S.

S KHANNA GIRLS’ DEGREE COLLEGE

CENTRE OF LEGAL STUDIES

(UNIVERSITY OF ALLAHABAD)

NAME: SMITA PANDEY

SEMESTER: IX

SUBJECT: COPYRIGHT LAW

TOPIC: COGNIZANCE OF OFFENCES UNDER SECTION 63 OF COPYRIGHT ACT, 1957

ROLL NO: 52

SUBMMITTED TO:

MR. PRATYUSH PANDEY

 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher MR. PRATYUSH PANDEY as
well as our principal MRS. LALIMA SINGH who gave me the golden opportunity to do this
wonderful project on the topic of COGNIZANCE OF OFFENCES UNDER SECTION 63 OF
COPYRIGHT ACT, 1957, which also helped me in doing a lot of research and I come to know about
so many new things, I am really thankful to them. Further I would like to thank the library of
CENTRE OF LEGAL STUDIED (SS. KHANNA GILRS’ DEGREE COLLEGE) which helped me a
lot in the research this project within the limited time frame.
 INTRODUCTION

Copyright is an aspect of intellectual property which has assumed great importance in this
modern day and age, as the advent of the internet and ease of electronic communication has
made protection of copyrighted works and enforcement of rights more challenging than ever
before. The global economy is dependent on the creation and distribution of intellectual
property (IP), be it copyrights, patents, designs or trademarks. It is not a stretch to say that
Intellectual Property shapes the world and our perception thereof in many ways. While the
value and worth of intellectual property has indeed skyrocketed over the years, so has the
resultant issues with respect thereto. Specifically, infringement of one's IP has always been a
constant part of this, resulting in significant loss to authors, inventors, creators, owners and
businesses, and deception and financial disadvantage to the consumer. It is because of these
reasons, the legislature has made the acts of infringement of IP rights to be an offence and
provided for statutory penalties and imprisonment in addition to being a civil wrong, thus
emphasizing upon the importance of copyright.

Often, IP owners have to take a conscious decision whether to opt for a civil or criminal
action, or both, against infringers, in order to see the deterrent impact upon the infringer and
his racket/channels. IP owners have several questions to be asked about the procedure of a
criminal action including – Whether the Police will even register the FIR or not at the
instance of complainant? Whether the Police will conduct a surprise search and seizure at
the infringer's premises? Whether the accused will be arrested by the Police or not? Whether
the IP owner will be able to compound the offence later, once the matter is settled
amicably? All these questions can be answered by looking into the specific Act/law
governing the offence.

However, before one ventures into looking at the deterrent impact of criminal prosecution for
any offence, let us briefly look at the three classification of offences.

THREE ASPECTS OF ANY CRIMINAL OFFENCE

As per prevalent criminal law in India, offences are covered under the following three heads:
 1. Cognizable and non-cognizable1:

A cognizable offence is an offence wherein, the police can commence investigating the
matter without taking prior permission from a Court, and arrests can also be made without a
warrant. On the other hand, non-cognizable offences require the police to first seek
permission from the Magistrate's Court to commence investigation of the same, and the
police is under no obligation to register a FIR on receiving any complaint alleging offences
that are non-cognizable in nature.

Generally, offences that are grave in nature, for example murder, kidnaping, etc. are
cognizable. The First Schedule of the Criminal Procedure Code (CrPC), 1973, in Part I
provides classification of all offences under the Indian Penal Code (IPC) that are either
cognizable or non-cognizable in nature. Part II of the First Schedule provides classification of
offences against other laws, on the basis of the punishment prescribed under the said Acts, as
under:

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.

2. Bailable and non-bailable2:

A bailable offence is an offence in which, the arrested person can obtain bail as a matter of
right. Whereas, non-bailable are those offences wherein, the decision to release a person on
bail is made by the Courts, based on the facts and circumstances of the case. While
adjudicating upon the issue of granting bail to an individual charged with a non-bailable
offence, Courts take certain important factors in consideration, including but not limited to –
whether the accused is a flight risk; risk of tampering of evidence by the accused once

1
The code of criminal procedure,1973
2
Ibid.
released on bail; whether the prosecution's witnesses would be under any threat from the
accused, etc.

Usually, offences that are cognizable in nature are in turn non-bailable. The First Schedule of
Cr. P.C provides classification whether an offence is bailable or not.

3. Compoundable and non-compoundable3:

The third aspect of a criminal offence is whether it is compoundable or not. Section 320 of
the Cr.P.C provides a list of offences as mentioned in the Indian Penal Code that may be
compounded. Sub-section (9) of Section 320 provides that any offence (under IPC) that is not
covered under Section 320, is by definition not compoundable.

When an offence is compoundable, it means that the complainant can enter into a
compromise with the accused, and have the matter settled in Court. Sub-section (6) of Section
320 provides that the High Court or the Court of Sessions under Section 401 of Cr.P.C, may
allow any person to compound an offence which such person is competent to compound.

On the other hand, non-compoundable offences are those that cannot be settled through a
compromise between the parties, mainly due to the gravity of the offence. However, the High
Court has ample power under Section 482 of Cr.P.C to quash an FIR and the subsequent
proceedings thereto, for offences that are non-compoundable in nature, provided that the
Court is of the view that if the criminal proceedings continue it will only be a waste of
judicial time and because there is hardly any chance of success of the prosecution1.

