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Non-IPC Offence “Punishable Up To Three Years” Non-Bailable Because It Is Possible To Impose Sentence Of Exact Three Years For Such Offences: Bombay HC

 

In a recent, remarkable and righteous decision titled Piyush Subhashbhai Raniapa vs The State of Maharashtra in Anticipatory Bail Application No. 336 of 2021,  the Bombay High Court has recently on 26th February 2021 in exercise of its criminal appellate jurisdiction has reiterated that non-IPC offences punishable with up to three years of imprisonment will be categorized as cognizable and non-bailable. The Bombay High Court was hearing an anticipatory bail application filed by one Piyush Ranipa who apprehended arrest in a case pertaining mainly to copyright infringement and faking of trademark of the complainant company – Jain Irrigation System. Piyush was accused of manufacturing irrigation pipes, transporting and selling them under the trademark of the complainant company unauthorizedly.

To start with, Justice Sarang V Kotwal of Bombay High Court who authored this brilliant, brief and balanced judgment sets the ball rolling in para 1 of this notable judgment wherein it is put forth that, “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.”

To put things in perspective, it is then pointed out in para 2 that, “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.”

While noting in para 3 that a few legal questions arose while deciding this application, it is then stipulated in para 4 that, “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.PC 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.”

It would be pertinent to mention that it is then rightly stated in para 12 that, “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;””

Simply put, it is then rightly and most significantly enunciated in para 14 that, “Bare reading of this Part II of the Schedule -I of Cr.PC 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.”

As a corollary, it is then stated in para 15 that, “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.”

Needless to say, it would be relevant to note that it is then envisaged in para 16 that, “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.”

On the one hand, it is pointed out in para 17 that, “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.”

On the contrary, it is then put forward in para 18 that, “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.”

It cannot be glossed over that after listening to the submissions made, Justice Sarang then holds in para 19 that, “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.”

Frankly speaking, Justice Sarang then concedes in para 20 that, “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.”

No doubt, Justice Sarang after considering everything comes to hold in para 21 that, “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.”

Adding more to it, it is then held in para 22 that, “The application is rejected.”

What’s more, it is then held by Justice Sarang in para 23 that, “Before parting with the order, it is necessary to record appreciation for the assistance rendered by all the learned counsel.”

Finally, Justice Sarang then holds in para 24 that, “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.”

In conclusion, it must be said at the risk of repetition that para 14 sums up the essence of this notable judgment delivered by Justice Sarang V Kotwal of the Bombay High Court wherein it is clearly, cogently, categorically and convincingly stated that, “Bare reading of this Part II of the Schedule -I of Cr.PC 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.” It merits no reiteration that the legal position has thus been made quite explicitly clear on this that non-IPC offences punishable with up to three years of imprisonment will be categorized as cognizable and non-bailable. There can be no denying or disputing it!

Sanjeev Sirohi

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