Rajasthan High Court - Jaipur
Deshraj vs State Of Rajasthan And Anr on 28 April, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Misccellaneous (Petition) No. 5224 / 2016
Deshraj S/o Shri Ram Kishore B/c Swami, R/o Ward No. 3,
Tapukra, Police Station Tapukra, Tehsil Tijara, Distt. Alwar (raj.)
----Petitioner
Versus
1. State of Rajasthan Through PP
2. Jai Prakash S/o Shri Bhagwana Ram, At Present Sub Inspector,
Police Station Tapukra, Distt. Alwar (raj.)
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. Mohd. Iqbal Khan For Respondent(s) : Mr. Rishiraj Singh, PP _____________________________________________________ HON'BLE MR. JUSTICE DEEPAK MAHESHWARI Order 28/04/2017
1. This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner with a prayer to quash the FIR No.414/2015 registered at Police Station Tapukra, District Alwar as well as the subsequent proceedings pending before the Judicial Magistrate, Tijara, District Alwar in criminal case No.23.11.2016 (State Vs. Deshraj) whereby cognizance has been taken against the petitioner for the offences punishable under Sections 63, 63-B and 65 of the Copyright Act, 1957 (for the sake of brevity, "the Act of 1957").
2. The impugned FIR has been registered against the petitioner at the instance of respondent No.2 wherein allegations have been (2 of 7) [CRLMP-5224/2016] levelled against the petitioner for commission of offences punishable under Sections 63, 63B and 65 of the Act of 1957. After investigation, the police filed challan against the petitioner before the competent trial Court whereupon cognizance has been taken against the petitioner for the above offences.
3. Learned counsel for the petitioner submits that the offences under Sections 63, 63B and 65 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 upto 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 FIR has been registered by the police without there being any order of Magistrate and, therefore, the impugned FIR is liable to be quashed only on this ground. Learned counsel for the petitioner has placed reliance on decision of Hon'ble Supreme Court in Rajeev Chaudhary Vs. State (N.C.T.) of Delhi, reported in AIR 2001 SC 2369 and decision of Andhra Pradesh High Court rendered in Amarnath Vyas Vs. State of A.P., 2007 Cri.L.J. 2025.
4. Per contra, learned Public Prosecutor has argued that offences under Sections 63, 63B and 65 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, (3 of 7) [CRLMP-5224/2016] therefore, the impugned FIR is not liable to be quashed on the ground that the same is in respect of non-cognizable offences and cannot be registered or investigated by the police without there being an order of a Magistrate.
5. Heard learned counsel for the parties and perused the impugned FIR.
6. Sections 63, 63B and 65 of the Act of 1957 read as under :
"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 terms of less than six months or a fine of less than fifty thousand rupees.
63B. Knowing use of infringing copy of computer programme to be an offence.- Any person who knowingly makes use on a computer of an infringing copy of a computer programe shall be punishable with imprisonment for a term which shall not be less than seven days 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 computer programme has not been used for gain or in the course of trade or business, the court may, for adequate and special reasons to be mentioned in the judgment, not impose any sentence of imprisonment and may impose a fine which may extend to 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."
(4 of 7) [CRLMP-5224/2016]
7. As per Section 63, the offence under the said Act is punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine. The offence under Section 63B of the Act of 1957 is punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine. The offence falling under Section 65 of the Act of 1957 is punishable with imprisonment which may extend to two years.
8. Hon'ble Supreme Court in Rajeev Choudhary'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."
9. 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 Choudhary's case (supra), has held as under :
"11. Both these judgments discussed hereinabove have not considered the judgment of the Apex Court in Rajeev Choudhary v. State (N.C.T.) of Delhi 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 Section 386 of IPC. The punishment prescribed therefor is imprisonment of either description for a term, (5 of 7) [CRLMP-5224/2016] 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 therein 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 Section 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."
10. Admittedly, offences punishable under Sections 63, 63B and 65 of the Act of 1957 carry maximum punishment which can be extended up to three years.
11. Part -II of Schedule-I of CrPC reads as under:
"II - CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS of Schedule-II of CrPC reads as under :
Offence Cognizable or non- Bailable or non- By what court cognizable bailable triable 1 2 3 4 If punishable with death, Cognizable Non-bailable Court of Session imprisonment for life, or imprisonment for more than 7 years If punishable with imprisonment for 3 Cognizable Non-bailable Magistrate of years, and upwards but not more than (6 of 7) [CRLMP-5224/2016] 7 years the first class If punishable with imprisonment for Non-cognizable Bailable Any Magistrate less than 3 years or with fine only.
12. 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 CrPC 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.
13. 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 sections 63, 63B and 65 the Act of 1957 cannot be considered as cognizable offence.
14. Sub-section (2) of section 155 of CrPC 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."
(7 of 7) [CRLMP-5224/2016]
15. As per the above provision, no police officer shall investigate a non-cognizable case without an order of a Magistrate.
16. In view of the above discussions, the action of registration of the impugned FIR 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 CrPC.
17. Resultantly, this criminal misc. petition is allowed. The impugned FIR No.414/2015 of Police Station, Tapukra, District Alwar filed against the petitioner as well as the subsequent proceedings pending before the judicial Magistrate, Tijara, District Alwar in criminal case No.23.11.2016 (State Vs. Deshraj) whereby cognizance has been taken against the petitioner is quashed.
18. Stay petition stands disposed of.
(DEEPAK MAHESHWARI), J.
arun/PS