The dilemma of cognizance-an insight

admin | May 23, 2019 | Law | No Comments

This article was written by Neeraj Grover, Advocate, Delhi High Court

In the present article, I shall deal with two criminal offences which are rampantly complained of in present day scenario namely

Criminal Intimidation defined under Section 503 and Punishable under Section 506 Indian Penal Code, 1860
Offence of Infringement of Copyright and/or Other rights conferred by Copyright Act, 1957 punishable under Section 63 Copyright Act, 1957

Background:

In criminal law a basic check while complaining of a criminal offence being committed is that whether the offence is Cognizable or Non-Cognizable.

The difference between ”cognizable” and ”non-cognizable” offence is that in case of a cognizable offence, a police officer may register an FIR upon a complaint being made before him or the facts alleging such offence being brought to his notice and arrest an offender without warrant and that in case of a non-cognizable offence, a police officer has no authority to register an FIR and arrest an offender without warrant. (See Section 2 (c), 2 (l), Section 154, 155 Cr.P.C., 1973)

Along with Cognizability of an offence, the offence being bailable or non-bailable is also a relevant factor which decides if the Police Officer can upon arrest of an offender release him on bail by accepting bail bonds furnished by the offender (in bailable cases) or such power is only vested in a magistrate (in non bailable cases)

The First Schedule to the Code of Criminal Procedure, 1973 (“Cr.P.C.”) provides the classification of offences wherein the particular offence being Cognizable/non-cognizable and bailable/non-bailable is provided.

The Classification is divided in two parts.

Part I gives the classification of all offences punishable under the Indian Penal Code, 1860 (“IPC”) while Part –II deals with the offences under other laws and special acts like the Copyright Act, 1957.

Now I shall proceed to discuss the two offences, mentioned aforesaid separately:

(I) CRIMINAL INTIMIDATION DEFINED UNDER SECTION 503 AND PUNISHABLE UNDER SECTION 506 INDIAN PENAL CODE, 1860

Section 503 of the IPC provides as under:

Criminal intimidation.—Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

Explanation.—A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section. Illustration A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B’s house. A is guilty of criminal intimidation.

Section 506 of the IPC provides as under:

Punishment for Criminal Intimidation.—Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Traditionally Criminal Intimidation has been classified as a non-cognizable and bailable offence even under the repealed Code of Criminal Procedure of 1898. The same continued to be reflected as such the part –I of the First Schedule to the 1973 Code.

In this background, in the year 1932, the Central Government had enacted Criminal Law Amendment Act, 1932 wherein Section 10 read as under:

”10. Power of State Government to make certain offences cognizable and non-bailable.

(1) The State Government may by notification in the Official Gazette, declare that any offence punishable under Sections 186, 189, 188, 190, 295A, 298, 505, 506 or 507 of the Indian Penal Code, when committed in any area specified in the notification shall notwithstanding anything contained in the Code of Criminal Procedure 1898, be cognizable, and thereupon the Code of Criminal Procedure, 1898 shall, while such notification remains in force, be deemed to be amended accordingly.

(2) The State Government may, in like manner and subject to the like conditions, and with the like effect, declare that an offence punishable under Section 188 or Section 506 of the Indian Penal Code shall be non-bailable.”

In pursuance of the aforesaid, some Union Territories and states issued relevant notifications declaring inter alia the offence under Section 506 to be Cognizable and Non-Bailable.

Pertinently, inDELHI,a notification was issued on 11th January 1933, that offences under Sections 186, 188, 189 and 506 of the Indian Penal Code would be cognizable and offences under Sections 188 and 506 would be non-bailable. Apparently such notification was issued in cities, where there were large political activities, the prevention of certain offences against public servants required a different treatment and it was felt necessary to empower the police to arrest persons likely to commit such offences without warrant so that movement may not succeed.

The Delhi notification read as follows:

“Delhi the 11th January 1933.

In exercise of the powers conferred by Section 10 of the Criminal Law Amendment Act 1932, the Chief Commissioner of Delhi is pleased to declare.

