guarantee for the purpose of carrying on business in India of issuing or granting licences for performance in public of all existing and future Indian musical works in which copyright within the meaning of s. 13 subsists in India. The appellant company has amongst its members the composers of musical works, authors of literary and dramatic works and artistes. In accordance with the provisions of section 33 of the Copyright Act, the appellant published on September 27, 1969 and November 29, 1969 in the "Statesman" and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licences for performance in public of works in respect of which it claimed to be an assignee of copy- rights and to have authority to grant the aforesaid li- cences. A number of persons including various associations of producers of cinematograph films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the tariff before the Copyright Board in accordance with the provisions of section 34 of the Act, repudiating the rights of the appel- lant. The Copyright Board held : (1) In the absence of proof to the contrary, the composers of lyrics and music retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and musical works were printed on written and that they could assign the performing right in public to the appellant. (2) The tariff as published by the appellant was reasonable. (3) The appellant had the right to grant li- cences for the public performance of music in the sound track of copyrighted Indian cinematograph films and (4) It could collect fees, royalties and charges in respect of those films w.e.f. the date on which the tariff was pub- lished in the Gazette of India. The High Court allowed the appeal preferred by the respondents under s. 72 of the Act and held: (i) Unless there is a contract to the contrary a composer who composes a lyric or music for the first time for valuable consideration for a cinematograph film does not acquire any copyright either in respect of film or its sound track which he is capable of assigning. (ii) Under proviso (b) to section 17 of the Act, the owner of the film at whose instance the composition is made becomes the first owner of the copyright in the composition. (iii) The compos- er can claim a copyright in his work only if there is an express agreement between him and the owner of the cinemato- graph film reserving his copyright. (iv) Though section 18 of the Act confers power to make a contract of assignment. the power can be exercised only when there is an existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect. In appeal by certificate to this Court, the appellant contended (1) The author (composer) of a literary or musical work has copyright which includes. inter alia. the exclusive right (a) to perform the work in public and 207 (b) to make any cinematograph film or a record in respect of the work. (2) That copyright in a literary or musical work is infringed by any person if without a licence granted to him by the owner of the copyright, he makes a cinematograph film in respect of the work or perform the work in public by exhibiting the cinematograph film. (3) If a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the per- mission not only of the owner of the copyright in the cine- matograph film but also the permission of the owner of the copyright in the literary or musical work which is incor- porated in the cinematograph film, as according to s. 13(4) of the Act, the copyright in a cinematograph film or a record does not effect the separate copyright in any work in respect of which or a substantial part of which the film or as the case may be, the record is made (4). The provi- sions of section 17(b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work embodied in a cinematograph film. (5) The only modes in which the author of a literary work or musical work ceases to be the owner of copyright in the work are (a) by assigning under s. 18(b) by relinquishment under s. 21 and (c) by the composer composing the work in the course of his employment under a contract of service with an employer in which case the employer becomes the owner of the copyright in the musical work. (6) In the case of an assignment of copyright in future work and the employment of the author to produce a work under a contract of service, the question of priorities will be decided according to the principles "where equities are equal, the first in time shall prevail". The respondent's contentions were (i) Unless a music is notationally written, printed or graphically reproduced it is not a musical work within the meaning of Copyright Act and there is no copyright in songs or orchestral pieces sung or played directly without its notation being written. (ii) Since a "cinematograph film" is defined in section 2(f) of the Act as including the sound track and the "cinema tograph" is required to be construed to include any work produced by any process analogous to cinematography the owner of the cinematograph film is the first owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film. (iii) In the case of the film in which a lyric (which literally means a short poem directly expressing the poet's own thoughts and sentiments in instances failing within the purview of the expression "literary work" as defined in section 2(0) of the Act has been plagiarised, there will be copyright in the film vesting in the pro- ducer. (iv) The Act confers a separate copyright of a cinematograph film as a film, its author under s. 2(d)(v) of the Act being the owner of the film at the time of its completion. (v) In the case of a lyric or music incorporat- ed under the sound track of a cinematograph film, since in section 2(f) of the Act cinematograph film includes its sound track and section 13(1)(b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the. owner of copyright the right to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the composer of the lyric or of the music incorporated in the sound track of a cinematograph film for exhibiting or causing the exhibition of the sound portion of the film in public or for causing the records of the sound track of the film to be heard in public. (vii) It is not correct to say that under s. 17 proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in it, the making of the entire film should be commissioned. Section 17(b) will equally apply if someone is commissioned to make any compo- nent part of a cinematograph film such as a lyric or musical work i.e. when such component