The High Court quashed an FIR and associated proceedings for alleged copyright infringement under the Copyright Act, 1957, holding that Section 63 of the Act prescribes a non-cognizable offence punishable with less than three years' imprisonment.
FIR No. 23/2009 and subsequent proceedings quashed; bail bond cancelled.
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USJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1314 OF 2009
Mr. V.N. Shingnapurkar for the Petitioners Mr. D.P. Adsule, APP for the respondent State
CORAM : B.H. MARLAPALLE & R.Y.GANOO, JJ. DATE : November, 2009
JUDGMENT : (Per R.Y. Ganoo, J.)
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under Section 53 r/w. Section 61 of the said Act. Accordingly panchanama
of the situation at site and in particular with reference to the board was conducted and FIR filed by Mangal U. Pandey was received by the police and the police at Kandivali police station registered cime vide FIR No. 23/09 against the petitioners under Section 51 r/w. Section 63 of the said
Act. The petitioner No.1 came to be arrested on 28th March, 2009 itself. Subsequently, he was released on bail.
petitioners took us to the provisions of Section 63 of the said Act which are as under :-
“Any person who knowingly infringes or abets the infringement of-
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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. 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.”
would go to show that maximum sentence of imprisonment which could be imposed for having committed an offence punishable under Section 63 of the said Act may extent to 3 years. He subsequently took us through Part II of Schedule I of Cr.P.C. which provides for classification of the offences as cognizable / non-congnizable. He drew our attention to Item No.3 and submitted that if offence is punishable with imprisonment for less than 3 years or with fine only then it is non-cognizable. Learned advocate Mr. Shingnapurkar submitted that Section 63 of the said Act quoted above if perused would go to show that the punishment provided for offence punishable under Section 63 of the said Act is less than 3 years and as such the said offence would be non-cognizable. Learned advocate
Mr. Shingnapurkar submitted that once it is accepted that offence punishable under Section 63 of the said Act is non-cognizable, the Court will have to accept his argument that the police were not empowered to treat the complaint filed by Mr. Mangal U. Pandey as a complaint in regard
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to a cognizable offence. He, therefore, submitted that it was wrong on the part of the police to register the crime against the petitioners vide FIR No. 23/09 under Section 51 r/w. Section 63 of the said Act. He submitted that
it was necessary for the police on receipt of complaint by Mr. Mangal U. Pandey to take action under Section 155 of the Code of Civil Procedure. He, therefore, submitted that if the action initiated by the police is illegal as submitted by him, the FIR is required to be quashed. He also submitted that subsequent proceedings initiated pursuant to the FIR is required to be quashed.
the purposes of classification of the offence, one will have to apply Item No.3 of Part II of Schedule I of Cr.P.C. This will mean that the argument
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advanced by learned advocate Mr. Shingnapurkar that the offence punishable under Section 63 of the said Act is non-cognizable. Once it is recorded that offence punishable under Section 63 of the said Act is noncognizable, it was erroneous on the part of the police to register the crime. It was necessary for the police to receive the complaint and take action under Section 155 of Cr.P.C. and treat the said complaint as a complaint in regard to a non-cognizable offence. As a result of these observations, the action initiated by the police namely arrest of petitioner No.1 is illegal and void ab initio.
[R.Y.GANOO, J.] [B.H. MARLAPALLE, J.]
3 issues framed by the court
Whether the offence under Section 63 of the Copyright Act, 1957 constitutes a cognizable or non-cognizable offence.
Whether registration of an FIR under Section 51 of the Copyright Act in a non-cognizable case is legally valid.
Whether the arrest of the petitioner was lawful in light of the cognizable nature of the offence.
5 provisions across 2 enactments
Vijay Sharma
Smt. Vimlesh Sharma
State of Maharashtra
B.H. Marlappalle
R.Y. Ganoo
As recorded by the court registry
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