(1) That any offence punishable under Sections 186, 188, 189 and 506 of the Indian Penal Code, when committed in The Delhi Province, shall, notwithstanding anything contained in the Code of Criminal Procedure, 1898, be cognizable, and

(2) That any offence punishable under Sections 188 or 506 of the Indian Penal Code shall be non-bailable.

Sd/-

J.N.G. Johnson.

Chief Commissioner, Delhi,’

Similar notifications were issued in some other states including the following:

Tamil Nadu

In exercise of the powers conferred under Section 10,a aforesaid, the Government of Tamil Nadu issued G.O. Ms. No. S/4118-1/70 Public (S.C.) dated 03.08.1970, published in Tamil Nadu Government Gazette No. 260, Extraordinary Part II – Section 1 Madras, dated 3rd August, 1970 thereby declaring that any offence punishable under Section 188 and 506(ii) of IPC when committed in any place in the State of Tamil Nadu shall, notwithstanding anything contained in the Code of Criminal Procedure, 1898, be cognizable and non-bailable. After the said Government Order, in view of Section 10(1) of the Criminal Law Amendment Act, 1932, the Code of Criminal Procedure, 1898 was deemed to have been amended accordingly.

GOA, DAMAN & DIU

In Goa, Daman & Diu, vide notification dated 27th June, 1973 was issued in exercise of powers under Sub-section (1) and Sub-section (2) of Section 10 of the Criminal Amendment Act of 1932. The same reads as under:

“Home Department

Notification
HD. 44-104/73-A

In exercise of the powers conferred by Sub-section (1) and (2) of Section 10 of Criminal Law Amendment Act, 1932 (23 of 1932) the Lt. Governor of Goa, Daman and Diu hereby declares that-

(i) notwithstanding anything contained in the Code of Criminal Procedure, 1898, any offence punishable Under Sections 186, 188, 189, 228, 295-A, 298, 505 or 507 of the Indian Penal Code 1860 (45 of 1860) when committed within the Union Territory of Goa, Daman and Diu shall be cognizable; and

(ii) any offence punishable Under Section 188 or 506 of the Indian Penal Code 1860 shall be non-bailable when committed within the Union Territory of Goa, Daman and Diu.

G.M. Sardessai, Under Secretary (Home) Panaji, 27th June, 1973”

By the aforesaid notification, it was declared that the offences punishable under Sections 186, 188, 189, 228, 295-A, 298, 505 or 507 of the Indian Penal Code ,when committed within the Union Territory of Goa ,shall be cognizable. The said notification further provided that the offences punishable under Section 188 or 506 of the Indian Penal Code shall be non-bailable when committed within the said territory.

By corrigendum dated 5th July, 1973, Section 506 was added to the first part of the notification dated 27th June, 1973.

The effect of the said two notifications was that to that extent, the Criminal Procedure Code of 1898 stood amended. Thus, under the said Code of 1898, the offence punishable under Section 506, when committed within the Union Territory of Goa, Daman and Diu, became cognizable and non-bailable.

Effect of Repeal of the code of 1898 and enactment of Code of 1973.

The aforesaid notifications attained significance when the Criminal Procedure Code, 1973 was enacted and made effective from 25^th January 1974. In the new Cr.P.C.,again the offence under Section 506(i) of IPC was shown as bailable. However, no fresh Notification have been issued under Section 10 of the Criminal Law Amendment Act.

It is due to the aforesaid, a considerable confusion arose as to whether the earlier notification issued when the repealed Code was in force would be applicable in respect of the new Cr.P.C. also.

T this stage, it is relevant to reproduce the provisions of Section 484 of the Cr.P.C. which provides for repeal and savings:

Repeal and savings.- (1) The Code of Criminal Procedure, 1898 (5 of 1898), is hereby repealed.