of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer. (viii) As the Act confers a separate copyright on a cinematograph film as a film the producer can exercise both the rights conferred on him under s. 141(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section 14(1)(a) and (b) shall coexist with those created by section 14(1)(e) and (d) of the Act. Dismissing the appeal the Court, HELD: (Per Krishna Iyer, J. concurring) 208 (1) Copyright in a cinema film exists in law but section 13(4) of the Act preserves the separate survival in its individuality of a copyright enjoyed by any work notwith- standing its confluence in the film. This persistence of the aesthetic personality of the intellectual property cannot cut down the copyright of the film qua film. The exclusive right, otherwise, called copyright, in the' case of a musical work extends to all the sub rights spelt out in section 14(1) (a). A harmonious construction, of s. 14, which is the integral yoga of copyright shows that the artiste enjoys his copyright in the musical _work the film producer is the master of his combination of artistic .pieces and the two can. happily co-exist and need not conflict. [223 A-C] (2) The boundaries of composite creations of art which are at once individual and collective may be viewed from different angles. In a cosmic perspective, a thing of beauty has no boundary and is humanity's property but in the materialist plane on which artistes thrive private and exclusive estate inert subsists. The enigmatic smale of Mona Lisa is the timeless heritage of mankind, but, till liberated by the prescribed passage of time, the private copy right of the human maker says, "hands off. [223 F-G] (3) The film producer has the sole right to exercise what is his entitlement under section 14(1)(c) qua film. But, he cannot trench on the composer's copyright which he does only if the 'music' is performed or produced or repro- duced separately, in violation of section 14(1)(a). A film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or the theatre. To do that is the privilege of the composer and that right of his is not drowned in the film' copyright except where there is special provision such as section 17, proviso (c). Beyond exhibiting the film as a cinema show if the producer plays the songs separately to attract an audience or for other reasons he infringes the composer's copyright, the copyright of the composer or the Performing Acts Society comes into play, if a music is played, whether in a restaurant or aeroplane or radio sta- tion or cinema theatre. [223 C-E] (4) Section 14 has in its careful arrangement of the right belonging each copyright has a certain melody and harmony to music which is to loose the sense of the same. Our copyright statute protects the composite cinematograph work produced by lay out of heavy money and many talents but does not extinguish the copyrightable component parts in toto. The music which has merged through the sound track, into the motion picture is copyright by the producer but, on account of this monopoly, the music composer's copyright does not perish. The twin rights can co-exist each fulfil- ing itself in its delectable distinctiveness. [224 A-B] Observation: Apart from the music composed, the singer must be conferred a right. Copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonder- ful rendering. It is the melody or harmony reduced to print writing or graphic form of musical works. Author as defined in s.2(d) in relation to a musical work is only the composer and section 16 confines copyright to those works which are recognised by the Act, which means the composer alone has copyright in a musical work and the singer has none. This disentitlement of the musician or group of musical artistes to copyright is un-Indian because the major attraction which lends monetary value to a musical performance is not the music maker so much as the musician. Perhaps both deserve to be recognised by the copyright law, because art in one sense depends on the ethos and the aesthetic best of a people and while universal protection of intellectual and aesthetic property of creators of "works" is an international obliga- tion each country in its law must protect such rights wher- ever originally is contributed. [224 E-H] Per Jaswant Singh J. (1) The existing and future right of music ........ composer and lyrics in their respective works as defined in the Act is capable of assignment subject to the conditions mentioned in section 18 of the Act as also in section 209 19 of the Act which requires an assignment to be in writing, signed by the assigner or by his duly authorised agent. [215 D-E] (2) The interpretation of clause (f) of section 2 which is not exhaustive leaves no room for doubt when read in conjunction with section 14(1)(c)(iii), that the term cine- matograph film includes a sound track associated with the film. [220 D] (3) A harmonious and rational instead of mechanical construction of s. 34, s. 14(1)(a)(iii) and s. 14(1)(c)(ii) will be: (A) Once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film pro- ducer to make a cinematograph film in respect of his work and thereby to have his work incorporated or recorded in sound track of a cinematograph film, the latter.acquires by virtue of section 14(1)(c) of the Act on completion of the cinematograph film a copyright which gives him the exclu- sive right, inter alma, of performing the work in public that is, to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in public. A distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which relates both to copying the film and to its performance in public. (B) If an author (composer) of a lyric or a musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track or a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or the musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. (C) The composer of a lyric or musical work retains the right of performing it in public for profit otherwise than as a part of cinematograph film and he cannot be restrained from doing so. In other words, the author (composer) of a lyric or musical work who has authorised a cinematograph film producer to make a cinematograph film of his work and thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising the communication of the film by radio diffusion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of a cinematograph film to do all these things. In such cases the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the