Recently, a Division Bench of the Rajasthan High Court
has also taken a similar view in the case of Nathu Ram S/o Purna
Ram Versus The State of Rajasthan reported in D. B. Cri. Ref.
No.1/2020. A specific question for reference posed before the
division bench of Rajasthan High Court was as follows:-
“What would be the nature of an offence (whether
cognizable or non-cognizable) for which
imprisonment “may extend to three years” is
provided and no stipulation is made in the statute
regarding it being cognizable or non-cognizable.”
After discussion the division bench answered the
reference in paragraph No.25 which reads thus:-
“25. Accordingly, the reference is answered in
terms that unless otherwise provided under the
relevant statute, the offences under the laws other
than IPC punishable with imprisonment to the
extent of three years, shall fall within the
classification II of offences classified under Part II
of First Schedule and thus, shall be cognizable and
non-bailable.”
12. 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;”
13. Thus, the next relevant sections would be sub section 2
of section 4 and section 5 of the Cr.p.c. as they are referred to by
the Division Bench of this court in the case of Mahesh Shivram
Puthran (supra). Part II of the Schedule-I reads thus:-
II – CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS
Offence Cognizable or noncognizable
Bailable or nonbailable
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.
14. Bare reading of this Part II of the Schedule -I of Cr.p.c.
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.
15. 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 336 OF 2021
Piyush Subhashbhai Ranipa Vs The State of Maharashtra
CORAM : SARANG V. KOTWAL, J.
DATE : 26th FEBRUARY, 2021
1. 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.
2. 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.
3. A few legal questions arose while deciding this
application. Therefore, I have heard Shri. Mandar Soman, learned
counsel for the applicant, Shri. Ajay Patil, learned APP for the
State. Shri. Aniket Nikam, learned counsel was requested to assist
the court for deciding a larger issue as to whether offences
punishable upto three years were bailable or non bailable.
4. 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.p.c. 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.
5. Shri. Soman submitted that the schedule of Cr.p.c. does
refer to other laws and can be used to decide whether the offences
in Statutes other than Indian Penal Code are bailable or non
bailable. He submitted that the schedule of Cr.p.c. can be applied
to other Acts, keeping in mind object and reasons of that
particular Act. He submitted that, looking at the scheme of
Copyright Act and Trade Marks Act, it shows that the offences are
bailable.
6. As against this, Shri. Nikam and Shri. Patil submitted
that, this issue is no more res-integra and different courts
including a Division bench of this court have held that the offences
in which punishment can extend upto 3 years are non bailable
offences.
7. I have considered their submissions in that behalf. Shri.
Patil and Shri. Nikam both have relied on a few judgments.
8. First of these was a judgment of single Judge of this
court passed in the case of Ramrao Marotrao Budruk Vs. The State
of Maharashtra and another reported in 1994 SCC OnLine Bom
407 . In that case the court was deciding whether section 2 of the
Prevention of Insults to National Honour Act, 1971 makes offence
under that Act; bailable or non bailable. In that context,
paragraph Nos.3 and 8 of that Judgment are important. Those two
paragraphs are reproduced as follows:-
“3. Section 2 of the Prevention of Insults to National
Honour Act, 1971 (hereinafter referred to as ‘the
Act’ for the sake of bravity) runs thus:
“whoever in any public place or in any other place
within public view burns, mutilates, …. or otherwise
brings into contempt (whether by words, either
spoken or written, or by acts) the Indian National
Flag or the Constitution of India or any part thereof,
shall be punished with imprisonment for a term
which may extend to three years, or with fine, or
with both.
…….
…….
8. Section 2 of the Act empowers the Court to
sentence an accused upto 3 years and it is a
maximum sentence but permissible. Therefore, it
makes no difference by the fact that the
imprisonment for such an offence can also be less
than 3 years. To put in figures, for an offence under
section 2 of the Act, the imprisonment for 2 years
and 365 days can be inflicted or ever less than that.
As such, it would be an offence punishable with
imprisonment for 3 years which would make it as a
non bailable one. If the punishment is upto 2 years
and 364 days it would be an offence punishable
with imprisonment for less than 3 years so as to
make it a bailable on under category No.3 of the
said classification. If the offence therefore, falls
within the corners of category No.2 of the said
classification, an application under section 438,
Cr.P.C. for a relief anticipatory bail would be
maintainable as the offence would be a non bailable
one. The learned 2nd Additional Sessions Judge,
therefore, committed an error in treating the offence
under section 2 of the Act as a bailable one.”