(2) Notwithstanding such repeal, –

(a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), as in force immediately before such commencement, (hereinafter referred to as the Old Code), as if this Code had not come into force:

Provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code;

(b) all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the Old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code;

(c) any sanction accorded or consent given under the Old Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Code and proceedings may be commenced under this Code in pursuance of such sanction or consent;

(d) the provisions of the Old Code shall continue to apply in relation to every prosecution against a Ruler within the meaning of Article 363 of the Constitution.

(3) Where the period prescribed for an application or other proceeding under the Old Code had expired on or before the commencement of this Code, nothing in this Code shall be construed as enabling any such application to be made or proceeding to be commenced under this Code by reason only of the fact that a longer period therefore is prescribed by this Code or provisions are made in this Code for the extension of time.

Additionally Section 8 of General Clauses Act, 1897provides as under:

(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then reference in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted,

(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then references in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted

In this background while the question of validity of the notifications under the 1932 Amendment Act have come up before various courts from time to time and notable decisions are mentioned hereinabelow:

In Sant Ram v. Delhi State, 17 (1980) DLT 490, a Division Bench of the Delhi High Court held as under:

“Thus, the main grievance of the Petitioner that he has been proceeded against on an F.I.R. which was wrongly registered and the proceeding against him are void and Ultra Vires of Articles 14 of the Constitution as being discriminatory has to fail because the offences of which the Petitioner has been charged are cognizable as well as non-bailable in the Union Territory of Delhi as it now exists. The Petitioner urged that the effect of the passing of the Code of Criminal Procedure, 1973 was to terminate the effect of the said notification, but this is obviously not so. All notifications and laws previously in force are continued by Section 484(2) of the new Code, and in any case, the notification was issued under the Amendment Act, 1932 which is not at all affected by the repeal of the Code of Criminal Procedure of 1898”.

In Narendra Kumar and Ors. v. State, 2004 CRI.LJ. 2594, the Ld. Single Judge of the Delhi High Court again reaffirmed the view taken earlier in Sant Ram’s case. However, Justice J.D.Kapoor, expressed his anguish that the said declaration has been put in use for more than 70 long years without any periodical scanning and had been continued by Delhi Government without any application of mind. In para 23 of the Judgment, it was observed as follows:

“23. In my view continuation of such a notification issued way back in the year 1933 without reviewing the situation from time to time is not only an affront to the liberty of the citizens at large but has the tendency to subvert the law enacted by the Parliament and, therefore, for ends of justice and to maintain the sanctity of the law enacted by the Parliament as well as the liberty of citizens this Court orders that the notification No. 232-Home dated 11th January, 1933 issued by Mr. JNG Johnson, the ten Chief Commissioner of Delhi declaring the offence punishable under Section 506 IPC as “cognizable” and “non-bailable” which has continued for 70 long years without any review of the factors and conditions that necessitated it, shall cease to be in operation from 15th January, 2004 till the Government takes a review of the overall situation and decides as to the necessity of its continuation.”

Similarly the Division Bench of Gujarat High Court in VinodRao v. State of Gujarat 1981 CRI. L.J. 232, held as follows:

“14. The last contention which Mr. Pandit has raised is that the notification issued under Sub-sections (1) and (2) of Section 10 of the Criminal Law Amendment Act, 1932, with reference to Code of Criminal Procedure, 1898 cannot be regarded as a notification issued with reference to Code of Criminal Procedure 1973. The argument which Mr. Pandit has raised is that the fact of issuing a notification under Sub-sections (1) and (2) of Section 10 of the Criminal Law Amendment Act, 1932, was to amend the Code of Criminal Procedure, 1898. That Code has now been repealed. Therefore, the amendment which was made to that Code by the impugned notification could not be continued or read in the Code of Criminal Procedure, 1973. Mr. Pandit has in our opinion approached the question from a wrong angle and has, therefore, made an ill founded submission. In our opinion, the correct approach is to construe Section 10 in light of the rule of construction laid down in Section 8 of the General Clauses Act, 1897.