ex- press provisions of clause (f), (m), (y) of section 2, section 13(1)(b) ,red section 14(1)(c) of the Act otiose but would also defeat the intention of the legislature which in view of the growing importance of the cinematograph film as a powerful media of expression and the highly complex, technical and scientific process and heavy capital outlay involved in its production has sought to recognise as a separate entity and to treat a record embodying the record- ing in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood. [220 G-H; 221 A-G] (4)Clauses (d), (v), (f), (m), (v) and (y) of section 2, section 13(1) and 14(1)(c), provisos (b) and (c) to section 17 and section 22 and 26 of the Act abundantly make it clear that protectable copyright (comprising a bundle of exclusive rights mentioned in section 14(1)(c) of the Act comes to 210 vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion are synchronized. [221 H; 222 A] (5) The rights of music ........ composer or lyricist can be defeated by the producer of a cinematograph film in the manner laid down in proviso (b) and (c) of section 17 of the Act. In both the. cases falling under clauses (b) and (c) of s. 17, a cinematograph film producer becomes the. first owner of the copyright and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on one hand and the producer of the cinemato- graph film on the other. [222 D-F] Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, quoted with approval. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 967 of 1975. (From the judgment and order dated 13-2-1974 of the Calcut- ta High Court in Copyright No. 2/73). A.K. Sen, E.P. Skons James, J. 1. Mehta, J. Roy Choud- hary, S.K. Mehta, K.R. Nagaraja and P.N. Puri, for the appellant. S. Chaudhury, R.K. Bachawat, D.K. Sinha, H.S. Parihar and I. N. Shroff, for respondents 1-5 and 12 and 22. J.C. Bhat, Atul Munim and B.R. Agarwala, for respondents 6- 8. B. Sen, B.K. Bachawat, D.K. Sinha, H.S. Parihar and I. N. Shroff, for respondents 12 and 22. J.L. Nain, Atul Munim and B. R. Agarwala, for re- spondent No. 19. The Judgment of the Court was delivered by Jaswant Singh, 3., V.R. Krishna Iyer, J. also gave a separate opin- ion. JASWANT SINGH, J. This appeal by certificate granted under Article 133(1) of the Constitution by the High Court of Judicature at Calcutta which is directed against its judgment dated February 13, 1974, raises the following substantial question of law of general importance :-- "Whether in view of the provisions of the Copyright Act, 1957, an existing and future rights of music ...... composer, lyricist is capable of assignment and whether the producer of a cinematograph film can defeat the same by engaging the same person." The facts giving rise to the appeal are: The Indian Performing Right Society Ltd. (hereinafter referred to for the sake of brevity as 'the IPRS'), the appellant before us, was incorporated in the State of Maharashtra on August 23, 1959, as a company limited by guarantee, for the purpose of carrying on business in India of issuing or granting li- cences for performance in public of all existing and future Indian Musical works in which copyright subsists in India. The incorporation of the IPRS was in terms of section 2(r) of the Copyright Act, 211 1957 (Act 14 of 1957) (hereinafter referred to as 'the Act') which was enacted after taking into consideration the Report of the (British) Copyright Committee,1952, the suggestions of the various Ministries of the Government of India and the State Governments, the Indian Universities and certain interested industries and associations who were invited to send their comments on the subjects of copyright. The IPRS has amongst its members the composers of musical works, authors of literary and dramatic works and artists. In accordance with the provisions of section 33 of the Act, the IPRS published on September 27, 1969 and November 29, 1969 in the 'Statesman' and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licences far perform- ance in public of works in respect of which-it claimed to be an assignee of copyrights and to have authority to grant the aforesaid licences. A number of persons including various associations of producers of cinematograph films who claimed to be the owners of such films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the aforesaid tariff in accordance with the provisions of section 34 of- the Act repudiating the claim of the IPRS that it had on behalf of its members authority to grant licences for. performance in public of all existing and future musical works which are incorporated in the sound track of cinematograph films in which copyright may subsist in India or the right to collect in relation thereto any fees, charges or royalties. The association of producers averted inter alia that their members engaged composers and sound writers under contracts of service for composing songs to be utilised in their films; that the musical works prepared by the composers of lyric and music under contract of service with their mem- bers-producers of the cinematograph films--having been utilised and incorporated in the sound track of the cinemat- ograph films produced by the latter, all the rights which subsisted in the composers and their works including the right to perform them in public became the property of the producers of the cinematograph films and no copyright sub- sisted in the composers which they could assign to and become the basis of the claim of the IPRS under section 33 of the Act; that their members i.e. the producers of cine- matograph films being the authors and first owners of the copyright in the cinematograph films produced by them had the exclusive right inter alia to cause the said films in so far as the same consisted of sounds (which include musical works) to be heard in public as also the exclusive right to make records embodying the sound track of the films produced by them (including any musical work incorporated therein) and to cause the said records to be beard in public; that in the making of a cinematograph film as contemplated by the Act a composer composes a lyric or music under a contract of service or for valuable consideration which is substantial a music director sets it to tunes and imparts music to it and a singer sings the same but none of them nor any one of their aforesaid works can and have any separate copyrights; that motion picture is the combination of all arts and music in