Andhra HC (Pre-Telangana)
Amarnath Vyas vs State Of A.P. on 19 December, 2006
Equivalent citations: 2007CRILJ2025
ORDER T. Ch. Surya Rao, J.
1. The instant case is coming up for consideration under the caption 'for being mentioned'. When the petitioner initially applied for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) (for short 'the C.P.C.) having regard to the accusation that he perpetrated the offence punishable under Section 63 of the Copyright Act, 1957 (Act No. 14 of 1957) (for short 'the Act'), this Court dismissed the anticipatory bail on the ground that the offence alleged is bailable and therefore no application for anticipatory bail could be maintained.
2. Having regard to the magnitude of the offence alleged to have been perpetrated by the petitioner apprehending that it would cause considerable damage to the prosecution, the learned Public Prosecutor sought the order to be reconsidered on the premise that the offence alleged is a non-bailable one, but not a bailable one.
3. Heard extensively the arguments of the learned Public Prosecutor. Section 63 of the Act is the provision germane in the context and reads as under:
63. Offence of infringement of copyright or other rights conferred by this Act.-- Any person knowingly infringes or abets the infringement of--
(a) the copyright in a work, or
(b) any other right conferred by this Act, except the right conferred by Section 53-A. 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, Explanation :-- Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section.
4. A bare perusal of the provision shows that if any person infringes or abets the infringement of a copyright 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. If the infringement has not been made for any 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 sentence of fine of less than fifty thousand rupees. The punishment thus prescribed under the said provision is a minimum sentence of six months and the maximum sentence, which may extend up to three years. The Act does not contain any provision, which makes the offence punishable under Section 63 of the Act as 'non-bailable' one.
5. The Act seeks to define the 'copyright' and prescribe punishment for imprisonment thereof. The offence is obviously, as can be seen from Section 70 of the Act, cognizable and triable by a Court, which is not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of First Class. Therefore, there has been no provision in the Act which makes offence clearly a 'non-bailable' one. Undoubtedly, the offence punishable under Section 63 of the Act is triable by a criminal Court of Judicial Magistrate of First Class or Metropolitan Magistrate adopting the procedure envisaged under the provisions of the Cr.P.C. The Cr.P.C. applies proprio vigore for the trial of an offence under the Act. In the absence of any specific provision, under the Act, making the offence 'non-bailable' one has to fall back upon the Schedule-I appended to the Cr.P.C. Part-II classifies the offences against other laws, which are laws other than the various categories of crimes enumerated in the Indian Penal Code, 1860 (for short 'the IPC'). This Part-II classifies the offences under various special enactments into three distinct categories. The first category of offences which prescribe the punishment with death, imprisonment for life, or imprisonment for more than seven years, are 'cognizable', 'non-bailable' and 'triable by a Court of Session'. The Second category of classification shows that if the offence is punishable with imprisonment for three years and upwards, but not more than seven years, they are 'cognizable', 'non-bailable' and 'triable by a Magistrate of the First Class'. The Third category of the classification shows that if the offence is punishable with imprisonment for less than three years or with fine only, they are 'non-cognizable', 'bailable' and 'triable by any Magistrate'.
6. It is now the contention of the learned Public Prosecutor of the State that because the punishment prescribed under Section 63 of the Act is a minimum sentence of six months and the maximum sentence, which may extend upto three years, it would squarely fall within the domain of Second category of the Classification.
7. For brevity and better understanding of the matter, it is expedient to extract the Second category of the classification as given In Part-II of Schedule-I hereunder thus:
II. CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS:
OFFENCE Cognizable Bailable or non- By what Court
or non-cogn- bailable triable
izable
- - -
If punishable with Cognizable Non-bailable Magistrate of
Imprisonment for the first class
3 years and up-
wards but not more
than 7 years. - - -
8. Unmistakably, first and third categories as given in Part-II of the Schedule have no application to the facts in the instant case. Whether the second category of the classification will attract or not is the only point germane for consideration in the instant case. A close scrutiny of the excerpt extracted hereinabove would clearly show that the punishment prescribed under the provisions of the Act is for a term which may extend upto three years. If the punishment prescribed under any special Act is for a term of three years and upwards, it would become 'non-bailable'. The language used in both the provisions, if read keeping them in juxtaposition, would help us in comparing them so as to have a clear idea.
Shall be punishable with If punishable with imprisonment imprisonment for a term for three years and up- wards which shall not be less but not more than seven years than six months but which may extend to three years.
The expression "punishment for a term which may extend to three years" is certainly not similar to the expression "punishment for three years and upwards".
9. In this connection, learned Public Prosecutor seeks to place reliance upon a judgment of a learned single Judge of High Court of Gauhati in Jitendra Prasad Singh v. State of Assam 2003 (26) PTC 486 (Gau). Having regard to the provisions of Section 63 of the Copyright Act, 1957, a learned single Judge of that High Court was of the clear view that the offence punishable under Section 63 of the Act is a 'non-bailable' and therefore the provisions of Section 438 of the Code of Criminal Procedure would attract. Learned Judge was of the view that the punishment prescribed for a term which may extend to three years would include in itself, inter alia the term for less than three years. Obviously, the learned Judge proceeded on the assumption that because third category of classification has not clearly been attracted, second category would automatically attract.
10. The other decision, which is sought to be relied upon by the learned Public Prosecutor, is rendered by learned single Judge of Kerala High Court in C.K. Boban v. Union of India 2005 Cri LJ 2801. That judgment came to be rendered under the provisions of Customs Act, 1962. The punishment prescribed under Section 135(1)(ii) of the Customs Act is imprisonment for a term, which may extend to three years or with fine or with both. Repelling the contention that the expression 'for a term which may extend to three years' would mean that the sentence of imprisonment that could be awarded for a period of less than three years, learned single Judge was of the view that the expression 'three years and upwards' would definitely include an offence punishable for a 'term upto three years' and the offence enjoined under Section 135(1)(ii) of the Customs Act would come within the second category of classification of Part-II of the Schedule.
11. Both these judgments discussed hereinabove have not considered the judgment of the Apex Court in Rajeev Chaudhary v. State (N.C.T.) of Delhi . 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, 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 ball. 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. In paragraph No. 6, the Apex Court held thus:
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 squarely within the domain of classification-Ill, 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 Gauhathi High Courts supra have not considered the judgment of the Apex Court in Rajeev Chaudhary's case 2001 Cri LJ 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 Section 63 of the Act cannot be considered as 'non-bailable' one. For the foregoing reasons, I am afraid, I cannot accept the contentions of the learned Public Prosecutor and there is nothing to recall the order passed by this Court earlier. Accordingly Crl.M.P. No. 3567 of 2006 is dismissed.