Sunday, 7 March 2021

Bombay HC: Offences under laws other than IPC punishable with imprisonment of 3 years or more are cognizable, non-bailable

 Recently, a Division Bench of the Rajasthan High Court

has also taken a similar view in the case of Nathu Ram S/o Purna

Ram Versus The State of Rajasthan reported in D. B. Cri. Ref.

No.1/2020. A specific question for reference posed before the

division bench of Rajasthan High Court was as follows:-

“What would be the nature of an offence (whether

cognizable or non-cognizable) for which

imprisonment “may extend to three years” is

provided and no stipulation is made in the statute

regarding it being cognizable or non-cognizable.”

After discussion the division bench answered the

reference in paragraph No.25 which reads thus:-

“25. Accordingly, the reference is answered in

terms that unless otherwise provided under the

relevant statute, the offences under the laws other

than IPC punishable with imprisonment to the

extent of three years, shall fall within the

classification II of offences classified under Part II

of First Schedule and thus, shall be cognizable and

non-bailable.”


12. The question, whether the offence is bailable or not

has to be seen in the light of definition of bailable offence provided

under section 2(a) of the Cr.p.c. which reads thus:

“2. Definitions……

(a) “bailable offence” means an offence which is

shown as bailable in the First Schedue, or which is

made bailable by any other law for the time being

in force; and “non bailable offence” means any

other offence;”

13. Thus, the next relevant sections would be sub section 2

of section 4 and section 5 of the Cr.p.c. as they are referred to by

the Division Bench of this court in the case of Mahesh Shivram

Puthran (supra). Part II of the Schedule-I reads thus:-

II – CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS

Offence Cognizable or noncognizable

Bailable or nonbailable

By what court

triable

If punishable with

death,

imprisonment for

life, or

imprisonment for

more than 7 years.

Cognizable Non-bailable Court of Session.


If punishable with

imprisonment for 3

years and upwards

but not more than 7

years.

Cognizable Non-bailable Magistrate of the

first class.

If punishable with

imprisonment for

less than 3 years or

with fine only.

Non-cognizable Bailable Any Magistrate.

14. Bare reading of this Part II of the Schedule -I of Cr.p.c.

shows that, if the offences in the other laws are punishable with

imprisonment for three years and upwards then the offences are

cognizable and non bailable. Wherever it is possible to impose the

punishment extending to three years, this category would apply,

because in such offences it is possible to impose sentence of exact

three years. In such cases offences would be non-bailable.

15. Therefore, first question raised before me is answered

that the offences under section 63 of the Copyright Act and section

103 of Trade Marks Act are non bailable in nature and, therefore,

since these sections are applied here, the application for

anticipatory bail is maintainable.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

ANTICIPATORY BAIL APPLICATION NO. 336 OF 2021

Piyush Subhashbhai Ranipa  Vs  The State of Maharashtra 


CORAM : SARANG V. KOTWAL, J.

DATE : 26th FEBRUARY, 2021


1. The Applicant is seeking anticipatory bail in connection

with C.R.No. 865 of 2020 registered with Mohol Police Station,

Solapur, District Solapur, under sections 418, 465, 482, 483, 485,

486, 488 r/w. 34 of the Indian Penal Code (for short ‘IPC’) and

under section 63 of the Copyright Act, 1957. Subsequently section

103 of the Trade Marks Act, 1999 is also applied.

2. The First Information Report (for short ‘F.I.R.) is

lodged by one Prakash Gore. He was a Zonal Manager of Jain

Irrigation System. His company received complaints that

substandard goods in the name of their company were sold in the

market. The informant received a secret information that one

Eicher truck bearing No.GJ03/BV-9840 was carrying goods in the

name of the complainant’s company which actually were not

genuine goods. That vehicle had started from Gujarat and was

going towards Karnataka. On 19/12/2020, at about 4:00p.m. the

informant and his associates saw that vehicle. They made inquiries

with the driver Jeevan about the goods. He informed that the

goods were loaded from Tera-flow company Ribda and he was

going to Chadchan. He showed invoices. The invoice mentioned

four different HDPE pipes worth Rs.94,485/-. The informant

physically saw those goods. He saw that some goods were bearing

mark ‘Jain HDPE’ bearing stamp of CML (Certificate of

Manufacturing Licence) 7018761. That stamp was a forged stamp.

The goods were being transported and sold using fake trademark

and, therefore, he lodged this F.I.R. The investigation was carried

out and the goods were seized.