the sound track which cannot be detached from the film itself; that the purpose of making a motion picture is not only to complete it but also to publicly exhibit it through- out the world; that having regard to the provisions of the Act the' copyright in the case of 212 a cinematograph film vests in the owner of the film as defined in section 2(d) (v) of the Act; and that in the premises any assignment purporting to have been made in favour of the IPRS was void and of no effect and was incapa- ble of conferring any rights whatsoever in such musical works on the IPRS. The Cinematograph Exhibitors Association of India also filed objections challenging the right of the IPRS to charge fees and royalties in respect of performance in public of the musical works incorporated in the sound track of the films. Besides raising contentions identical to those raised by various associations of producers they averred that copyright in a cinematograph film which vested in the producers meant copyright in the entirety of the film as an integrated unit including the musical work incorporated in the sound track of the film and the right to perform the work in public; that in accordance with the agreement with the distributors of films the exhibition of cinematograph film includes the right to play in public the music which is an integral part and parcel of the film; that the producers lease out copyrights of public performance of the films vested in them to the distributors who give those rights to the exhibitors an agreement and that when an exhibitor takes a licence for exhibition, it is complete in all respects and a third party like the IPRS cannot claim any licence fee from the exhibitors. On the aforesaid objections being referred to it for determination under section 35 of the Act, the Copyright Board expressed the view that in the absence of proof to the contrary, the composers of lyrics and music retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and musical works were printed or written and that they could assign the performing right in public to the IPRS. The Copyright Board further held that the tariff as published by the IPRS was reasonable and the IPRS had the right to grant licences for the public performance of music in the sound track of copyrighted Indian cinematograph films and it could collect fees, royalties and charges in respect of those films with effect from the date on which the tariff was published in the Gazette of India. Aggrieved by the decision of the Copyright Board, the objectors preferred an appeal under section 72 of the Act to the High Court which allowed the same holding that unless there is a contract to the contrary, a composer who composes a lyric or music for the first time for valuable considera- tion for a cinematograph film does not acquire any copyright either in respect of film or its sound track which he is capable of assigning and that under proviso. (b) to section 17 of the Act, the owner of the film at whose instance, the composition is made, becomes the first owner of the copy- right in the composition. The High Court further held that "the composer can claim a copyright in his work only if there is an express agreement between him and the owner of the cinematograph film reserving his copyright". The High Court also held that "though section 18 of the Act confers power to make a contract of assignment, the power can be exercised only when 213 there is an 'existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect". Dissatisfied with this decision, the IPRS has,as already stated, come up in appeal to this Court. The copyright law in our country being fairly complicat- ed because of the involved language in which some of its provisions are couched and the case being of first impres- sion, learned counsel for the parties have tried hard to help us in solving the knotty points by advancing copious and able arguments. Appearing on behalf of the appellant, Mr. Ashok Sen has urged that the author (composer) of a literary or musical work has copyright which includes inter alia the exclusive right (a) to perform the work in public 'and (b) to make any cinematograph film or a record in respect of the work; that copyright in a literary or musical work is infringed by any person if without a licence granted to him by the owner of the copyright, he makes a cinematograph film in respect of the work or performs the work in public by exhibiting the cinematograph film; that if a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the permission not only of the owner of the copyright in the cinematograph film but also the permission of the owner of the copyright in the literary or musical work which is incorporated in the cinematograph film, as according to section 1. 3 (4) of the Act, the copyright in a cinematograph film or a record does not affect the separate copyright in any work i.n respect of which or a substantial part of which, the film, or as the case may be, the record is made; that the provisions of section 17(b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work em- bodied in a cinematograph film; that the only modes in which the author of a literary or musical work ceases to be the owner of copyright m the work are (a) by assignment, '(b) by relinquishment and (c) by the composer composing the work in 'the course of his employment under a contract of service with an employer in which case, the employer becomes the owner of the copyright in the musical work; that in the case of an assignment of copyright in future work and the employ- ment of the author to produce a work under a contract of service, the question of priorities will be decided ac- cording to the principle "where equities are equal, the first in time shall prevail". Mr. Sachin Chaudhary, learned counsel for respondents 1, 2 and 3, as well as Mr. J.C. Bhat, learned counsel for respondents 6, 7 and 8, and Mr. J.L. Nain, learned counsel for respondent 19, who followed Mr. Chaudhary have on the other hand submitted that the dispute in the instant case, according to the petition of appeal, the judgment of the Copyright Board and the judgment of the Calcutta High Court is confined to the sound track associated with a cinemato- graph film (which expression, according to Copinger and Skone James on COPYRIGHT, means "any record of sounds which is incorporated in any print, negative, tape or other arti- cle on which the film or part of it, in so far as it con- sists of visual images, is recorded, or