Rajasthan High Court - Jodhpur
Mahender Bhati vs State & Anr on 1 September, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2499 / 2017
Mahender Bhati Son of Shri Kishorelal, By Caste Ghanchi, Resident
of House No. 17, Ghanchi Colony Bhagat Ki Kothi Police Station
Shastri Nagar Jodhpur.
----Petitioner
Versus
1. The State of Rajasthan
2. Sh. Devaram S.I., Police Station Basni District Jodhpur-
(Complainant) Through PP.
----Respondents
_____________________________________________________
For Petitioner(s) :Mr. Vikram Choudhary
For Respondent(s) :Mr. MS Panwar, PP
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 01/09/2017
1. Petitioner has preferred this misc. petition under Section 482 of Cr.P.C. for quashing of FIR No.327/11 P.S. Basni Jodhpur and complete criminal proceedings initiated in pursuance to FIR No.327/11 including charge-sheet filed in pursuance to FIR No.327/11 and complete criminal proceedings in trial in case No.552/11 before metropolitan magistrate No.4 jodhpur Metro.
2. Brief facts as noticed by this Court are that Shri Devaram SI (Complainant) presented a report at PS basni on dated 15.09.2011 alleging that violation of copyright act for offence under Sections 51, 52A, 63, 68A was found in raid at kishore video and accordingly arrested the accused Mahendra Bhati for violation of copy right act as was found downloading (2 of 10) [CRLMP-2499/2017] song. On the basis of the registration of FIR, investigation was commenced and ultimately charge-sheet No.20110306 dated 30.09.2011 was filed before the trial court and cognizance was taken by the trial court and charges were framed and trial commenced.
3. Learned counsel for the petitioner submits that the matter is squarely covered by the judgment rendered by a coordinate Bench of this Court in Pintu Dey Vs. State of Rajasthan & Anr. (S.B. Criminal Misc. Petition No.2786/2012 decided on 09.04.2015) reported in 2015(2) R.Cr.D. 68 (Raj.).
4.. The coordinate Bench of this Court on 09.04.2015 has passed the following order in Pintu Dey Vs. State (Supra):
"1. This criminal misc. petition under Sec. 482 Cr.P.C. has been filed by the petitioner with a prayer for quashing the F.I.R. No. 468/2012 dt. 21.09.2012 lodged at Police Station, Hiranmagri, District Udaipur for the offences punishable under Sees. 37, 51, 63, 68A of Copyright Act, 1957 (for short 'the Act of 1957' hereinafter). The impugned F.I.R. has been registered at the instance of respondent No. 2, wherein allegations have been levelled against the Management of Hotel Cambay, Udaipur for commission of offences punishable under Secs. 37, 51, 63, 68A of the Act of 1957. The petitioner being the Front Office Manager of the Cambay Hotel, Udaipur is arraigned as accused in the impugned F.I.R.
2. Learned counsel for the petitioner while assailing the impugned F.I.R. has argued that although in the impugned F.I.R. various Sections are quoted but (3 of 10) [CRLMP-2499/2017] Sections 37 and 51 of the Act of 1957 only deal with various definitions and actually Sections 63, 65 and 68A are the penal provisions. It is contended that the offences under Sees. 63, 65 and 68A of the Act of 1957 are non-cognizable offences by virtue of Part-II of Schedule-I of Cr.P.C. because they carry imprisonment which can be extended up to three years only and, therefore, as per Section 155 of the Code of Criminal Procedure, no police officer can investigate a non-cognizable case without an order of a Magistrate having power to try such case or commit the case for trial. It is contended that the impugned F.I.R. has been registered by the police without there being any order of the Magistrate and, therefore, the impugned F.I.R. is liable to be quashed only on this ground. Learned counsel for the petitioner has placed reliance on decision of Hon'ble Supreme Court rendered in Rajeev Chaudhary vs. State (N.C.T.) of Delhi, MANU/SC/0330/2001 : AIR 2001 SC 2369 and decision of Andhra Pradesh High Court rendered in Amarnath Vyas vs. State of A.P., MANU/AP/1214/2006 : 2007 Cri.L.J. 2025.