3. A few legal questions arose while deciding this

application. Therefore, I have heard Shri. Mandar Soman, learned

counsel for the applicant, Shri. Ajay Patil, learned APP for the

State. Shri. Aniket Nikam, learned counsel was requested to assist

the court for deciding a larger issue as to whether offences

punishable upto three years were bailable or non bailable.

4. First point for consideration was whether the offence

under section 63 of the Copyright Act and also subsequently

applied section 103 of the Trade Marks Act were bailable or non

bailable. Shri. Soman invited my attention to the order passed by

the learned Magistrate, wherein the co-accused were granted bail

on the ground that, section 418 of I.P.C. was bailable and,

therefore, bail was granted to the co-accused. Perusal of that order

shows that the learned Magistrate has only referred to section 418

of IPC. He has not considered application of section 63 of the

Copyright Act and section 103 of the Trade Marks Act. Shri. Soman

claimed parity with co-accused in this case. The allegations against

the applicant are that, he was manufacturing all these pipes and at

his instance the pipes were being transported and sold. The

investigation papers produced by Shri. Patil before me showed

photographs of those pipes which bore the aforementioned name

and registration number of the trademark of complainant’s

company. Therefore, the first question which needs to be addressed

and decided is to whether the offence punishable under section 63

of the Copyright Act and section 103 of Trade Marks Act are

bailable or non bailable.

Section 63 of the Copyright Act reads thus:-

“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 conferred 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 on 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.]”


Section 103 of the Trade Marks Act reads thus:-

“103 - Penalty for applying false trade marks, trade descriptions, etc. –

Any person who--

(a) falsifies any trade mark; or

(b) falsely applies to goods or services any trade mark; or

(c) makes, disposes of, or has in his possession, any die, block,

machine, plate or other instrument for the purpose of

falsifying or of being used for falsifying, a trade mark; or

(d) applies any false trade description to goods or services; or

(e) applies to any goods to which an indication of the country

or place in which they were made or produced or the name

and address of the manufacturer or person for whom the

goods are manufactured is required to be applied under

section 139, a false indication of such country, place, name or

address; or

(f) tampers with, alters or effaces an indication of origin

which has been applied to any goods to which it is required to

be applied under section 139; or

(g) causes any of the things above-mentioned in this section to

be done, shall, unless he proves that he acted, without intent

to defraud, 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 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.”

It can be seen that, in both these sections sentence of

imprisonment extending upto three years can be imposed. The

question raised by Shri. Soman is, whether the offence in which

sentence of imprisonment upto three years can be imposed; falls

within third category of Part II of Schedule I of Cr.p.c. or it falls

within second category of that Part. Therefore, that question needs

to be answered first. For that purpose I have heard all the learned

counsel.

5. Shri. Soman submitted that the schedule of Cr.p.c. does

refer to other laws and can be used to decide whether the offences

in Statutes other than Indian Penal Code are bailable or non

bailable. He submitted that the schedule of Cr.p.c. can be applied

to other Acts, keeping in mind object and reasons of that

particular Act. He submitted that, looking at the scheme of

Copyright Act and Trade Marks Act, it shows that the offences are

bailable.

6. As against this, Shri. Nikam and Shri. Patil submitted

that, this issue is no more res-integra and different courts

including a Division bench of this court have held that the offences

in which punishment can extend upto 3 years are non bailable

offences.

7. I have considered their submissions in that behalf. Shri.

Patil and Shri. Nikam both have relied on a few judgments.

8. First of these was a judgment of single Judge of this

court passed in the case of Ramrao Marotrao Budruk Vs. The State

of Maharashtra and another reported in 1994 SCC OnLine Bom

407 . In that case the court was deciding whether section 2 of the

Prevention of Insults to National Honour Act, 1971 makes offence

under that Act; bailable or non bailable. In that context,

paragraph Nos.3 and 8 of that Judgment are important. Those two

paragraphs are reproduced as follows:-

“3. Section 2 of the Prevention of Insults to National

Honour Act, 1971 (hereinafter referred to as ‘the

Act’ for the sake of bravity) runs thus:

“whoever in any public place or in any other place

within public view burns, mutilates, …. or otherwise

brings into contempt (whether by words, either

spoken or written, or by acts) the Indian National

Flag or the Constitution of India or any part thereof,

shall be punished with imprisonment for a term

which may extend to three years, or with fine, or

with both.

…….

…….

8. Section 2 of the Act empowers the Court to

sentence an accused upto 3 years and it is a

maximum sentence but permissible. Therefore, it

makes no difference by the fact that the

imprisonment for such an offence can also be less

than 3 years. To put in figures, for an offence under

section 2 of the Act, the imprisonment for 2 years

and 365 days can be inflicted or ever less than that.