which is issued by the maker 214 Of the film for use in conjunction with such an article"); that the contention advanced on behalf of the appellant that copyright in a literary or musical work incorporated in the sound track of a cinematograph film vests in the composer of literary or musical work and when the cinematograph film is performed i.e. exhibited in public, the composer is entitled to fee or royalty in that behalf and since the appellant is the assignee of the copyright from the composers, it has the right to collect the fee or royalty is entirely unfound- ed; that unlike (the law) in England, in India unless a music is notationally written, printed or graphically repro- duced, it is not musical work within the meaning of the Copyright Act and there is no copyright 'in songs or orches- tral pieces sung or played directly without its notation being written' that since a 'cinematograph film' is defined in section 2(f) of the 'Act as including the sound track and the 'cinematograph' is required to be construed to include any work produced by any process analogous to cine- matography, the owner of the cinematograph film is the firt owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film; that in the case of the film in which a lyric (which literally means a short poem directly expressing the poet's own thoughts and sentiments in stan- zas falling within the purview of the expression "literary work" as defined in section 2(0) of the Act) has been plagiarised, there will be copyright in the film vesting in the producer; that the Act confers a separate copyright on a cinematograph film as a film, its author under section 2(d)(v) of the Act being the owner of the film at the time of its completion; that in the case of a lyric or music incorporated in the sound track of a cinematograph film, since under section 2(f) of the Act, cinematograph film includes its sound track and section 13(1)(b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the owner of copyright the. right to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the composer of the lyric or of the music incorporated in the sound track of a cinematograph film for exhibiting or causing the exhibition of the sound portion of the film in public or for causing the records of the sound track of the film to be heard in public. They have further urged that it is not correct to say that under section 17, proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in it, the making of the entire film should be commis- sioned. According to counsel for respondents section 17 proviso (b) will equally apply if someone is commissioned to make any component part of a cinematograph film such as a lyric or musical work i.e. when such component of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer; that as the Act confers a sepa- rate copyright on a cinematograph film as a film, the pro- ducer can exercise both the rights conferred on him under section 14(1).(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section 14(1)(a) and (b) shall co-exist with those created by section 14(1)(c) and (d) of the Act, e.g. under clause (a), the 215 copyright in a literary work such as a novel entitles its author to make a cinematograph film in respect of the work, and to exercise the remaining rights created by section 14(1)(a) of the Act. But once he has licensed someone to make a cinematograph film, the licensee shall have the rights provided in clauses (c) and (d) of section 14(1) of the Act in respect of the film. We have given our earnest consideration to the submis- sions made by learned counsel for the parties. So far as the first part of the question reproduced above is con- cerned, there is no dispute between the parties. Both sides are agreed that in view of the provisions of section 18 of the Act, the material portion of which lays down that--"(1) the owner of the copyright in an existing work-or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partial- ly and either generally or subject to limitations and either for the whole term of the copyright or any part thereof; provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence, (2)where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly", the first part of the question should be answered in the affirmative. It is accordingly held that an existing and future right of music ...... composer and lyricist in their respective 'works' as defined in the Act is capable of assignment subject to the conditions mentioned in section 18 of the Act, as also in section 19 of the Act which requires an assignment to be in writing, signed by the assignor or by his duly authorised agent. It is the second part of the question which has been a hot bed of controversy between the parties that has got to be tackled. The main point for determination in regard to this part of the question is whether the composer of lyric or musical work (which in terms of section 2(p) of the Act means only a notationally written, printed or graphically produced or reproduced music) retains a copyright in the lyric or musical work if he grants a licence or permission to an author (owner) of a cinematograph film for its incor- poration in the sound track of a cinematograph film. For a proper appreciation and determination of the contentions raised before us, it is necessary to notice certain provi- sions of the Act. The terms 'author', 'Cinematograph film', 'exclusive licence', 'infringing copy', 'musical work', 'performance' performing rights society', 'radio-diffusion' and 'work' are defined in clauses (d), (f), (j), (m), (p), (q), (r), (v) and (y) respectively of section 2 of the Act as under :-- "(d) author means,-- (i) in relation to a literary or dramatic work, the author of the work; 5--240SC I / 7 7 216 (ii) in relation to a musical work, the com- poser; (iii) ** ** ** (iv) ** ** ** (v) in relation to a cinematograph film, the owner of the film at the time of its comple- tion; and (vi) in relation to a record, the owner of the original plate from which the record is made, at the time of the making of the plate". "(f) cinematograph film includes the sound track, if any, and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography." "(j) exclusive licence means a licence which confers on the licensee or on the licen- see and persons authorised by him. to the exclusion of all other persons (including the owner of the copyright), any right comprised in the copyright in a work, and "exclusive licensee" shall be construed