3. Per contra, learned Public Prosecutor has argued that offences under Secs. 63 and 68A of the Act of 1957 are punishable with imprisonment, which may extend to three years and the same falls within the category of cognizable offence and, therefore, the impugned F.I.R. is not liable to be quashed on the ground that the same is in respect of non-cognizable offence and cannot be registered or investigated by the police without there being an order of a Magistrate.
4. Heard learned counsel for the parties and perused the impugned F.I.R.
5. Sections 63, 65 and 68A of the Act of 1957 read as under:
(4 of 10) [CRLMP-2499/2017] "63. 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 concerned by this Act, 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.
65. Possession of plates for purpose of making infringing copies.-Any person who knowingly makes, or has in his possession, any plate for the purpose of making infringing copies of any work in which copyright subsists shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.
68A. Penalty for contravention of Section 52A.-Any person who publishes a sound recording or a video film in contravention of the provisions of Section 52A shall be punishable with imprisonment which may extend to three years and shall also be liable to fine."
6. As per Section 63, the offence under the said Act is punishable with imprisonment for a terms which shall not be less than six months but which may extend to (5 of 10) [CRLMP-2499/2017] three years and with fine. The offence falling under Sec. 65 of the Act of 1957 is punishable with imprisonment which may extend to two years and an offence falling under Sec. 68A of the Act of 1957 shall punishable with imprisonment, which may extend to three years.
7. Hon'ble Supreme Court in Rajeev Chaudhary's case (supra) has held as under:
"In this context, the expression "not less than" would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 years or more. Further, in context also if we consider clause (i) of proviso (a) to Section 167(2), it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be imprisonment for less than 10 years. Under Section 386 of the IPC, imprisonment can very from minimum to maximum of 10 years and it cannot be aid that imprisonment prescribed is not less than 10 years."
8. In Amarnath Vyas vs. State of A.P. (supra), the Andhra Pradesh High Court after relying on the decision of Hon'ble Supreme Court in Rajeev Chaudhary's case (supra), has held as under:
"11. Both these judgments discussed hereinabove have not considered the judgment of the Apex Court (6 of 10) [CRLMP-2499/2017] in Rajeev Chaudhary v. State (N.C.T.) of Delhi MANU/SC/0330/2001 : AIR 2001 SC 2369: (2001 Cri LJ 2941). The provisions of Section 167(2) Clause (1) proviso (a) of the Cr.P.C. came up for consideration before the Apex Court in the said judgment. The offence involved, as can be seen from the matrix of that case, is extortion punishable under Sec. 386 of IPC. The punishment prescribed therefore is imprisonment of either description for a term, which may extend to 10 years and shall also liable to fine. The expression 'imprisonment which may extend to 10 years' was discussed by the Apex Court in juxtaposition to the other expression 'imprisonment for 10 years or more'. The proviso under Clause (1) of Section 167, Sub-clause (2) of the Cr.P.C. reads that if the period of ninety days exceeds in the case of investigation relating to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, the remand prisoner, as a matter of right, is entitled to bail. Therefore, the expression used there in inter alia that imprisonment for a term not less than ten years, as per the judgment of the Supreme Court, could not be equated with imprisonment for ten years or more; and that the expression would cover only those offences punishable with imprisonment for a clear period of ten years or more. Inasmuch as under Sec. 386 IPC the punishment provided is imprisonment for either description for a term which may extend to ten years, it was considered by the Apex Court and held that such an imprisonment cannot be equated with the sentence of imprisonment for ten years or more. In the view of the Apex Court, imprisonment for a term, which may extend to ten years cannot be construed as similar to the sentence of ten years or more. In paragraph No. 6, the Apex Court held thus:
(7 of 10) [CRLMP-2499/2017] "In this context, the expression 'not less than' would mean imprisonment should be ten (10) years or more and would cover only those offences for which punishment could be imprisonment for a clear period of ten (10) years or more. Under Section 386 punishment provided is imprisonment of either description for a term, which may extend to ten (10) years and also fine. That means, imprisonment can be for a clear period of ten (10) years or less. Hence, it could not be said that minimum sentence would be ten (10) years or more. Further, in context also if we consider Clause (i) of proviso (a) to Section 167(2), it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be imprisonment for less than ten (10) years. Under Section 386 of the I.P.C., imprisonment can vary from minimum to maximum of ten (10) years and it cannot be said that imprisonment prescribed is not less than ten (10) years." In view of the said authoritative pronouncement of the Apex Court, the expression used in Second category of II-Part of Schedule-I of the Cr.P.C. viz., that the term of imprisonment for three years or upwards, but not more than seven years, cannot be equated with the expression used in Section 63 of the Act viz., the imprisonment which may extend to three years.