As such, it would be an offence punishable with

imprisonment for 3 years which would make it as a

non bailable one. If the punishment is upto 2 years

and 364 days it would be an offence punishable

with imprisonment for less than 3 years so as to

make it a bailable on under category No.3 of the

said classification. If the offence therefore, falls

within the corners of category No.2 of the said

classification, an application under section 438,

Cr.P.C. for a relief anticipatory bail would be

maintainable as the offence would be a non bailable

one. The learned 2nd Additional Sessions Judge,

therefore, committed an error in treating the offence

under section 2 of the Act as a bailable one.”

9. Similar view was expressed by another single Judge of

this court in the case of State of Maharashtra Vs. Shri. Suresh

Ganpatrao Kenjale reported in 1995 CriLJ 2478. The relevant

paragraph No.3 in that judgment is reproduced as follows:-

“3. The Sessions Judge, Bhandara, while rejecting

the application for police custody observed that for

the offence under S. 7 of the P.C. Act the

imprisonment prescribed is not less than six

months but that may extend to five years, and for

the offence under S. 13(1)(d) r/w S. 13(2) of the

P.C. Act the minimum imprisonment is one year

and it may extend to seven years, and thus

concluded that the said offences are punishable

with imprisonment for less than three years and

therefore, they are bailable offences and the police

custody remand cannot be ordered. The reasoning

given by the Sessions Judge on its face appears to

be fallacious. He has not properly construed the

punishment prescribed under S. 7 as well as under

S. 13(1)(d) r/w 13(2) of the Prevention of

Corruption Act and in the light of Schedule-II of

the Code of Criminal Procedure, 1973 making

classification of offences against other laws. For

the offence under S. 7 of the P.C. Act, it is provided

that the said offence shall be punishable with

imprisonment, which shall not be less than six

months, which may extend to five years and shall

also be liable to fine. This means that the

maximum punishment for an offence under S. 7 of

the P.C. Act is five years. Similarly for the offence

under S. 13(1)(d) of the P.C. Act, it is provided

that the said offence shall be punishable under

Sub-section (2) of S. 13 with imprisonment upto

seven years. In the Second Schedule of the Code of

Criminal Procedure, 1973 making classification of

offences against other laws, it is provided that the

offences which are punishable with imprisonment

for three year and upwards, but not more than

seven years, are non-bailable. By no stretch of

imagination can it be said that the offences under

Ss. 7 and 13(1)(d)r/w. S. 13(2) of the P.C. Act are

not punishable with imprisonment of three years

and upwards but not more than seven years. While

construing whether an offence is bailable or nonbailable

it is not the minimum sentence which can

be awarded under the law, is required to be seen

but the maximum sentence which can be awarded

under the law has to be seen and the maximum

sentence awardable under S.7 of the P.C. Act is five

years and for the offence under S. 13(1)(d) as is

provided in S. 13(2) is seven years and, therefore,

both the offences are non-bailable and the

Sessions Judge was not justified in holding that

the said offences are bailable.

10. A Division Bench of this court also had an occasion to

deal with this issue in the case of Mahesh Shivram Puthran V. The

Commissioner of Police, Thane, Dist. Thane and others; reported

in 2011 SCC OnLine Bom 389. In that case the court was

considering whether offences under sections 43 and 52 of the

M.R.T.P. Act, 1966 were cognizable or non cognizable. In that

context, the division bench referred to sub section 2 of section 4

and section 5 of Cr.p.c. The relevant discussion can be found in

paragraph Nos.12 and 13, which are as follows:-

12. The Act, by itself, does not provide whether the

said offence is cognizable or bailable. For that, we

have to refer to Section 4 of the Criminal Procedure

Code. The same reads thus:


“4. Trial of offences under the Penal

Code, 1860 and other laws.

(1) All offences under the Penal Code,

1860 shall be Investigated, inquired into, tried, and

otherwise dealt with according to the provisions

hereinafter contained

(2) All offences under any other law

shall be investigated, inquired into, tried, and

otherwise dealt with according to the same

provisions, but subject to any enactment for the

time being in force regulating the manner or place

of investigating, inquiring into trying or otherwise

dealing with such offences." (emphasis supplied)

Sub-section (1) refers to offences under

the Penal Code, 1860. This provision has no

application to the case on hand. However, subsection

(2) refers to all offences under any other

law which would include the offences punishable

under the said Act of 1966. In other words, offences

under the provisions of the Act of 1966 can be

investigated, enquired into, tried and otherwise

dealt with according to the same provisions, but

subject to any enactment for the time being in force

regulating the manner or place of investigating,

enquiring into, trying or otherwise dealing with

such offences. We have already alluded to the

provisions of the Act of 1966, which provide for

mechanism to institute prosecution for offences

punishable under the said Act and Rules made

thereunder. Accordingly, the said provisions would

prevail, being special enactment.