accordingly." "(m) infringing copy means,-- (i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematograph film; (ii) in relation to a cinematograph film, a copy of the film or a record embodying the recording in any part of the sound track associated with the film; (iii) ** ** ** (iv) ** ** **" "(p) musical work means any combination of melody and harmony or either of them, printed, reduced to writing or otherwise graphically produced or reproduced". "(q) performance includes any mode of visual or acoustic presentation including any such presentation by the exhibition of a cinematograph film, or by means of radiodif- fusion, or by the use of a record, or by any other means and, in relation to a lecture, includes the delivery of such lecture". "(r) performing rights society means a society, association or other body, whether incorporated or not, which carries on business in India of issuing or granting licences for the performance in India of any works in which copyright subsists". 217 (v) radio-diffusion includes communication to the public by any means of wireless diffu- sion whether in the form of sounds or visual images or both". "(y) work means any of the following works, namely-- (i) aliterary, dramatic, musical or artistic work; (ii) a cinematograph film; (iii) a record". Section 13 of the Act provides as follows :-- "13. Works in which copyright subsists.--(1) Subject to the provisions of this section-and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,-- (a) original literary, dramatic musical and artistic works; (b) cinematograph films; and (c) records. (2) ** ** ** (3) Copyright shall not subsist-- (a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; (b) in any record made in respect of a liter- ary, dramatic or musical work, if in making the record, copyright in such work has been infringed. (4) The copyright in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made. (5) ** ** ** Section 14 of the Act which contains the meaning of the expression "copyright" is to the following effect :-- "14. Meaning of copyright."--(1) For the purposes of this Act: "copyright" means the exclusive right, by virtue of, and subject to the provisions of, this Act,-- (a) in the case of literary, dramatic or musical work, to do and authorise the doing of any of the following acts, namely-- (i) to reproduce the work in any material form; (ii) to publish the work; (iii) to perform the work in public; 218 (iv) to produce, reproduce, perform or publish any translation of the work; (v) to make any cinematograph film or a record in respect of the work; (vi) to communicate the work by radio-diffu- sion or to communicate to the public by a loud-speaker or any other similar instrument the radio-diffusion of the work; (vii) to make any adaptation of the work; (viii) to do in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in clauses (i) to (vi): (b) ** ** ** (c) in the case of a cinematograph film, to do or authorise the doing of any of the following acts, namely- (i) to make a copy of the film; (ii) to cause the film, in so far as it con- sists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public; (iii) to make any record embodying the record- ing in any part of the sound track associated with the film by utilising such sound track; (iv) to communicate the film by radio-diffu- sion; (d) in the case of a record, to do or authorise the doing of any of the following acts by utilising the record, namely-- (i) to make any other record embodying the same recording; (ii) to cause the recording embodied in the record to be heard in public; (iii) to communicate the recording embodied in the record by radio-diffusion. (2) Any reference in sub-section (1) to the doing of any act in relation to a work or a translation or an adaptation thereof shall include a reference to the doing or that act in relation to a substantial part thereof". Section 17 of the Act which relates to ownership of copyright provides as under :-- "17. First owner of copyright.---Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein; Provided that-- 219 (a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agree- ment to the contrary. be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work; (b) Subject to the provisions of clause (a), in the case of a photograph taken, or a paint- ing or portrait drawn, or an engraving or a cinematograph film made. for valuable consid- eration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (c) in the case of a work made in the course of the author's employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (d) ** ** ** (e) ** ** ** Sections 22 and 26 of the Act which deal with the term of copyright in musical and other works and cinematograph films are to the following effect :-- "22. Term of copyright in published liter- ary, dramatic musical and artistic works.--Except as otherwise hereinafter pro- vided, copyright shall subsist in any liter- ary, dramatic, musical or artistic work (other than a photograph) published within the life- time of the author until fifty years from the beginning of the calendar year following the year in which the author dies. Explanation.--In this section, the refer- ence to the author shall, in the case of a work of Joint authorship, be construed as a reference to the author who dies last . "26. Term of copyright in cinematograph films. In the case of a cinematograph film, copyright shall subsist until fifty years from the beginning of the calendar year next fol- lowing the year in which the film is pub- lished". 220 Section 30 of the Act which deals with grant of licences by owners of copyright runs thus :-- "30. Licences by owners of copyright.--The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing signed by him or by his duly authorised agent: Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when the work comes into existence. Explanation.