Offences under Copyright Act and Trade Marks Act: Bailable or Not?

Recently in the matter of Piyush Ranipa v. the State of Maharashtra, the Bombay High Court among other issues decided upon the question of whether offenses under the Trademarks Act, 1999 and the Copyright Act, 1957 are bailable offenses or not.

In the present matter a company named ‘Jain Irrigation System’ i.e., the Complainant Company received certain complaints regarding low-quality goods being sold in its name and upon information received by the zonal manager of the Company, about a truck carrying such substandard goods, scrutiny of it revealed goods bearing mark ‘Jain HDPE’ bearing stamp of Certificate of Manufacturing License, which was forged. The Complainant lodged an FIR against the Accused/Applicant under multiple Sections of the Indian Penal Code, 1860 as well as Section 103 of the Trade Marks Act and Section 63 of the Copyright Act, after which the applicant had filed for anticipatory bail.

The Code of Criminal Procedure, 1973, under Section 2(a) defines ‘bailable offense’ meaning ‘an offense which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offense” means any other offense.” In bailable offenses, bail can be claimed as a matter of right whereas in the case of non-bailable offenses that are considered as more of a heinous nature requiring stricter punishment, grant of bail is upon the discretion of the court.

Under Part II of Schedule I of the Code of Criminal Procedure, 1973 offenses have been categorized into bailable and non-bailable under laws other than the Indian Penal Code, 1860, which includes the Trade Marks Act, 1999 and the Copyright Act, 1957. Under the aforesaid Part II of Schedule I, offenses that have been made punishable with imprisonment for three years and upwards but not more than seven years have been declared as non-bailable and cognizable, and offenses made punishable with imprisonment for less than three years or only with fine are to be categorized as bailable and non-cognizable.

Both the Sections, i.e., Section 103 of the Trade Marks Act, 1999 and Section 63 of the Copyright Act provide that punishment for Infringement of Trademark and Copyright respectively, would include imprisonment for a term which shall not be less than six months but which may extend to three years” for certain offenses committed thereunder. Thus the main decision has to be decided on basis of the terminology used by these provisions, i.e., whether “may extend to three years” as used in the Copyright Act and the Trade Marks Act has the same effect as “three years and upwards” used in the Code of Criminal Procedure.

The Bombay High Court while holding that the offense under Section 63 of the Copyright Act, 1957 and Section 103 of the Trade Marks Act, 1999 was non-bailable relied on several precedents to arrive at this decision. These included the case of Ramrao Marotrao Budruk v. The State of Maharashtra and Another, where the Court was faced with the question of whether the offenses as provided under Section 2 of the Prevention of Insults to National Honour Act, 1971 was bailable or nonbailable. The terms used in the said Section were “with imprisonment for a term which may extend to three years”. It was observed that the Court was empowered to sentence an accused up to a maximum period/sentence of three years thus, making it a non-bailable offense. The contention that there might be circumstances where the imprisonment is for a term less than three years, therefore, did not impact the categorization of the offenses as non-bailable.

A similar view was taken in the matter of State of Maharashtra v. Shri Suresh Ganpatrao Kenjale, where the offenses under the Prevention of Corruption Act, 1988 were in question. The Bombay High Court held that while construing whether an offense is bailable or not, what must be considered is the maximum sentence that can be awarded under the particular law rather than the minimum sentence.

In the present matter, the Court also relied upon other precedents including Mahesh Shivram Puthran v. The Commissioner of Police, Thane, Dist. Thane and Others as well as Nathu Ram S/o Purna Ram v. The State of Rajasthan, wherein both the decisions it was held that offenses attracting a punishment that can extend up to three years would fall under the category of non-bailable offenses. The Court opined that where there exists a possibility for punishment to extend up to three years, the offense would invariably be cognizable and non-bailable.

Thus, since it was possible that offenses under Section 103 of the Trade Marks Act, 1999 and Section 63 of the Copyrights Act, 1957, could attract a sentence for imprisonment that can extend up to three years, such an offense would qualify as non-bailable and cognizable.

However, because the Court in Piyush Ranipa case has placed reliance upon those cases wherein the decisions have been made regarding the provisions pertaining to penalty under statutes likes National Honour Act or Prevention of Corruption Act, and not in the context of Copyright Act, 1957 and Trade Marks Act, 1999, and without any reference to other differing decisions passed by High Courts in cases such as Amarnath Vyas v. the State of A.P., State Govt. of NCT of Delhi v. Naresh Kumar GargorAvinash Bhosale v. Union of India, wherein the Courts have declared offenses under Section 63 of the Copyright Act, 1957 as bailable offenses, this issue is yet to be finally decided and settled by the Apex court.

Author: Hiba Nasir, a  5th Year student of the Faculty of Law, Jamia Millia Islamia,  an intern at Khurana And Khurana (IP Attorney & Advocates). In case of any queries please contact/write back to us at aishani@khuranaandkhurana.com.

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