13. Besides, it may be useful to refer to Section 5 of

the Code, which reads thus:-

"Saving. – Nothing contained in this

Code shall, in the absence of a specific provision to

the contrary, affect any special or local law for the

time being in force, or any special jurisdiction or

power conferred or any special form of procedure

prescribed by any other law for the time being in

force." (emphasis supplied)

In Paragraph 14 the Division Bench recorded it’s

conclusion thus:

“As the maximum punishment provided

in terms of Section 52 of the Act, which has been

applied to the case on hand, being up to three

years, at best, the second category of cases specified

in Part II of Schedule I would be attracted. It would

necessarily follow that the offence under Section 52

of the Act is a cognizable and non-bailable offence.”


11. Recently, a Division Bench of the Rajasthan High Court

has also taken a similar view in the case of Nathu Ram S/o Purna

Ram Versus The State of Rajasthan reported in D. B. Cri. Ref.

No.1/2020. A specific question for reference posed before the

division bench of Rajasthan High Court was as follows:-

“What would be the nature of an offence (whether

cognizable or non-cognizable) for which

imprisonment “may extend to three years” is

provided and no stipulation is made in the statute

regarding it being cognizable or non-cognizable.”

After discussion the division bench answered the

reference in paragraph No.25 which reads thus:-

“25. Accordingly, the reference is answered in

terms that unless otherwise provided under the

relevant statute, the offences under the laws other

than IPC punishable with imprisonment to the

extent of three years, shall fall within the

classification II of offences classified under Part II

of First Schedule and thus, shall be cognizable and

non-bailable.”


12. The question, whether the offence is bailable or not

has to be seen in the light of definition of bailable offence provided

under section 2(a) of the Cr.p.c. which reads thus:

“2. Definitions……

(a) “bailable offence” means an offence which is

shown as bailable in the First Schedue, or which is

made bailable by any other law for the time being

in force; and “non bailable offence” means any

other offence;”

13. Thus, the next relevant sections would be sub section 2

of section 4 and section 5 of the Cr.p.c. as they are referred to by

the Division Bench of this court in the case of Mahesh Shivram

Puthran (supra). Part II of the Schedule-I reads thus:-

II – CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS

Offence Cognizable or noncognizable

Bailable or nonbailable

By what court

triable

If punishable with

death,

imprisonment for

life, or

imprisonment for

more than 7 years.

Cognizable Non-bailable Court of Session.


If punishable with

imprisonment for 3

years and upwards

but not more than 7

years.

Cognizable Non-bailable Magistrate of the

first class.

If punishable with

imprisonment for

less than 3 years or

with fine only.

Non-cognizable Bailable Any Magistrate.

14. Bare reading of this Part II of the Schedule -I of Cr.p.c.

shows that, if the offences in the other laws are punishable with

imprisonment for three years and upwards then the offences are

cognizable and non bailable. Wherever it is possible to impose the

punishment extending to three years, this category would apply,

because in such offences it is possible to impose sentence of exact

three years. In such cases offences would be non-bailable.

15. Therefore, first question raised before me is answered

that the offences under section 63 of the Copyright Act and section

103 of Trade Marks Act are non bailable in nature and, therefore,

since these sections are applied here, the application for

anticipatory bail is maintainable.

16. Coming back to the facts of this case, the allegations

against the present applicant are already mentioned herein above.

Shri. Soman submitted that, sub section 4 of section 115 of the

Trade Marks Act, 1999 prohibits investigation by any other officer

below the rank of Deputy Superintendent of Police. He also relied

on the same provision and submitted that the police officer before

making any search and seizure had to obtain opinion of the

Registrar on the facts involved in the offence relating to Trade

mark and shall abide by the opinion so obtained. Sub section 4 of

section 115 of Trade Marks Act reads thus:-

115. Cognizance of certain offences and the

powers of police officer for search and seizure

(4) Any police officer not below the rank of deputy

superintendent of police or equivalent, may, if he is

satisfied that any of the offences referred to in subsection

(3) has been, is being, or is likely to be,

committed, search and seize without warrant the

goods, die, block, machine, plate, other

instruments or things involved in committing the

offence, wherever found, and all the articles so

seized shall, as soon as practicable, be produced

before a Judicial Magistrate of the first class or

Metropolitan Magistrate, as the case may be:

Provided that the police officer, before

making any search and seizure, shall obtain the

opinion of the Registrar on facts involved in the

offence relating to trade mark and shall abide by

the opinion so obtained.