Applying the rule of construction laid down in Section 8 of the General Clauses Act, we must read in Section 10 of the Criminal Law Amendment Act, 1932. Code of Criminal Procedure, 1973 in place of the expression of “Code of Criminal Procedure, 1898”. When we so read it, it becomes clear that the notification issued under Section 10 with reference to Code of Criminal Procedure, 1898 should be read as having been issued with reference to the Code of Criminal Procedure, 1973. So far as the impugned notification is concerned, it also refers to the Code of Criminal Procedure, 1898. The rule of construction laid down in Section 8 of the General Clauses Act, 1897 also requires us to construe reference to the repealed enactment made in any “instrument” as reference to the repealing enactment or the new enactment which has been brought into force. The expression ‘instrument’ used in Section 8 of the General Clauses Act, 1897, in our opinion, necessarily includes a notification such as the impugned notification. Therefore, applying the rule of construction laid down in Section 8 of the General Clauses Act, 1897, we read both in Section 10 of the Criminal Law Amendment Act, 1932 and in the impugned notification reference to Code of Criminal Procedure, 1898, as a reference to Code of Criminal Procedure, 1973. Therefore, the effect of the notification issued under Section 10 in 1937 is to modify the relevant provisions in the Code of Criminal Procedure, 1973.”

In the meanwhile, certain states issued similar notifications even after the enactment of the New Cr.P.C.

In UTTAR PRADESH the offence under Section 506, I.P.C. was made cognizable and non-bailable vide U.P. Government Notification No. 777/VIII-94 (2)-87 dated July 31, 1989.

Similarly in HIMACHAL PRADESH, as per notification dated 9.3.1978, Section 506 IPC was made cognizable within the territory of Himachal Pradesh. The notification dated 9.3.1978 is as follows:

“No.Home (C ) F (8)1/77

In exercise of powers vested in him under Section 10 of the Criminal Law Amendment Act, 1932 the Governor, Himachal Pradesh is pleased to declare offences under Section 506 of the Indian Penal Code committed within the territory of Himachal Pradesh as cognizable.”

Further a notification dated 6.9.1980 issued by the State of Himachal Pradesh is clear to the effect that Section 506 IPC within the territory limits of State of Himachal Pradesh shall be non-bailable. The notification dated 6.9.1980 is as follows:

“No. Home-II (E)5-10/80.

In exercise of the powers vested in him, under sub-section (2) of section 10 of the Criminal Law Amendment Act, 1932 (Act No. 23 of 1932) and all other powers enabling him in this behalf, the Governor of Himachal Pradesh is pleased to declare that when any offence which is punishable under section 506 of the Indian Penal Code, 1860 (45 of 1860), is committed within the territorial limits of the State of Himachal Pradesh shall be non-bailable.”

Upon such enactment, the Division Bench of the Allahabad High Court took a contrary view in Virendra Singh and Ors. v. State of U.P. 2002 CRI. L.J. 4265 wherein speaking for the Bench, Hon’ble Mr. Justice Katju [as he then was] held that Section 10 of the Criminal Law Amendment Act has become redundant and otiose in view of Section 484 of the Code of Criminal Procedure, 1973 which has repealed the Code of Criminal Procedure, 1898. The Bench has further held that similar notification issued by the Government of Uttar Pradesh is illegal. In para 7 of the aforesaid judgment, the Allahabad High Court held as follows:

“7. Section 10 of the Criminal Law Amendment Act, 1932 does not give power to the State Government to amend by a notification any part of the Code of Criminal Procedure, 1973. Since the Code of Criminal Procedure Of 1898 has been repealed by Section 484 of the Code of Criminal Procedure Act, 1973 we are of the opinion that Section 10 of the Criminal Law Amendment Act, 1932 has become redundant and otiose. Hence, in our opinion no notification can now be made under Section 10 of the Criminal Law Amendment Act, 1932. Any such notification is illegal for the reason given above. Hence, we declare notification No. 777/VIII-9 4(2)-87, dated July 31, 1989 published in the U.P. Gazette, Extra Part 4, Section (kha), dated 2nd August 1989 by which Section 506 IPC was made cognizable and non-bailable to be illegal. Section 506 IPC has to be treated as bailable and non-cognizable.”

