Are copyright infringement offences cognizable or not?

By Akanksha Kar, LexOrbis
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In November 2019, the Delhi High Court heard a petition filed by Anurag Sanghi, who sought relief to quash a first information report (FIR) registered against him under sections 63 and 65 of the Copyright Act, 1957. Prior disputes between the petitioner Sanghi and Knit Pro over knitting needles had been resolved in an agreement. Under the deal, the petitioner agreed not to manufacture knitting needles for which Knit Pro held copyright. However, Knit Pro alleged that Sanghi continued to deal in infringing products.

copyright
Akanksha Kar
Senior associate
LexOrbis

Knit Pro brought a civil action against Sanghi for copyright infringement and an ex parte injunction was granted in its favour. The local commissioner visited the petitioner’s premises and seized the alleged infringing goods. A complaint was filed by Knit Pro alleging violation of the injunction order and infringement of its copyright. Knit Pro made an application under section 156(3) of the Code of Criminal Procedure, 1973, for registration of the FIR against the petitioner under sections 51, 63 and 64 of the Copyright Act, 1957, read with section 420 of the Indian Penal Code, 1973 (code). The chief metropolitan magistrate allowed the application and directed the police to register the FIR. Sanghi applied to a judge to stay the magistrate’s order, but his revised petition was rejected. Subsequently, the FIR was registered but challenged before the Delhi High Court.

Contested issue: The petitioner pleaded that the offence under section 63 of the act is not cognizable, that is, an arrestable offence as the punishment is not within the category of cognizable offences as set out in part II of the first schedule to the code. Punishment prescribed under section 63 of the act for a copyright infringement includes imprisonment offence for a term which shall not be less than six months, but may extend to three years.

The respondents argued that the offence under section 63 of the act falls within the code, which provides that offences punishable with imprisonment for three years and upwards but not more than seven years, are cognizable and non-bailable.

The code categorizes punishments in the following manner:

  • First category: Offences punishable with death, or imprisonment for life or more than seven years. They are cognizable and non-bailable;
  • Second category: Offences punishable with imprisonment for three years or more but not more than seven years. They are cognizable and non-bailable;
  • Third category: Offences punishable with imprisonment for less than three years or by a fine. They are non-cognizable and bailable.

The court took the view that by setting out these three categories the legislature intended to set out an exhaustive range of punishments. Most statutes provide for a range of sentences that may specify a maximum penalty, a minimum or both. Such ranges may not be identical to the contents of the three categories under the code, but that does not exclude offences from its ambit.

Classification of offences: The question before the court was how to classify the offence whose range of punishment does not fall exactly within any one category as set out in the code. In interpreting the word punishable, the Supreme Court in Bhupinder Singh and Ors v Jarnail Singh and Anr held that where an offence is punishable by a term of imprisonment that may extend to a specified period, the maximum sentence that can be imposed must be considered for the purposes of classification of offences under the code. The court noted that the Delhi High Court ruling in the Naresh Kumar Garg case was based on the Supreme Court decision in the Avinash Bhosale case, which held that an offence under section 63 of the Copyright Act was non-cognizable. In the Avinash Bhosale case, the Supreme Court drew a comparison with section 135(1)(ii) of the Customs Act, 1962, stating that an offence was punishable with a term, which may extend to three years or a fine or with both, and therefore is a bailable offence.

Following the authority of the Avinash Bhosale case, the high court in the Naresh Kumar Garg case held that the interpretation of the phrase imprisonment, which may extend to three years or a fine or both in section 135(1)(ii) of the Customs Act, applies equally to cases under Section 63 of the act.

Applying the above principles, the high court in the Sanghi case held that offences under section 63 of the act were non-cognizable offences and allowed the petition.

Akanksha Kar is a senior associate at LexOrbis.

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