M/S KNIT PRO INTERNATIONAL versus THE STATE OF NCT OF DELHI & ANR. on 20 May 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 25.11.2019 passed by the High Court of Delhi at NewDelhi in Writ Petition (Crl.) No.3422 of 2018 by which the High Courthas allowed the said writ petition and has quashed the FIR bearing No.431of 2018 filed against the respondents for the offences under Sections 63Cand 65 of the Copyright Act, 1957 (hereinafter referred to as ‘CopyrightAct’), the original complainant has preferred to the present appeal.

2. That the appellant herein filed an application under Section156(3) Cr.P.C. and sought directions from the learned Chief MetropolitanMagistrate for the registration of FIR against the respondent No.2 hereinDfor the offences under Sections 51, 63 & 64 of the Copyright Act readwith Section 420 of the IPC. By order dated 23.10.2018, the learnedCMM allowed the said application and directed the concerned SHO toregister the FIR under the appropriate provision of law. That pursuant tothe said order, FIR bearing No.431 of 2018 came to be registered withEPS Bawana. That thereafter respondent no.2 herein – original accusedfiled the present petition before the High Court with a prayer to quashthe criminal proceedings on various grounds. However, at the time ofhearing, the original writ petitioner – accused prayed to quash the criminalproceedings on the sole ground that the offence under Section 63 of theCopyright Act is not a cognizable and a non-bailable offence.

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2.1 By the impugned judgment and order the High Court hasallowed the said writ petition and has quashed the criminal proceedingsand the order passed by the learned CMM passed in Criminal Applicationunder Section 156(3) Cr.P.C. by holding that the offence under Section63 of the Copyright Act is a non-cognizable offence.

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3. Mr. R.K. Tarun, learned counsel appearing on behalf of theappellant has vehemently submitted that the High Court has committeda grave error in observing and holding that the offence punishable underSection 63 of the Copyright Act is a non-cognizable offence and it doesnot fall within Part II of the First Schedule of the Cr.P.C.H

3.1 It is submitted that while holding that the offence under Section63 of the Copyright Act is a non-cognizable offence, the High Court hasnot properly appreciated the decision of this Court in the case of RakeshKumar Paul vs. State of Assam, (2017) 15 SCC 67 and hasmisinterpreted the said judgment.

3.2 It is submitted that in the case of Intelligence Officer,Narcotics Control Bureau vs. Sambhu Sonkar, AIR 2001 SC 830,it is specifically observed and held by this Court that the maximum termof imprisonment that is prescribed for the said offence, cannot be excludedfor the purpose of classification of the offence.

3.3 It is submitted by learned counsel for the appellant that for theoffences under Section 63 of the Copyright Act, the punishment shall beimprisonment for a term which shall not be less than six months butwhich may extend to three years. It is submitted that therefore thepunishment of three years can be imposed for the said offence. It issubmitted therefore that Part II of the First Schedule of the Cr.P.C.would be applicable. It is submitted that only in a case where the offencepunishable with imprisonment for less than three years or with fine onlyoffence shall be non-cognizable. It is submitted that as per Part II of theFirst Schedule of the Cr.P.C,. if the offence is punishable withimprisonment for three years and upwards but not less than 7 years, theoffence would be cognizable. It is submitted that in that view of thematter the High Court has committed a grave error in quashing the FIRwhile holding that the offence under Section 63 of the Copyright Act is anon-cognizable offence.

4. Present appeal is vehemently opposed by Shri Siddhartha Dave,learned Senior Advocate appearing on behalf of respondent no.2.

4.1 Shri Dave, learned Senior Counsel has heavily relied upon thedecision of this Court in the case of Rakesh Kumar Paul (supra). It issubmitted that in the aforesaid decision the expression “not less than 10years” has been interpreted by this Court and it is held that the saidexpression would mean punishment should be 10 years and therefore,Section 167(2)(a)(i) would apply. It is submitted that in that view of thematter the High Court has not committed any error in holding that theoffence under Section 63 of the Copyright Act is a non-cognizableoffence.