It appears that while passing the aforesaid Judgment, the attention of the Division Bench was not drawn to a Full Bench Judgment of Allahabad High Court in Mata SewakUpadhayvs State of UP and Ors 1995 AWC 2031, wherein the validity of the same notification was upheld.

Incidently, the Division Bench of Bombay High Court in Vishwajit P. RanevsState of Goa and Ors.2011 Cri LJ 1289 held as under:

“On a plain reading of Section 10 of the Act of 1932 it reveals that the power conferred by the said section was to amend the said Code of 1898 by making certain offences cognizable and non-bailable. Section 10 of the Act of 1932 does not empower the State Government to amend the First Schedule to the said Code of 1973 by making the offence punishable under Section 506 of the Penal Code cognizable and non-bailable. Even Section 8 of the General Clauses Act, 1897 will have no application. The said Code of 1973 is the law enacted by the Parliament. The said Code of 1973 is covered by Item 2 of List III (the concurrent list) of Seventh Schedule to the Constitution of India. The law made by the Parliament could have been amended only by an appropriate legislation by the State Government and no provision of the said Code of 1973 could have been amended only by issuing a notification. There is no power vesting in the State Government to amend the First Schedule to the said Code of 1973 by issuing a notification.”

The aforesaid conflict was carried on in few more decisions rendered by the High Courts and the issue finally reached the Supreme Court in Aires RoudriguesVsVishwajitP.Rane and Ors, AIR 2017 SC 731 in appeal to the aforementioned decision of the Division Bench of the Bombay High Court. The Hon’ble Supreme Court considered the various conflicting decisions and conclusively held as under:

“7. There is no dispute that the 1932 Act is a Central Legislation and even today it is operative and power conferred Under Section 10 can be exercised.

In these circumstances, merely because 1898 Code has been repealed and replaced by 1973 Code of Criminal Procedure, could not affect the situation. Section 484 of Code of Criminal Procedure, 1973 as well as Section 8(1) of the General Classes Act, 1897 saved a notification which may have been issued under Code of Criminal Procedure of 1898.
In these circumstances, we are unable to sustain the view taken in the impugned orders,
It is pointed out by learned Counsel for the Appellant that a contra view has been taken by the High Courts of Gujarat, Delhi, Allahabad and Madras in VinodRao v. The State of Gujarat and Anr.(1980) 2 GLR 926, Sant Ram v. Delhi State and Anr. 17 (1980) Delhi Law Times 490, Mata SewakUpadhyay and Anr. v. State of U.P. and Ors. 1995 JIC 1168 (All) (FB), P. Ramakrishnan v. State rep. by the Inspector of Police 2010-1-LW (Crl.) 848 respectively. He also pointed out that a different view has been taken by the High Court of Allahabad in PankajShukla v. Anirudh Singh 2011 (2) ADJ 472 without noticing the Full-Bench decision of the High Court of Allahabad in Mata SewakUpadhyay (supra).
It is not necessary to refer to all the above judgments. View taken in support of the notification remaining valid and operative in VinodRao (supra) is, inter alia, as follows:

Therefore, applying the rule of construction laid down in Section 8 of the General Clauses Act, we must read in Section 10 of the Criminal Law Amendment Act, 1932. Code of Criminal Procedure, 1973 in place of the expression of “Code of Criminal Procedure, 1898”. When we so read it, it becomes clear that the notification issued Under Section 10 with reference to Code of Criminal Procedure, 1898 should be read as having been issued with reference to the Code of Criminal Procedure, 1973. So far as the impugned notification is concerned, it also refers to the Code of Criminal Procedure, 1898. The Rule of construction laid down in Section 8 of the General Clauses Act, 1897 also requires us to construe reference to the repealed enactment made in any “instrument” as reference to the repealing enactment or the new enactment which has been brought into force. The expression ‘instrument’ used in Section 8 of the General Clause Act, 1897, in our opinion, necessarily includes a notification such as the impugned notification. Therefore, applying the rule of construction laid down in Section 8 of the General Clauses Act, 1897, we read both in Section 10 of the Criminal Law Amendment Act, 1932 and in the impugned notification reference to Code of Criminal Procedure, 1898, as a reference to Code of Criminal Procedure, 1973. Therefore, the effect of the notification issued Under Section 10 in 1937 is to modify the relevant provisions in the Code of Criminal Procedure, 1973. Therefore, the notification of 1937 as well as the subsequent notification issued in 1970 are relevant to the instant case.

