Infringement Of Copyright Is A Bailable Offence Vis-À-Vis Section 63 Of The Copyright Act, 1957

In “State Govt. of NCT of Delhi vs. Naresh Kumar Garg” [1], the Hon’ble High Court of Delhi threw light upon the question as to whether the offence punishable under Section 63 of the Copyright Act, 1957 is bailable or non-bailable.

State Govt. of NCT of Delhi vs. Naresh Kumar Garg

Parties & Brief Facts:

The Case FIR No. 164/2011 was registered at Police Station Economic Offence Wing under Section 63 of the Copyright Act, 1957 read with Section 103/104 of the Trademarks Act, 1999. The Police raided the premises of one Mohd. Shokeen where huge quantity of the infringing material was seized by the police.

Mohd. Shokeen disclosed that the Respondent had supplied the infringing material. The Respondent was arrested and his application for anticipatory bail was dismissed on the premise that the offence under section 63 of the Act was bailable.

Petition under Section 482 of the Cr.P.C., 1973 was filed seeking an answer to the issue as mentioned below.

Issues:

Whether the offence punishable under Section 63 of the Copyright Act, 1957 is bailable or non-bailable?

Applicable rules:

Section 63, 64 of the Copyright Act, 1957.

Section 135 (1) (ii) of the Customs Act, 1962

Arguments

The Ld. State Counsel argued that wherever the imprisonment and also fine is provided for any offence it would be out of Item III of Part II of the Schedule I of the Code and would be cognizable and non-bailable.

Decision:

The Hon’ble Court referred the case of “Avinash Bhosale vs. Union of India” [2], wherein the Hon’ble Supreme Court held that an offence punishable under Section 135 (1) (ii) of the Customs Act, 1962 would be bailable.

Further, it went on to observe that for an offence under Section 135 of the Act, 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 Copyright Act.

Similarly, in the case of “Amarnath Vyas vs. State of A.P. 2007”[3], the Hon’ble High Court of A.P. took the view that an offence under Section 63 of the Copyright Act is bailable.

The Hon’ble High Court of Delhi further observed that the interpretation of the Hon’ble Supreme Court in the case of Avinash Bhosale of the term, imprisonment which may extend to three years or with fine or with both which is for an offence under Section 135 (1) (ii) of the Act of 1962, will fully apply in a case under Section 63 of the Copyright Act.

The Hon’ble High Court further held that it would be fruitful to refer to the provision of Section 64 of the Act which empowers a police officer not below the rank of Sub-Inspector to seize the infringing copies of any work and observed that if the offence had been cognizable and non-bailable, there was no necessity to specifically authorise the police officer with the power of seizure.

The Petition being devoid of merit was dismissed by the Hon’ble High Court.

Author: Rajat Sabu, Senior Associate at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at rajat@khuranaandkhurana.com.

References:

[1] 2013(56) PTC 282 (Del)

[2] (2007) 14 SCC 325

[3] 2007 Crl. L. J. 2025

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