Patna HC Quashes FIR Against Prashant Kishor Over Alleged Theft Of INC's 2020 Bihar Campaign Intellectual Property

The Patna High Court has quashed an FIR against political strategist Prashant Kishor in a case over allegations that he used campaign materials claimed as intellectual property by Shashwat Gautam, a data analytics professional associated with the Indian National Congress.

The court held that criminal law cannot be invoked merely by invoking the phrase “intellectual property” where the allegations do not disclose any offense. The bench further found that the material claimed by Gautam was substantially derived from publicly available sources.

"A derivative work drawing heavily from the public sources such as census reports and economic surveys does not and could not qualify for the protection as asserted by the informant. It is already crystallised that there can be no copyright in an idea, subject matter or themes. The informant can not use the phrase 'intellectual property' as an incantation to invoke the rigours of criminal law", the court held.

Allowing Kishor's petition, Justice Sandeep Kumar held that “none of the penal sections invoked in the F.I.R. are attracted against the petitioner in the facts of the present case.” The court said continuation of the proceedings would amount to abuse of process.

The FIR was registered in February 2020 on Gautam's complaint. It invoked IPC provisions dealing with forgery, cheating, criminal breach of trust and criminal conspiracy.

Gautam alleged that ahead of the Bihar Assembly elections, he had developed a data-driven political campaign titled 'Bihar Ki Baat.' He claimed it included a concept note, campaign designs, workflow materials, algorithms and socio-economic datasets.

According to Gautam, Osama Khurshid, who had been associated with him as a political activist, left with an office laptop containing those materials. Gautam alleged Khurshid acted at Kishor's behest. He claimed Kishor later used the material to launch his Baat Bihar Ki campaign.

Gautam also alleged that Kishor had purchased a similar website domain. He claimed material belonging to him was published there without consent.

Kishor argued that the FIR was a politically motivated attempt to malign him ahead of the elections. He contended that the dispute, if any, was civil in nature and had been wrongly given a criminal colour.

Examining the forgery charges, the court held that the allegations did not disclose the basic ingredients of offences under Sections 467, 468 and 471 IPC. These provisions deal with forgery and use of forged documents.

“The present F.I.R. discloses no offence under sections 467, 468 or 471 of the Code, since there is not even a whisper of allegation that the petitioner made, signed, sealed or executed any document whatsoever, much less a document that could be characterised as a false document,” the court held.

On the cheating charge under Section 420 IPC, the court said the FIR failed to disclose deception, dishonest inducement, or delivery of property. It said these are essential ingredients of the offence.

“The F.I.R. does not contain any allegation that there ever existed a transaction inter se the informant and the petitioner,” the court said.

It added, "None of these allegations even approaches the ingredients of section 415, and none can sustain the rigors under section 420 of the I.P.C.”

The court ultimately held that none of the invoked penal provisions, including Section 406 IPC, were attracted. The conspiracy charge under Section 120-B IPC also could not survive once the substantive offences themselves were found inapplicable.

Rejecting Gautam's assertion of protected intellectual property over the campaign concept, the court relied on the Supreme Court's ruling in R.G. Anand v. Delux Films. It reiterated that copyright does not subsist in mere ideas, themes, or subject matter.

The court also referred to the Supreme Court's ruling in Krishika Lulla v. Shyam Vithalrao Devkatta. In that case, criminal proceedings arising from alleged appropriation of creative material were quashed.

Noting that Gautam had already pursued a civil remedy through a pending title suit over the same dispute, the court held criminal prosecution could not be allowed to continue.

“The informant cannot therefore be permitted to give criminal colour to the proceedings,” the court said.

Quashing the FIR and all consequential proceedings against Kishor, the court held that where allegations, taken at face value, fail to disclose even a prima facie offence, continuation of criminal proceedings would amount to abuse of process requiring intervention by a constitutional court.