Contra view is on lines of the impugned order relevant part of which has been reproduced above.
We approve the view taken by the High Courts of Gujarat, Delhi, Allahabad and Madras in VinodRao, Sant Ram, Mata SewakUpadhyay&Anr., and P. Ramakrishnan (supra) and disapprove the view taken by High Court of Allahabad in PankajShukla (Supra).”

Conclusion:

The Issue thus is settled and in some states/Union Territories where relevant notifications have been issued under the powers conferred by Section 10 of the Amendment Act of 1932, the same remain operative even under Cr.P.C, 1973 effectively amending the First Schedule as its appears in the said code. Resultantly the offence of Criminal Intimidation is a cognizable and bailable offence in Delhi, Goa, Ahmedabad, Uttar Pradesh, Himachal Pradesh and some other states.

(II) OFFENCE OF INFRINGEMENT OF COPYRIGHT AND/OR OTHER RIGHTS CONFERRED BY COPYRIGHT ACT, 1957 PUNISHABLE UNDER SECTION 63 COPYRIGHT ACT, 1957

Section 63 of the Copyright Act, 1957 provides as under:

Offence of infringement of copyright or other rights conferred by this Act.— Any person who knowingly infringes or abets the infringement of—

(a) the copyright in a work, or

(b) any other right conferred by this Act 1[except the right conferred by section 53A,

shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees

Provided that where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees

Explanation:— Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section

In Order to seek clarity on the aforementioned offence and also if the same is bailable or non-bailable, we need to consider the Part-II of First Schedule of the Cr.P.C. which reads as under:

As the offence under Section 63 is Punishable with imprisonment which may extend to three years, on a plain reading of the Schedule the offence under Section 63 should fall in the scope of Row 2 and is should be Cognizable and non-Bailable.

The aforesaid interpretation has been rightly affirmed by various high courts while some high Courts have held to the contrary and have held that the offence under Section 63 falls in the row 3 and is thus non-cognizable and bailable.

The relevant judgments dealing with the aforesaid aspect are mentioned below:

In Jitendra Prasad Singh v. State of Assam, reported in 2003 (26) PTC 486 (Gau.), the Hon’bleGauhati High Court held that offence under Section 63 of the Copyright Act, 1957 is cognizable and non-bailable offence and the provisions of Section 438 CrPC was held applied as an offence punishable for imprisonment in term, which may extend to three years.

In Hridayanada Sharma vs State of Assam reported as MANU/GH/0341/2003, Hon’ble Division Bench of Gauhati High Court through Hon’ble Justice RanjanGogoi (as his Lordship then was) observed as under:

The Apex Court having upheld the view of the Delhi High Court by dismissing the appeal filed by the accused there can be no two opinions that the view taken by the Apex Court is that the punishment under Section 386 IPC, i.e., for a term, which may extend to 10 years would be covered by the expression “imprisonment for a term not less than 10 years” as prescribed in Clause (i) of proviso (a) to Section 167(2) Cr.P.C. Following the ratio of the Apex Court judgment in RajeebChaudhary’s case (supra) what would logically follow is that the punishment prescribed under Section 68A of the Copyright Act being for imprisonment which may extend to period of 3 years, the punishment prescribed cannot be said to be less than 3 years as required under Part II of Schedule I of the Code of Criminal Procedure to make the offence bailable. Consequently, we answer the question raised, holding that the offence under Section 68A of the Copyright Act is a non-bailable offence.

