Copyright infringement offences: Cognizable or not?

By Aprajita Nigam and Mahima Madan, LexOrbis
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Cognizability is one of the various kinds of classifications pertaining to offences. A cognizable offence is one for which a police officer may arrest without warrant. The cognizability of the offence of copyright infringement has been consistently debated and is a matter that the courts have considered in a number of cases. Since no clear picture as to cognizability of the offences is provided under the Copyright Act, 1957, one therefore has to consider the first schedule, part II of the Code of Criminal Procedure, 1973 (CrPc), which divides offences (other than the ones falling under the Indian Penal Code) into following categories.

Aprajita NigamAssociateLexOrbis
Aprajita Nigam
Associate
LexOrbis

Category 1: If punishable with death, imprisonment for life or for more than seven years; cognizable and non-bailable; triable by court of session.

Category 2: If punishable with imprisonment for three years and above but not more than seven years; cognizable and non-bailable; triable by magistrate of the first class.

Category 3: If punishable with imprisonment: less than three years or a fine; non-cognizable and bailable; triable by any magistrate.

Some offences relating to copyright infringement, such as possession of plates used for making infringing copies, clearly fall within category 3 because the prescribed punishment is less than three years. It is unclear, however, whether the offence of copyright infringement itself, together with a number of related offences, are cognizable. Section 63 of the act provides that the punishment may extend to three years. The question is whether the words “may extend to three years” fall in category 2 (imprisonment for three years and upwards) or in category 3 (imprisonment for less than three years). The courts have delivered conflicting decisions.

Gauhati High Court (Jitendra Prasad Singh v State of Assam, 2002) and Kerala High Court (Suresh Kumar s/o. Kumaran v The Sub-Inspector of Police, 2007) decided that as the words “may extend to three years” include punishment of three years, offences prescribing such a punishment shall fall in category 2.

Mahima MadanAssociateLexOrbis
Mahima Madan
Associate
LexOrbis

However, in more recent judgments, Andhra Pradesh High Court (Amarnath Vyas v State of AP, 2006), Delhi High Court (State Govt of NCT Delhi v Naresh Kumar Garg, 2013) and Rajasthan High Court (Deshraj v State of Rajasthan and Anor, 2017) have taken a contrary view, holding that the offence of copyright infringement is non-cognizable. These courts held that the offence of copyright infringement does not fall in category 2 as the words “may extend to three years” and “three years and upwards” do not mean the same. In the former case, three years is the maximum punishment, while in the latter, three years is the minimum punishment.

These three congruent high court decisions are based on two decisions of the Supreme Court: Avinash Bhosale v Union of India, (2007) and Rajeev Choudhary v State of NCT Delhi, (2001). In the former, the court held that an offence punishable under section 135(1)(ii) of the Customs Act by imprisonment that may extend to three years does not fall into category 2 and is a non-cognizable and bailable offence. In the latter case, the court, while considering section 386 of the Indian Penal Code and section 167 of the CrPC, held that the words “may extend to 10 years” do not mean the same as “not less than 10 years” or “10 years or more”. In State Govt of NCT Delhi v Naresh Kumar Garg (2013), Delhi High Court expressly stated that the decision in Avinash Bhosale v Union of India has impliedly overruled the earlier decisions by the Gauhati and Kerala high courts.

Sections 64 and 70 of the act have been used to support an opposite view. Section 64(1) gives authority to police officers, not below the rank of inspector, to seize without warrant, infringing copies of work or all plates used for purpose of making such copies. This power of seizure has been often raised as an argument favouring cognizability. However, Delhi High Court in Naresh Kumar Garg case stated that “had the offence of copyright infringement been cognizable and non-bailable, there was no necessity of especially giving the power to seize without warrant under section 64.” Section 70 provides that offences under the act shall not be tried by any court inferior to that of the metropolitan magistrate or a magistrate of the first class. This suggests that the offence is one in category 2. However, the purpose of section 70 is only to limit or restrict the scope of the term “any magistrate” in category 3 by specifically excluding courts inferior to that of the metropolitan magistrate or a magistrate of the first class.

Therefore, the offence of copyright infringement is a non-cognizable one, with a special power conferred on the police to seize infringing copies without warrant.

Aprajita Nigam and Mahima Madan are associates at LexOrbis.

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