MUMBAI: Bombay high court has held that offences of infringement of copyright under Copyright Act and of falsely applying any trademark under the Trade Marks Act are non bailable offences as the punishment attracted is up to three years and can be “exact three years.”
Justice Sarang Kotwal had raised a legal question as to whether these offences punishable with up to three years imprisonment were bailable or non-bailable. The first point which the high court considered was whether offences under section 63 of Copyright Act (infringement of copyright) and section 103 of TM Act (false application of TM) which are not in the Indian Penal Code (IPC) but attract up to three years imprisonment are non-bailable or ‘bailable’. The high court held both these offences to be “non-bailable”.
Advocate Mandar Soman who appeared for the man seeking protection against arrest argued that a magistrate had already granted bail to a co-accused on the ground that section 418 IPC (cheating with knowledge of wrongful loss to person he ought to protect) which attracts upto three years is bailable. Soman claimed relief on parity, saying the Copyright and TM offences are also bailable.
The high court heard a prosecutor Ajay Patil and also appointed advocate Aniket Nikam as amicus curiae (friend of court) to assist on the law point. Nikam argued that several courts have held that offences where punishment can “extend to three years are non-bailable.” He also cited the classification of offences under the criminal procedure code (CrPC) to say that any offence where an offender may get sentenced to 3 years and more is ‘non-bailable’ while one where punishment is less than 3 years is bailable.
Justice Sarang after analyzing several judgments and the criminal law, held, “Bare reading” of Party II of schedule I of CrPC “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.”
He said, “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 a sentence of exact three years. In such cases offences would be non-bailable.”
In the case before him, he also said custodial interrogation is necessary.
The high court said, “certainly there appears to be infringement of the trademark registered in the name of the informant’s company. 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 (cheating)”. The high court rejected his plea and also rejected his counsel’s plea to continue interim protection saying probe has proceed now.
The classification of offences against other laws in CrPC says when an offence is punishable with death, life imprisonment or over seven years it is cognizable, non-bailable and triable by court of sessions. Same is the case when offences are punishable with imprisonment for 3 years and upwards but not more than 7 years.” Offences “punishable with imprisonment for less than 3 years or with fine only” are ‘non-cognizable’ ‘bailable’ and triable by any magistrate.
A bailable offence is one where the police on arresting a person can itself release him or her on bail. A non-bailable offence requires a court to grant or reject bail.