In Abdul Sathar v. Nodal officer, Anti Piracy Cell, Kerala Crime Branch office &Anr., reported as 2007 (35) PTC 780 (Kerala), it was held that offence under Section 63 of the Copyright Act, 1957 was cognizable. The Following observations were made while coming to the aforesaid conclusion:

“4. I do not think it specifically necessary to go to any precedent. The language of provisions of Section 63 of the Copyright Act and the language of the relevant entries in the Schedule to the Code of Criminal Procedure make the position crystal clear. Part II of the Schedule to the Code classifies the offences as cognizable/non-cognizable and bailable/non-bailable and prescribes the forum for trial depending on the gravity of the punishment as ascertained from the nature of the sentence imposable for the offences under such other laws. Parliament has divided all offences under special laws into three categories. They are:

punishable with death, imprisonment for life, or imprisonment for more than 7 years.
punishable with imprisonment for 3 years, and upwards but not more than 7 years.
punishable with imprisonment for less than 3 years or with fine only.

(Emphasis supplied)

In simple language this means that there can be three categories of cases depending upon the maximum sentence which can be imposed. The first one deals with the offences which are punishable with imprisonment for more than 7 years. Those offences, for which punishment imposable is 7 years, do not come within this first clause. Only offences for which more than 7 years (not 7 years only) can be imposed do come within this first clause.

The second class is the class of offences in which punishment of imprisonment for 7 years and below are imposable. If punishment imposable is 7 years and below up to three years, the offences would fall within the second category. The Parliament which used the expression “for more than 7 years” to identify the first category had very cautiously used the words “3 years and upwards, but not more than 7 years” to identify the second category. The offences punishable with imprisonment for 3 years up to 7 years, both inclusive, will fall under this second category.
The third category is that of the offences punishable with imprisonment for less than 3 years or fine. Those punishable with imprisonment for three years do not come within this category evidently.
The offence on hand, the one under Section 63 of the Copyright Act, is punishable with imprisonment for a period of 3 years. There can therefore be no doubt that this falls under category 2 referred above and is consequently cognizable. No contra principle or precedent has been pressed into service before me. The attempt to rely on the decision of the Supreme Court in Rajeev Chaudhary v. State (NCT) of Delhi 2001CriLJ2941 cannot at any rate help the petitioners as the language used in the proviso to Section 167(2) is totally different from the language employed in the Schedule to the Code of Criminal Procedure.
In these circumstances I find no merit in the contention that the offence under Section 63 of the Copyright Act is not cognizable and that consequently the registration of the crime and the investigation undertaken in these cases are not justified and legal.”

In Sureshkumarvs The Sub Inspector of Police, reported in (2007) RD-KL 8954 dated 29th May, 2007, it was held as under:

“Para-3: A plain reading of the stipulations in the Schedule shows that if the offence is punishable with imprisonment for 3 years and upwards, but not more than 7 years, it must be reckoned as cognizable. Section 63, according to me, is clearly punishable with imprisonment for 3 years and in these circumstances the offence has to be held to be cognizable.”

In Rajesh GargVs.Tata Tea Ltd. and Ors., reported as 2011(46)PTC114(Del), the Delhi High Court while dealing with a matter under Section 78/79 of the TMM Act, 1958 & Section 63 Copyright Act, 1957 held that offences under Section 78/79 when committed in relation to food would be cognizable and even Section 63 was cognizable.

However, the Hon’ble Andhra Pradesh High Court in AmarnathVyasVs State of A.P. reported as 2007 CriLJ 2025 took a contrary view on the basis of erroneous reading of the Apex Court Judgment in Rajeev Chaudhary case, which was correctly interpreted by Hon’ble Justice RanjanGogoi in Hridyanada Sharma case (supra). The Hon’ble Andhra Pradesh High Court held as under:

“12. It is trite that the penal provisions shall have to be construed strictly. True there may be certain other class of offences which may fall in between classification II and classification III of Second Part of Schedule-I. Merely because they are not coming squarely within the domain of classification-Ill, they, cannot automatically be treated as included in the classification-II. By default, they cannot be considered as coming within the purview of the classification-II. Having regard to the fact that the judgments of Kerala and Gauhati High Courts supra have not considered the judgment of the Apex Court in Rajeev Chaudhary’s case MANU/SC/0330/2001(supra), with due respect, they cannot be considered as having laid down the correct proposition of law. Therefore, the expression ‘imprisonment for a term which may extend upto three years’, in my considered view, would not come squarely within the expression ‘imprisonment for three years and upwards’. Therefore, the offence punishable under Section 63 of the Act cannot be considered as ‘non-bailable’ one.”