17. Shri. Soman in support of his contention relied on the

judgment of division bench of this court in the case of Anant s/o.

Tukaram Teke & Ors. Vs. The State of Maharashtra & Anr., decided

by the Aurangabad Bench of this court in Criminal Application

NO.1471 of 2013.

In that case, according to Shri. Soman, the division

bench had held that the provision of sub section 4 of section 115 of

the Act are mandatory in nature. He submitted that, in the present

case the opinion of the Registrar is not obtained.

18. Learned APP, on the other hand, submitted that, this is

not a case where the accused had tried to use a trademark which

was similar in nature to the one registered in favour of the

informant’s company, but they had actually used the same

trademark with the same number which was allotted to the first

informant. He submitted that the applicant does not have any

authority to manufacture such goods and pass them off as the

goods manufactured by the informant’s company. He submitted

that the accused have attempted to sell their own products in the

market whose standard is questionable. The consumers were led to

believe that the products were manufactured by the informant’s

company.

19. I have considered these submissions. The Judgment of

Anant Teke (supra) relied on by Shri. Soman will have to be read

in the light of the facts mentioned in that case. The informant’s

case therein was that the accused were in the similar business as

that of the informant i.e. business of selling tea packets. The pack

of the tea which accused was selling was deceptively similar to the

pack of the complainant. In that case the Deputy Superintendent of

Police of Beed visited factory of the accused and took action based

on the information that the accused were preparing their packets

in their factory situated at MIDC. After that, the police inspector of

Beed raided some shop premises and seized tea packets of the

accused. The Police Inspector seized the machinery of the accused

and Deputy Superintendent of Police had sent a letter to the

Registrar of Trade Marks seeking opinion under section 115(4) of

the Act. The division bench found fault with this procedure. It was

held in paragraphs 18 and 23 that, in the relevant facts and the

provisions of the Copyright Act and Trade Marks Act, the court

needed to go with the presumption that the compliance of

provision of section 115 of the Act was mandatory. In paragraph

26 of the Judgment it was mentioned that, there was a certificate

in favour of the accused under Copyright Act and due to such

certificate, act of the accused, in these circumstances, did not

amount to any offence under sections 102 to 104 and 105 of the

Trade Marks Act, 1999.

This is a distinguishing feature in this case. The

applicant has not claimed that he has any certificate registered

under the Copyright Act mentioning the informant’s product and

trademark registration number. Therefore, benefit of section

110(b) of the Trade Marks Act is not available to the applicant in

this case. In the present case, there was no question of seeking

opinion of the Registrar for Trademarks because, accused in this

case had not used a mark where there was a possibility of

similarity but they had gone ahead and used the very same

trademark with the very same number under which the trademark

was registered in favour of the informant’s company. Moreover, at

the time of registration of F.I.R. the goods in question were already

taken in custody. It was not a result of a fresh search and seizure

after that. Therefore, the observations in the case of Anant Teke

(supra) are not applicable to the present case.

20. In this case whether there is infringement of Copyright

Act attracting punishment under section 63 of the Act; is a matter

of investigation, but certainly there appears to be infringement of

the trademark registered in the name of the informant’s company.

Therefore, commission of offence punishable under section 103 of

the Trade Marks Act is clearly made out. The accused have falsely

applied the informant’s trademark to their own products and have

attempted to sell those products. Thus, the act of the accused also

amounts to offence under section 420 r/w. 511 of the IPC. By their

act, the public were induced or an attempt was made to induce the

public to buy these products under the impression that they were

manufactured by the informant’s company.


21. In the present case, there is also a statement of coaccused

which shows active involvement of the present applicant

and it was mentioned that the goods were given by the applicant

and they were manufactured at his unit. In this view of the matter,

custodial interrogation of the applicant is necessary. No relief of

anticipatory bail can be granted.

22. The application is rejected.

23. Before parting with the order, it is necessary to record

appreciation for the assistance rendered by all the learned counsel.

(SARANG V. KOTWAL, J.)

24. At this stage, Shri. Soman submitted that, the interim

relief granted earlier be continued for a period of two weeks.

However, considering that already few months have passed and

investigation needs to progress further, such request is rejected.

(SARANG V. KOTWAL, J.)


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