9. Similar view was expressed by another single Judge of
this court in the case of State of Maharashtra Vs. Shri. Suresh
Ganpatrao Kenjale reported in 1995 CriLJ 2478. The relevant
paragraph No.3 in that judgment is reproduced as follows:-
“3. The Sessions Judge, Bhandara, while rejecting
the application for police custody observed that for
the offence under S. 7 of the P.C. Act the
imprisonment prescribed is not less than six
months but that may extend to five years, and for
the offence under S. 13(1)(d) r/w S. 13(2) of the
P.C. Act the minimum imprisonment is one year
and it may extend to seven years, and thus
concluded that the said offences are punishable
with imprisonment for less than three years and
therefore, they are bailable offences and the police
custody remand cannot be ordered. The reasoning
given by the Sessions Judge on its face appears to
be fallacious. He has not properly construed the
punishment prescribed under S. 7 as well as under
S. 13(1)(d) r/w 13(2) of the Prevention of
Corruption Act and in the light of Schedule-II of
the Code of Criminal Procedure, 1973 making
classification of offences against other laws. For
the offence under S. 7 of the P.C. Act, it is provided
that the said offence shall be punishable with
imprisonment, which shall not be less than six
months, which may extend to five years and shall
also be liable to fine. This means that the
maximum punishment for an offence under S. 7 of
the P.C. Act is five years. Similarly for the offence
under S. 13(1)(d) of the P.C. Act, it is provided
that the said offence shall be punishable under
Sub-section (2) of S. 13 with imprisonment upto
seven years. In the Second Schedule of the Code of
Criminal Procedure, 1973 making classification of
offences against other laws, it is provided that the
offences which are punishable with imprisonment
for three year and upwards, but not more than
seven years, are non-bailable. By no stretch of
imagination can it be said that the offences under
Ss. 7 and 13(1)(d)r/w. S. 13(2) of the P.C. Act are
not punishable with imprisonment of three years
and upwards but not more than seven years. While
construing whether an offence is bailable or nonbailable
it is not the minimum sentence which can
be awarded under the law, is required to be seen
but the maximum sentence which can be awarded
under the law has to be seen and the maximum
sentence awardable under S.7 of the P.C. Act is five
years and for the offence under S. 13(1)(d) as is
provided in S. 13(2) is seven years and, therefore,
both the offences are non-bailable and the
Sessions Judge was not justified in holding that
the said offences are bailable.
10. A Division Bench of this court also had an occasion to
deal with this issue in the case of Mahesh Shivram Puthran V. The
Commissioner of Police, Thane, Dist. Thane and others; reported
in 2011 SCC OnLine Bom 389. In that case the court was
considering whether offences under sections 43 and 52 of the
M.R.T.P. Act, 1966 were cognizable or non cognizable. In that
context, the division bench referred to sub section 2 of section 4
and section 5 of Cr.p.c. The relevant discussion can be found in
paragraph Nos.12 and 13, which are as follows:-
12. The Act, by itself, does not provide whether the
said offence is cognizable or bailable. For that, we
have to refer to Section 4 of the Criminal Procedure
Code. The same reads thus:
“4. Trial of offences under the Penal
Code, 1860 and other laws.
(1) All offences under the Penal Code,
1860 shall be Investigated, inquired into, tried, and
otherwise dealt with according to the provisions
hereinafter contained
(2) All offences under any other law
shall be investigated, inquired into, tried, and
otherwise dealt with according to the same
provisions, but subject to any enactment for the
time being in force regulating the manner or place
of investigating, inquiring into trying or otherwise
dealing with such offences." (emphasis supplied)
Sub-section (1) refers to offences under
the Penal Code, 1860. This provision has no
application to the case on hand. However, subsection
(2) refers to all offences under any other
law which would include the offences punishable
under the said Act of 1966. In other words, offences
under the provisions of the Act of 1966 can be
investigated, enquired into, tried and otherwise
dealt with according to the same provisions, but
subject to any enactment for the time being in force
regulating the manner or place of investigating,
enquiring into, trying or otherwise dealing with
such offences. We have already alluded to the
provisions of the Act of 1966, which provide for
mechanism to institute prosecution for offences
punishable under the said Act and Rules made
thereunder. Accordingly, the said provisions would
prevail, being special enactment.
13. Besides, it may be useful to refer to Section 5 of
the Code, which reads thus:-
"Saving. – Nothing contained in this
Code shall, in the absence of a specific provision to
the contrary, affect any special or local law for the
time being in force, or any special jurisdiction or
power conferred or any special form of procedure
prescribed by any other law for the time being in
force." (emphasis supplied)
In Paragraph 14 the Division Bench recorded it’s
conclusion thus:
“As the maximum punishment provided
in terms of Section 52 of the Act, which has been
applied to the case on hand, being up to three
years, at best, the second category of cases specified
in Part II of Schedule I would be attracted. It would
necessarily follow that the offence under Section 52
of the Act is a cognizable and non-bailable offence.”
11. Recently, a Division Bench of the Rajasthan High Court
has also taken a similar view in the case of Nathu Ram S/o Purna
Ram Versus The State of Rajasthan reported in D. B. Cri. Ref.
No.1/2020. A specific question for reference posed before the
division bench of Rajasthan High Court was as follows:-
“What would be the nature of an offence (whether
cognizable or non-cognizable) for which
imprisonment “may extend to three years” is
provided and no stipulation is made in the statute
regarding it being cognizable or non-cognizable.”
After discussion the division bench answered the
reference in paragraph No.25 which reads thus:-
“25. Accordingly, the reference is answered in
terms that unless otherwise provided under the
relevant statute, the offences under the laws other
than IPC punishable with imprisonment to the
extent of three years, shall fall within the
classification II of offences classified under Part II
of First Schedule and thus, shall be cognizable and
non-bailable.”
12. 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;”
13. Thus, the next relevant sections would be sub section 2
of section 4 and section 5 of the Cr.p.c. as they are referred to by
the Division Bench of this court in the case of Mahesh Shivram
Puthran (supra). Part II of the Schedule-I reads thus:-
II – CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS
Offence Cognizable or noncognizable
Bailable or nonbailable
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.
14. Bare reading of this Part II of the Schedule -I of Cr.p.c.
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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. The application is rejected.
23. Before parting with the order, it is necessary to record
appreciation for the assistance rendered by all the learned counsel.
(SARANG V. KOTWAL, J.)
24. 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.
(SARANG V. KOTWAL, J.)
No comments:
Post a Comment