Further, even the Hon’ble Delhi High Court in a matter titled State Govt. of NCT of Delhi VsNaresh Kumar Gargreported as 2013(56)PTC282(Del) while dealing with a question whether the offence under Section 63 Copyright Act, 1957 held the offence under Copyright Act, 1957 to be bailable and also observed that the offence is non-cognizable. While reaching the aforementioned conclusion, the Hon’ble Delhi High Court relied on the Order passed by the Hon’ble Supreme Court in AvinashBhosale v. Union of India, (2007) 14 SCC 325 which was interpreted as a Judgment by the Hon’ble High Court interpreting that that an offence punishable under Section 135 (1)(ii) of the Customs Act, 1962 (Act of 1962) would be bailable.

The Hon’ble Delhi High Court has held as under:

“6. Admittedly, the offence under Section 135(1)(ii) of the Act of 1962 is punishable with imprisonment for a term which may extent to three years or fine or with both whereas the offence punishable under Section 63 of the Act is punishable with imprisonment which may extend to three years and with fine which may extend to ` 2 lacs. Thus, for an offence under Section 135 of the Act of 1962, an imprisonment for a term of three years in addition to the fine can be imposed by the Court of the Magistrate trying the offence as is the case for an offence under Section 63 of the Act. Thus, interpretation sought to be placed by the learned standing counsel that there is distinction between the two offences (one under Copyright Act and other under the Customs Act) is really missing.

Learned standing Counsel for the Petitioner relies on a judgment of the Gauhati High Court in Jitendra Prasad Singh v. State of Assam 2003 (26) PTC 486 (Gau.) where the offence under Section 63 of the Act was held to be cognizable and non-bailable; and a judgment of the Kerala High Court in C.K. Boban v. Union of India, 2005 Crl.L.J. 2801 where the offence under Section 135(1)(ii) of the Customs Act, 1962 (the Act of 1962) was held to be non-bailable. The authorities relied upon by the learned Standing Counsel for the Petitioner are of no avail and are impliedly overruled by AvinashBhosale v. Union of India, (2007) 14 SCC 325.”

The order passed in Avinash Bhosale v. Union of India, (2007) 14 SCC 325. reads as under:

“1. Leave granted.

On the material placed on record, and the amended Section 135(1)(ii) of the Customs Act, 1962 it appears to us that apparently the offence which is alleged to have been committed is a bailable offence and thus the Magistrate has rightly granted bail to the Appellant. In view of this, the order of the High Court is set aside.
We make it clear that if the Department wants to proceed with the Appellant in regard to any other violation or infraction of the Customs Act or any other Act which are distinct from the offence for which the Appellant was arrested, the Department can proceed with such matters in accordance with law.”

The aforesaid Order passed by the Hon’ble Supreme Court seems to be erroneously applied by the Hon’ble Court of Delhi to offences under Section 63, Copyright Act, 1957 to hold it to be a bailable and Non-Cognizable Offence.

By analogy, the offence under Section 103/104 of the Trade Marks Act, 1999 is also declared to be bailable by such judgment.

Let us hope the dilemma and/or confusion created by the Judgment in Naresh Kumar Garg matter is authoritatively clarified by the Hon’ble Supreme Court.

_____________________________

________________________________________________________________

About the Author:

The author Mr. Neeraj Grover is an advocate practicing in various branches of law in Delhi High Court Since last 20 years having domain expertise in matters relating to Intellectual Property Rights and Criminal law.

Read more about the author at www.neerajgrover.in