--When a person to whom a licence relating to copyright in any future work is granted under this section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the licence, is entitled to the benefit of the licence". The interpretation clause (f) of section 2 reproduced above, which is not exhaustive, leaves no room for doubt when read in conjunction with section 14(1)(c)(iii) that the term "cinematograph film" includes a sound track associated with the film. In the light of these provisions, it cannot be disputed that a "cinematograph film" is to be taken to include the sounds embodied in a sound track which is asso- ciated with the film. Section 13 recognises 'cinematograph film' as a distinct and separate class of 'work' and de- clares that copyright shall subsist therein throughout India. Section 14 which enumerates the fights that subsist in various classes of works mentioned in section 13 provides that copyright in case of a literary or musical work means inter alia (a) the right to perform or cause the performance of the work in public and (b) to make or authorise the making of a cinematograph film or a record in respect of the work. It also provides that copyright in case of cinemato- graph film means. among other rights, the right of exhibit- ing or causing the exhibition m public of the cinematograph film i.e. of causing the film in so far as it consists of visual images to be seen in public and in so far it consists of sounds to be heard in public. Section 13(4) on which Mr. Ashok Sen has leaned heavily in support of his contentions lays down that the copyright in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made. Though a conflict may at first sight seem to exist between section 13(4) and section 14(1) (a) (iii) on the one hand and sec- tion 14(1) (c) (ii) on the other, a close scrutiny and a harmonious and rational instead of a mechanical construction of the said provisions cannot but lead to the irresistible conclusion that once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film producer to make a cinematograph film in respect of his work and thereby to have, his work incorporated or recorded on the sound track of a cinematograph film, the latter acquires by virtue of section 14(1)'(e) of the Act on completion of the cinematograph film a copyright which gives 221 him the exclusive right inter alia of performing the work in public i.e. to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in pub- lic. In other words, a distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which in the words of British Copyright Committee set up in 1951 relates both to copying the film and to its performance in public. Thus if an author (composer) of a lyric or musical work authorises a cinematograph film pro- ducer to make a cinematograph film of his composition by recording it on the sound track of a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act on which Mr. Ashok Sen has strongly relied can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. The composer of a lyric or a musical work, however, retains the right of performing it in public for profit otherwise than as a part of the cinematograph film and he cannot be re- strained from doing so. In other words, the author (com- poser) of lyric or musical work who has authorised a cinematograph film producer to. make a cinematograph film of his work and has thereby permitted him to appropri- ate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising the communication of the film by radio-diffu- sion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of the cinematograph film to do all these things. In such cases, the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the express provisions of clauses (f), (m), (y) of section 2, section 13(1)(b) and section 14(1)(c) of the Act otiose but would also defeat the intention of the Legislature, which in view of the growing importance of the cinemato- graph film as a powerful media of expression, and the highly complex technical and scientific process and heavy capital outlay involved in its production, has sought to recognise it as a separate entity and to treat a record embodying the recording in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood. On a conspectus of the scheme of the Act as disclosed in the provisions reproduced above particularly clauses (d)(v), (f) (m), (v)and (y) of section 2, sections 13(1) and 14(1)(c), provisos (b)and (c) to section 17 and sections 22 and 26 of the Act, it is, therefore, abundantly clear that a protectable copyright (comprising a 222 bundle of exclusive rights mentioned in section 14(1)(c) of the Act) comes to vest in a cinematograph film on its com- pletion which is said to take place when the visual portion and audible portion are synchronized. This takes us to the core of the question namely, wheth- er the producer of a cinematograph film can defeat the right of the composer of music .... or lyricst by engaging him. The key to the solution of this question lies in provisos (b) and (c) to section 17 of the Act reproduced above which put the matter beyond doubt. According to the first of these provisos viz. proviso (b) when a cinematograph film producer commissions a composer of music or a lyricst for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric there- fore i.e. the sounds for incorporation or absorption in the sound track associated with the film, which as already indicated, are included in a cinematograph film, he becomes the first owner of the copyright therein 'and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on the one hand and the producer of the cinematograph film on the other. The same result follows according to aforesaid proviso (c) if the composer of music or lyric is employed under a contract of service or apprentice.ship to compose the work. It is, therefore, crystal clear that the rights of a music composer or ....lyricst Can be defeated by the producer of a cinemat- ograph film in the manner laid down in provisos (b) and (c) of section 17 of the Act. We are fortified in this view by the decision in Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, relied upon by Mr. Sachin Chaudhary where it was held that the music composed for reward by the plain- tiff in pursuance of his engagement to give effect to cer- tain situations in the drama entitled "Lady Andley's Secret", which was to be put on the stage was not an inde- pendent composition but was merely an accessory to and a Fart and parcel of the drama and the plaintiff did not have any right in the music. For the foregoing reasons, we do not find any justification to interfere with the order of the High Court. Conse- quently, the appeal fails and is dismissed but in the circumstances of the case without any order as to costs. KRISHNA IYER, J.