Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 807 of 2022
M/s Knit Pro International ...Appellant
Versus
The State of NCT of Delhi & Anr. ...Respondents
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 25.11.2019 passed by the High
Court of Delhi at New Delhi in Writ Petition (Crl.) No.3422 of
2018 by which the High Court has allowed the said writ
petition and has quashed the FIR bearing No.431 of 2018 filed
against the respondents for the offences under Sections 63
and 65 of the Copyright Act, 1957 (hereinafter referred to as
‘Copyright Act’), the original complainant has preferred to the
Signature Not Verified
Digitally signed by
Jatinder Kaur
Date: 2022.05.20
17:14:34 IST
Reason:
present appeal.
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2. That the appellant herein filed an application under
Section 156(3) Cr.P.C. and sought directions from the learned
Chief Metropolitan Magistrate for the registration of FIR
against the respondent No.2 herein for the offences under
Sections 51, 63 & 64 of the Copyright Act read with Section
420 of the IPC. By order dated 23.10.2018, the learned CMM
allowed the said application and directed the concerned SHO
to register the FIR under the appropriate provision of law.
That pursuant to the said order, FIR bearing No.431 of 2018
came to be registered with PS Bawana. That thereafter
respondent no.2 herein – original accused filed the present
petition before the High Court with a prayer to quash the
criminal proceedings on various grounds. However, at the
time of hearing, the original writ petitioner – accused prayed
to quash the criminal proceedings on the sole ground that the
offence under Section 63 of the Copyright Act is not a
cognizable and a nonbailable offence.
2.1 By the impugned judgment and order the High Court has
allowed the said writ petition and has quashed the criminal
proceedings and the order passed by the learned CMM passed
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in Criminal Application under Section 156(3) Cr.P.C. by
holding that the offence under Section 63 of the Copyright Act
is a noncognizable offence.
3. Mr. R.K. Tarun, learned counsel appearing on behalf of
the appellant has vehemently submitted that the High Court
has committed a grave error in observing and holding that the
offence punishable under Section 63 of the Copyright Act is a
noncognizable offence and it does not fall within Part II of the
First Schedule of the Cr.P.C.
3.1 It is submitted that while holding that the offence under
Section 63 of the Copyright Act is a noncognizable offence,
the High Court has not properly appreciated the decision of
this Court in the case of Rakesh Kumar Paul vs. State of
Assam, (2017) 15 SCC 67 and has misinterpreted the said
judgment.
3.2 It is submitted that in the case of Intelligence Officer,
Narcotics Control Bureau vs. Sambhu Sonkar, AIR 2001
it is specifically observed and held by this Court that
SC 830,
the maximum term of imprisonment that is prescribed for the
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said offence, cannot be excluded for the purpose of
classification of the offence.
3.3 It is submitted by learned counsel for the appellant that
for the offences under Section 63 of the Copyright Act, the
punishment shall be imprisonment for a term which shall not
be less than six months but which may extend to three years.
It is submitted that therefore the punishment of three years
can be imposed for the said offence. It is submitted 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
offence punishable with imprisonment for less than three
years or with fine only offence shall be noncognizable. It is
submitted that as per Part II of the First Schedule of the
Cr.P.C,. if the offence is punishable with imprisonment for
three years and upwards but not less than 7 years, the offence
would be cognizable. It is submitted that in that view of the
matter the High Court has committed a grave error in
quashing the FIR while holding that the offence under Section
63 of the Copyright Act is a noncognizable offence.
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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 the decision of this Court in the case of
Rakesh Kumar
Paul (supra). It is submitted that in the aforesaid decision the
expression “not less than 10 years” has been interpreted by
this Court and it is held that the said expression would mean
punishment should be 10 years and therefore, Section 167(2)
(a)(i) would apply. It is submitted that in that view of the
matter the High Court has not committed any error in holding
that the offence under Section 63 of the Copyright Act is a
noncognizable offence.
4.2 In the alternative, it is prayed by Shri Dave learned
Senior Advocate appearing on behalf of respondent no.2 that if
this Court holds that the offence under Section 63 of the
Copyright Act is a cognizable offence, in that case, the matter
may be remanded to the High Court to decide the writ petition
on merits on other grounds, as no other grounds were pressed
into service.
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5. We have heard learned counsel for the respective parties
at length.
5.1 The short question which is posed for consideration
before this Court is, whether, the offence under Section 63 of
the Copyright Act is a cognizable offence as considered by the
Trial Court or a noncognizable offence as observed and held
by the High Court.
5.2 While answering the aforesaid question Section 63 of the
Copyright Act and Part II of the First Schedule of the Cr.P.C.
are required to be referred to and the same are 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 conferred by this Act, except
the right conferred by section 53A 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 term of less than six months or a
fine of less than fifty thousand rupees.
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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."
II – CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS
| Offence | Cognizable or<br>noncognizable | Bailable or<br>non<br>cognizable | By what<br>court triable |
|---|---|---|---|
| If punishable<br>with death,<br>imprisonment<br>for life, or<br>imprisonment<br>for more than<br>7 years | Cognizable | Nonbailable | Court of<br>Session |
| If punishable<br>with<br>imprisonment<br>for 3 years<br>and upwards<br>but not more<br>than 7 years. | Cognizable | Nonbailable | Magistrate of<br>the first class |
| If punishable<br>with<br>imprisonment<br>for less than<br>3 years or<br>with fine<br>only. | Noncognizable | Bailable | Any<br>Magistrate |
5.3 Thus, for the offence under Section 63 of the Copyright
Act, the punishment provided is imprisonment for a term
which shall not be less than six months but which may
extend to three years and with fine. Therefore, the maximum
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punishment which can be imposed would be three years.
Therefore, the learned Magistrate may sentence the accused
for a period of three years also. In that view of the matter
considering Part II of the First Schedule of the Cr.P.C., if the
offence is punishable with imprisonment for three years and
onwards but not more than seven years the offence is a
cognizable offence. Only in a case where the offence is
punishable for imprisonment for less than three years or with
fine only the offence can be said to be noncognizable. In view
of the above clear position of law, the decision in the case of
Rakesh Kumar Paul (supra) relied upon by learned counsel
appearing on behalf of respondent 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 clear and there is
no ambiguity whatsoever.
6. Under the circumstances the High Court has committed
a grave error in holding that the offence under Section 63 of
the Copyright Act is a noncognizable offence. Thereby the
High Court has committed a grave error in quashing and
setting aside the criminal proceedings and the FIR. Therefore,
the impugned judgment and order passed by the High Court
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quashing and setting aside the criminal proceedings/FIR
under Section 63 of the Copyright Act deserves to be quashed
and set aside.
7. In view of the above discussion and for the reason stated
above, it is observed and held that offence under Section 63 of
the Copyright Act is a cognizable and nonbailable offence.
Consequently, the impugned judgment and order passed by
the High Court taking a contrary view is hereby quashed and
set aside and the criminal proceedings against respondent
no.2 for the offence under Sections 63 & 64 of the Copyright
Act now shall be proceeded further in accordance with law
and on its own merits treating the same as a cognizable and
nonbailable offence.
Present appeal is allowed to the aforesaid extent.
However, in the facts and circumstances of the case there
shall be no order as to costs.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(B.V. NAGARATHNA)
New Delhi,
May 20, 2022.
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