By Vikrant Rana and Priya Adlakha
Potential IP litigants often have to make a choice between initiating civil or criminal action against infringers. Among the Indian IP laws, Section 115(3) of the Trade Marks Act, 1999, and Section 63 of the Copyright Act, 1957 are the primary statutory provisions pertaining to criminal action against acts of infringement.
While the Trade Marks Act, under Section 115(3), specifically provides that acts of infringement will be cognizable, Section 63 of the Copyright Act does not clarify in the Act itself as to whether the offences committed under it are to be cognizable or non-cognizable.
This ambiguity had brought forth varied judicial pronouncements by the High Courts of the country, and it needed to be authoritatively settled by the Hon’ble Supreme Court of India.
Recently the Hon’ble Supreme Court of India in the case of M/s Knit Pro International v. The State of NCT of Delhi & Anr.[1] vide its judgment dated May 20, 2022 cleared the ambiguity regarding whether offences under Section 63 of the Copyright Act are cognizable or non-cognizable.
Brief facts of the case
The case of the Appellant started with an application under Section 156(3) of Code of Criminal Procedure, 1973 (Cr.P.C.) filed before the learned Chief Metropolitan Magistrate (CMM), seeking for directions to be given to the concerned Station House Officer (SHO) to register an FIR for offences under Section 51, 63, 64 of the Copyright Act, read with Section 420 of the Indian Penal Code.
The said application was allowed by the Learned CMM vide order dated October 23, 2018 pursuant to which FIR No. 431 of 2018 was registered with PS Bawana.
Thereafter, Respondent No. 2, who had been named as the accused in the said FIR, filed a quashing petition before the Hon’ble Delhi High Court, seeking for the said FIR to be quashed by stating various grounds. However, at the time of hearing arguments, the accused had prayed to quash the criminal proceedings on the sole ground that the offence under Section 63 of the Copyright Act is not a cognizable and non-bailable offence.
The Hon’ble Delhi High Court vide the impugned order dated November 25, 2019, had allowed the petition of the accused and quashed the criminal proceedings as well as the order passed by the Learned CMM, by holding that offences under Section 63 of the Copyright Act is a non-cognizable offence.
Arguments on behalf of the Plaintiff
In support of its appeal, the Appellant made the following arguments:
- That the Hon’ble High Court did not appreciate the decision of the Hon’ble Supreme Court in the case of Rakesh Kumar Paul vs. State of Assam (2017)15 SCC 67
- It has been specifically held in the case of Intelligence Officer, Narcotics Control Bureau vs. Sambhu Sonkar, AIR 2001 SC 830, that the maximum term of imprisonment that is prescribed under Section 63 of the Copyright Act, cannot be excluded for classification of the offence.
- Since offences under Section 63have been stipulated to be punishable with imprisonment for a term which may extend to three years, therefore Part II of the First Schedule of Cr.P.C. would be applicable. As per Part II of the First Schedule of Cr.P.C, if the offence is punishable with imprisonment for three years and upwards but not more than seven years, the offence would be cognizable.
- Only those cases are non-cognizable that are punishable either with imprisonment for less than three years or punishable only with a fine.
Arguments on behalf of Respondent no. 2/ Accused
Respondent No. 2 (Accused) vehemently opposed the appeal on the following grounds:
- Relying on the case of Rakesh Kumar Paul vs. State of Assam (2017)15 SCC 67, it was argued that in the said case, the expression ‘not less than 10 years’ has been interpreted to mean punishment should be of 10 years. Taking this interpretation, the decision of the Hon’ble High Court was not erroneous.
- If the Hon’ble Supreme Court was of the view that Section 63 is indeed cognizable in nature, then instead of overturning the decision of the Hon’ble Delhi High Court, the matter may be remanded back so that it may be decided on merits by taking into consideration the other grounds mentioned by the accused in his quashing petition, which, at the time of last hearing, had not been pressed into service.
Offence under Section 63 of Copyright Act is a Cognizable Offence
Part II of the First Schedule of the Code of Criminal Procedure provides for classification of offences against other laws, on the basis of the punishment prescribed under the respective Acts, as under:
| Offence | Cognizable or non-cognizable | Bailable or non-bailable | By what court triable |
| If punishable with death, imprisonment for life, or imprisonment for more than 7 years | Cognizable | Non-bailable | Court of Session |
| If punishable with imprisonment for 3 years and upwards but not more than 7 years. | Cognizable | Non-bailable | Magistrate of the first class |
| If punishable with imprisonment for less than 3 years or with fine only. | Non-cognizable | Bailable | Any Magistrate |
Section 63 of the Copyright Act provides punishment of imprisonment for a term which shall not be less than six months but which may extend to three years and with fine. Hence, the Magistrate may, per his judicious discretion, sentence the accused for a maximum period of three years.
Taking into consideration the above said Schedule, if the offence is punishable with imprisonment for three years and upwards but not more than seven years, then the offence shall be classified as a cognizable offence. Only in a case where the offence is punishable with imprisonment for less than three years or with fine only, can the offence be said to be non-cognizable.
The language of Part II of First Schedule of the Cr.P.C. is very clear and there is no ambiguity whatsoever.
Under the circumstances, the High Court has committed a grave error in holding that the offence under Section 63 of the Copyright Act is a non-cognizable offence, and quashing of the criminal proceedings and the FIR are consequently erroneous. Therefore, the High Court’s quashing order was set aside by the Apex Court and the criminal proceedings were directed to proceed as per law and on merits, and by treating the offence under Sections 63 and 64 of the Copyright Act as cognizable and non-bailable.
[1] Criminal Appeal no. 807 of 2022
Rima Majumdar, Senior Associate Advocate at S.S. Rana & Co. has assisted in the research of this article.
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