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 (8 of 10) [CRLMP-2499/2017] squarely within the domain of classification-III, 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 :
2001 CriLJ 2941 (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 Sec. 63 of the Act cannot be considered as 'non-bailable' one."
9. Admittedly, offences punishable under Secs. 63 and 68A of the Act of 1957 carry maximum punishment which can be extended up to three years.
10. Part-II of Schedule-I of Cr.P.C. reads as under:
"II - CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS Offence Cognizable or non- Bailable or non- By hat Court triable cognizable bailable 1 2 3 4 If punishable with Cognizable Non-bailable Court of Session.
death,
imprisonment for
life, or
imprisonment for
more than 7 years
If punishable with Cognizable Non-bailable Magistrate of first
imprisonment for 3 class
the years, and
(9 of 10)
[CRLMP-2499/2017]
upwards but not
more than 7 years
If punishable with Non-cognizable Bailable Any Magistrate
imprisonment for
less than 3 years or
with fine only.
11. As held by the Andhra Pradesh High Court in Amarnath Vyas's case (supra), there may be certain other class of offences which may fall in between Classification II and Classification III of second part of Schedule-I of Cr.P.C. but merely because they are not falling squarely within the domain of Classification III, they cannot automatically be treated as included in Classification-II. By default, they cannot be considered as coming within the purview of Classification II, I am totally in agreement with the above proposition laid down by Andhra Pradesh High Court.
12. Hence, as per the law laid down by Hon'ble Supreme Court in Rajeev Chaudhary's case (supra) and by Andhra Pradesh High Court in Amarnath Vyas's case (supra), the expression "imprisonment for a term which may extend up to 3 years" would not come within the expression "imprisonment for 3 years and upwards". Therefore, the offence punishable under Secs. 63 and 68A of the Act of 1957 cannot be considered as cognizable offence.
13. Sub-Section (2) of Section 155 of Cr.P.C. reads as under:
"(2) No police officer shall investigate a non-
cognizable case without the order of a Magistrate having power to try such case or commit the case for trial."
14. As per the above provision, no police officer shall (10 of 10) [CRLMP-2499/2017] investigate a non-cognizable case without an order of a Magistrate.
15. In view of the above discussions, the action of registration of the impugned F.I.R. against the petitioner without there being any order of the Magistrate having power to try such case or commit the case for trial is violative of sub-section (2) of Section 155 of the Cr.P.C. Resultantly, this criminal misc. petition is allowed. The impugned F.I.R. No. 468/2012 dt. 21.09.2012 of Police Station, Hiranmagri, District Udaipur filed against the petitioner is quashed.
Stay petition stands disposed of.
5. Consequently, this misc. petition is allowed and the impugned FIR No.327/11 P.S. Basni and criminal proceedings including charge-sheet and criminal proceedings in trial in criminal original case No.552/11 before Metropolitan Magistrate No.4 Jodhpur is quashed and set aside.
(DR. PUSHPENDRA SINGH BHATI)J. sudher