---The judgment just delivered is on behalf of the Court, which makes this footnote, in a sense, otiose. But I do append the abbreviated opinion solely to belight a slightly penumberal area of the law and to voice a need for legislative exploration to protect a category now left in the cold. A cinematograph is a felicitous blend, a beautiful totality, a constellation of stars, if I may use these lovely imageries to drive home my point, slurring over the rule against mixed metaphor. Cinema is more. than long strips of celluloid, more than miracles in photography, more than song, dance and dialogue and indeed, more than dramatic story, exciting plot, gripping situations and marvellous acting. But it is that 223 ensemble which is the finished product of orchestrated performance by each of the several participants, although the components may, sometimes, in themselves be elegant entities. Copyright in a cinema film exists in law, but s. 13(4) of the Act preserves the separate survival, in its individuality, of a copyright enjoyed by any 'work' notwith- standing its confluence in the film. This persistence of the aesthetic 'personality' of the intellectual property cannot cut down the copyright of the film qua film. The latter right is, as explained earlier in my learned broth- er's judgment, set out indubitably in s. 14(1)(c). True, the exclusive right, otherwise called copyright, in the case of a musical work extends to all the sub-rights spelt out in s. 14(1)(a). A harmonious construction of s. 14, which is the integral yoga of copyrights in creative works, takes us to the soul of the subject. The artist enjoys his copyright in the musical work, the filmproducer is the master of his combination of artistic pieces and the two can happily co- exist and need not conflict. What is the modus vivendi ? The solution is simple. The film producer has the sole right to exercise what is his entitlement under s. 14(1)(c) qua film, but he cannot trench on I the composer's copyright which he does only if the 'music' is performed or produced or reproduced separately, in violation of s. 14(1)(a). For instance, a film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or other theatre. To do that is the privilege of the composer and that right of his is not crowned in the film copyright except where there is special provision such as in s. 17, proviso (c). So, beyond exhib- iting the film as a cinema show, if the producer plays the songs separately to attract an audience or for other reason, he infringes the composer's copyright. Anywhere, in a restaurant or aeroplane or radio station or cinema theatre, if a music is played, there comes into play the copyright of the composer or the Performing Arts Society. These are the boundaries of composite creations of art which are at once individual and collective, viewed from different angles. In 'a cosmic perspective, a thing of beauty has no boundary and is humanity's property but in the materialist plane on which artists thrive, private and exclusive estate in art subsists. Man, the noblest work of the Infinite Artist, strangely enough, battles for the finite products of his art and the secular law, operating on the temporal level, guard- ians material works possessing spiritual values. The enig- matic small of Mona, Lisa is the timeless heritage of man- kind but, till liberated by the prescribed passage of time, the private copyright of the human maker says, 'hands off'. The creative intelligence of man is displayed in multiform ways of aesthetic expression but it often happens that economic systems so operate that the priceless divinity which we call artistic or literary creativity in man is exploited and masterS, whose works are invaluable, are victims of piffling payments. World opinion in defence of the human right to intellectual property led to internation- al conventions and municipal laws, commissions, codes and organisations, calculated to protect works of art. India responded to this universal need by enacting the Copyright Act, 1957. 224 Not the recommendations in conventions but provisions in municipal laws determine enforceable rightS. Our copyright statute protects the composite cinematograph work produced by lay-out of heavy money and many talents but does not extinguish the copyrightable component parts in toto. The music which has merged, through the sound track, into the motion picture, is copyrighted by the producer but, on account of this monopoly, the music composer's copyright does not perish. The twin rights can co-exiSt, each ful- filling itself in its delectable distinctiveness. Section 14 has, in its careful arrangement of the rights belonging to each copyright, has a certain melody and harmony to miss which is to lose the sense of the Scheme. A somewhat un-Indian feature we noticed in the Indian copyright Act falls to be mentioned. Of course, when' our law is intellectual 'borrowing from British reports, as admittedly it is, such exoticism is possible. 'Musical work', as defined in s.2 ( p) reads: "(p) musical work means any combina- tion of melody and harmony or either of them printed, re duced to writing or otherwise graphically produced or reproduced." Therefore, copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonderful render- ing. It is the melody or harmony reduced to print, writing or graphic form. The Indian music lovers throng to listen and be enthralled or enchanted by the nada brahma, the sweet concord of sounds, the rags, the bhava, the lava and the sublime or exciting singing. Printed music is not the glamour or glory of it, by and large, although the content of the poem or the lyric or the song does have appeal. Strangely enough, 'author', as defined in s.2(d), in rela- tion to a musical work, is only the composer and s. 16 confies 'copyright' to those works which are recognised by the Act. This means that the composer alone has copyright in a musical work. The singer has none. This disentitle- ment of the musician or group of musical artists to copy- right is un-Indian, because the major attraction which lends monetary value to a musical performance is not the music maker, so much as the musician. Perhaps, both deserve to be recognised by the copyright law. I make this observation only because act in one sense, depends on the ethos and the aesthetic best of a people; and while universal protection of intellectual and aesthetic property of creators of 'works' is an international obligation, each country in its law must protect such rights wherever originality is con- tributed. So viewed, apart from the music composer, the singer must be conferred a right. Of course, law-making is the province of Parliament but the Court must communicate to the lawmaker such infirmities as exist in the law extant. S.R. Appeal dismissed. 225