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A4.2 In the alternative, it is prayed by Shri Dave learned SeniorAdvocate appearing on behalf of respondent no.2 that if this Court holdsthat the offence under Section 63 of the Copyright Act is a cognizableoffence, in that case, the matter may be remanded to the High Court todecide the writ petition on merits on other grounds, as no other groundsBwere pressed into service.

5. We have heard learned counsel for the respective parties atlength.

5.1 The short question which is posed for consideration beforethis Court is, whether, the offence under Section 63 of the Copyright ActCis a cognizable offence as considered by the Trial Court or a non-cognizable offence as observed and held by the High Court.

5.2 While answering the aforesaid question Section 63 of theCopyright Act and Part II of the First Schedule of the Cr.P.C. are requiredDto be referred to and the same are as under:

“63. Offence of infringement of copyright or otherrights conferred by this Act. - Any person who knowinglyinfringes or abets the infringement of- E

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(a) the copyright in a work, or

(b) any other right conferred by this Act, except the rightconferred by section 53A except the right conferred by section53A shall be punishable with imprisonment for a term which shallnot be less than six months but which may extend to three yearsand with fine which shall not be less than fifty thousand rupeesbut which may extend to two lakh rupees: Provided that wherethe infringement has not been made for gain in the course oftrade or business the court may, for adequate and special reasonsto be mentioned in the judgment, impose a sentence ofimprisonment for a term of less than six months or a fine of lessthan fifty thousand rupees.

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Explanation - Construction of a building or other structurewhich infringes or which, if completed, would infringe the copyrightin some other work shall not be an offence under this section.”

M/S. KNIT PRO INTERNATIONAL V. THE STATE OF NCT OFDELHI & ANR. [M. R. SHAH, J.]

II – CLASSIFICATION OF OFFENCES AGAINST OTHERLAWS

5.3 Thus, for the offence under Section 63 of the Copyright Act,the punishment provided is imprisonment for a term which shall not beless than six months but which may extend to three years and with fine.Therefore, the maximum punishment which can be imposed would bethree years. Therefore, the learned Magistrate may sentence the accusedfor a period of three years also. In that view of the matter consideringPart II of the First Schedule of the Cr.P.C., if the offence is punishablewith imprisonment for three years and onwards but not more than sevenyears the offence is a cognizable offence. Only in a case where theoffence is punishable for imprisonment for less than three years or withfine only the offence can be said to be non-cognizable. In view of theabove clear position of law, the decision in the case of Rakesh KumarPaul (supra) relied upon by learned counsel appearing on behalf ofrespondent no.2 shall not be applicable to the facts of the case on hand.The language of the provision in Part II of First Schedule is very clearand there is no ambiguity whatsoever.

6. Under the circumstances the High Court has committed a graveerror in holding that the offence under Section 63 of the Copyright Act isa non-cognizable offence. Thereby the High Court has committed agrave error in quashing and setting aside the criminal proceedings andthe FIR. Therefore, the impugned judgment and order passed by theHigh Court quashing and setting aside the criminal proceedings/FIR underSection 63 of the Copyright Act deserves to be quashed and set aside.

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A7. In view of the above discussion and for the reason stated above,it is observed and held that offence under Section 63 of the CopyrightAct is a cognizable and non-bailable offence. Consequently, the impugnedjudgment and order passed by the High Court taking a contrary view ishereby quashed and set aside and the criminal proceedings againstrespondent no.2 for the offence under Sections 63 & 64 of the CopyrightBAct now shall be proceeded further in accordance with law and on itsown merits treating the same as a cognizable and non-bailable offence.

Present appeal is allowed to the aforesaid extent. However, inthe facts and circumstances of the case there shall be no order as tocosts.C

Bibhuti Bhushan Bose

Appeal allowed.

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