Gauhati High Court
Hridyananda Sharma vs State Of Assam on 14 February, 2003
Equivalent citations: 2003(27)PTC219(GAU)
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. This is an application made under Section 438, Cr. PC seeking pre-arrest bail by the petitioner, namely, Sri Hridyananda Sharma in connection with CID P.S. Case No. 47/2002 under Section 68A of Copyright Act.
2. Perused the above application and the materials on record. Also perused the relevant case diary.
3. Heard Mr. B.K. Mahajan, learned counsel for the petitioner, and Mr. M. Munir, learned Public Prosecutor, Assam for the respondent.
4. It is submitted, on behalf of the petitioner, that since the offence alleged to have been committed by the petitioner is punishable under Section 68A of the Copyright Act (hereinafter referred to as "the said Act") and the punishment prescribed therein is upto 3 (three) years, the same may be treated as a bailable offence and this Court may make necessary observations in this regard so that the petitioner may, if need be, apply for regular bail in the learned Court below. Alternatively, it is submitted that even if it is treated that the offence punishable under Section 63 of the said Act is non-bailable, the petitioner is wholly innocent and he may be granted the benefit of pre-arrest bail.
5. The question, therefore, which needs to be, first, considered is this : whether the offence punishable under Section 68 of the said Act is a bailable offence ?
6. While considering the above question, it is of utmost importance to note that the offence alleged to have been committed by the petitioner is covered by Section 68A of the said Act and it is punishable with imprisonment for a term, which may extend to three years. By virtue of Part-II, contained in. Schedule I to the Code of Criminal Procedure, an offence under the other special law, if punishable with imprisonment for less than three years or with fine only, is non-cognizable, but bailable. However, if the offence is punishable with imprisonment for three years and upward but not more than seven years, the same shall be non-bailable.
7. What is, now, essential to note is that the expression "punishable with imprisonment for a term, which may extend to three years", is distinctly different from the expression "if punishable with imprisonment for less than three years" inasmuch as the expression, namely, "punishable with imprisonment for a term, which may extend to three years will mean that the imprisonment can be for a term as long as three years, but the expression "punishable with imprisonment for less than three years" will mean that the offence is punishable with imprisonment for a period, which has to be for a period of less than three years.
8. In view of the above, since the offence under Section 68A of the Copyright Act is upto 3 years, it clearly follows that if found to have been committed an offence under Section 68A of the Copyright Act, the accused can be punished with imprisonment for a period of 3 years. If the offence is punishable with imprisonment for 3 years and upward but not more than 7 years, such as offence, according to Part-II of Schedule-I to the Cr. P.C., shall be non-bailable. I have expressed this view in Jitendra Prasad Singh v. State of Assam, 2002 (3) GLT 241 : 2003 (26) PTC 486.
9. My attention has been drawn to a decision of this Court in Tapan Biswas @ Tapas v. State of Assam, 2001 (3) GLT 13, wherein this Court has held in respect of offence under Section 7(1)(a) of the Cinematograph Act, 1952, which is punishable with imprisonment for a term, which may extend to 3 years or with fine, as bailable by virtue of the provisions of the Cr. P.C. I find it difficult to agree that an offence under Section 7(1)(a) of the Cinematograph Act, 1952, which is punishable with imprisonment for a term which may extend to 3 years, will be bailable, for, Part-II of Schedule-I to the Cr. P.C. clearly lays down that if an offence, which is punishable with imprisonment for 3 years, it shall be non-bailable.
10. For the purpose of taking the view that Section 7(1)(a) of the Cinematograph Act is bailable, the Court in Tapan Biswas (supra), has derived strength from the decision of the Apex Court rendered in Rajeev Choudhury v. State (NCT), Delhi, 2001 (2) Cr. SC 303 = 2001(5) SCC 34.
11. It is of immense importance to note that in its decision in Rajeev Choudhury (supra), the Apex Court has interpreted the expression offence punishable with imprisonment for a term not less than 10 years' occurring in the proviso (a) to Section 167(2) of the Code in the context of the expression "imprisonment, which may extend to 10 years" occurring in Section 386, IPC.
12. In view of the fact that it is only those offences for which punishment cannot be for less than 10 years that the Magistrate can detain a person for 90 days, the Apex Court has laid down in Rajeev Choudhury (supra), that in case of an offence for which punishment can be for less than 10 years, the period of detention cannot be for more than 60 days. In view of the fact that for the offence committed under Section 386 IPC, the imprisonment can be for less than 10 years also, the Apex Court has held that for an offence under Section 386, IPC, the accused cannot be detained for more than 60 days.
13. It logically follows that had Section 386 IPC provided that for an offence committed under Section 386 IPC, the punishment cannot be for less than 10 years, then, the period of detention would have been 90 days. I am guided to adopt this view from the law laid down in Rajeev Choudhury (supra), wherein the Apex Court has observed as follows :
"Hence in cases where offence is punishable with imprisonment for 10 years or more, the accused could be detained up to a period of 90 days. 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 IPC, imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years".
14. Thus, the decision in Rajeev Choudhury (supra) cannot, therefore, be stretched to mean that an offence, which is punishable by imprisonment for 3 years, is bailable offence in the face of clear words in Part-II of Schedule-I to the Code that if the offence is punishable with imprisonment for 3 years, the same shall be non-bailable.
15. In other words, for an offence under Section 68A of the Copyright Act, the punishment may be 3 years. Since the punishment can be for 3 years, it has to be held as non-bailable in the light of the contents of Part-II of the Schedule aforementioned.
16. Because of what have been discussed above, I am of the view that the matter needs to be examined by a Large Bench for the purpose of arresting flow of conflicting orders emanating from the Court on the above subject.
17. Considering, therefore, the matter in its entirety, the Registry is directed to lay the matter before Hon'ble the Chief Justice for appropriate orders.
18. Though the petitioner is on interim pre-arrest bail, the matter needs to be dealt with and decided expeditiously with this object in view, the Registry is directed to lay the matter urgently before Hon'ble the Chief Justice.
19. Let the above directions be brought forthwith to the notice of the Deputy Registrar (I&E).