The scope of this article is limited to discuss the controversy around the offence under
Section 63 of the Copyright Act, 1957.

OFFENCE UNDER SECTION 63 OF THE COPYRIGHT ACT, 1957

Section 63 4provides that any person who knowingly infringes or abets the infringement of a
copyright that exists in any work, shall be punishable with imprisonment for a term which

3
Ibid
4
The copyright act,1957
shall not be less than six months but which may extend to three years and with a fine, which
shall not be less than fifty thousand rupees but which may extend to two lakh rupees.

It is however, pertinent to point out that when it comes to understand the power of Police to
register a FIR and arrest the accused for an offence under Section 63, the Copyright Act itself
is silent as to whether the offence under this Section is cognizable or not. Therefore, the issue
went for consideration before various High Courts of the country at different point of times,
which have given varied views and decisions on this rather glaring omission.

JUDICIAL PRONOUNCEMENTS ON COGNIZANCE OF OFFENCES VIS-À-VIS

SECTION 63 OF COPYRIGHT ACT

In 2002, while deciding an application for anticipatory bail for offences under Section 63 of
the Act, a single bench of the Hon'ble Gauhati High Court in the case of Jitendra Prasad
Singh V. State of Assam5, held that the expression "punishable with imprisonment for a
term, which may extend to three years", will mean that the imprisonment can be for a term as
long as three years, but the expression, "punishable with imprisonment for less than three
years" will mean that the offence is punishable with imprisonment for a period, which is less
than three years." Therefore, offences under Section 63 of the Act are non-bailable in nature,
and as such an application for anticipatory bail will be maintainable.

The interpretation of the above judgement would be that the offence u/s 63 of the Copyright
Act, would fall under Schedule 1 Part II Entry II, therefore, it would be cognizable and non-
bailable.

In 2006, a similar situation arose before the Hon'ble Andhra Pradesh High Court in the case
of Amarnath Vyas v State of Andhra Pradesh 6, wherein the Court had earlier rejected the
anticipatory bail application of the accused u/s 438 Cr.P.C on the ground that the offence is
bailable. Later, the Public Prosecutor for the state sought reconsideration of the previous
order on the premise that the offence under Section 63 is not a bailable one. The learned
Single Judge took a contrary view and held that "It is trite that the penal provisions shall
have to be construed strictly. True there may be certain other class of offences which may fall
in between classification II and classification III of Second Part of Schedule-I. Merely

5
(2003) 26 PTC 486 GAU
6
(2007) Cri LJ 2025 AP
because they are not coming squarely within the domain of classification- Ill, they, cannot
automatically be treated as included in the classification-II.". "The expression 'imprisonment
for a term which may extend upto three years', in my considered view, would not come
squarely within the expression 'imprisonment for three years and upwards'. Therefore, the
offence punishable under Section 63 of the Act cannot be considered as a non-bailable one."

Speaking on whether offences under Section 63 are cognizable or not, a Single Judge of the
Kerala High Court in cases titled as Sureshkumar S/o Kumaran V. the Sub Inspector of
Police7 and Abdul Sathar vs. Nodal Officer Anti-Piracy Cell 8, while hearing two writ
petitions under Article 226 & 227 of the Constitution, held that since Section 63 of the Act is
punishable with imprisonment for a period of 3 years, there can be no doubt that this falls
under category 2 of Part II of the First Schedule of CRPC, and is consequently cognizable.

In 2013, Hon'ble Ms. Justice Gita Mittal of the Delhi High Court in the case of State vs.
Naresh Kumar Garg9, relied upon the judgment of Hon'ble Supreme Court in the case
of Avinash Bhosale v. Union of India10 , wherein the Supreme Court had observed that an
offence punishable under Section 135(1)(ii) of the Customs Act, 1962 (Act of 1962) would
be bailable since it is punishable with imprisonment for a term 'which may extend to three
years or fine or with both'. The Delhi High Court was of the view that since the punishment
mentioned in both these sections is identical, therefore they can be read in consonance. The
learned Single Judge also relied upon Amarnath Vyas 11 of the Andhra Pradesh High Court.

The Single Judge of Rajasthan High Court in Pintu Dey vs. State of Rajasthan 12, relying
upon Amarnath Vyas13, held that the offences under Sections 63 & 68A of the Copyright
Act being punishable by sentence of imprisonment upto three years, are non-cognizable
offences.

In 2019, Hon'ble Mr. Justice Vibhu Bhakru of the Delhi High Court, while hearing a
quashing petition in the case of Anuragh Sanghi vs. State & Ors. in14, relying upon the

7
2007 3 KLT 36
8
AIR 2007 Ker 212
9
CRL. M.C 3488/2012
10
( 2007) 14 SCC 325
11
Supra 6
12
AIR 2004 SCC
13
Supra 6
14
Cr. L.R. (Raj.) 1291
judgements passed in Avinash Bhosale and Naresh Kumar Garg,held that the offence
under Section 63 of the Copyright Act is not a cognizable offence and quashed the
FIR. Recently, in February 2021, a reference was made to the division bench of the Hon'ble
Rajasthan High Court, Jodhpur Bench in the case of Nathu Ram vs. State of Rajasthan 15to
answer the exact question of law "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/non-
cognizable." The Division Bench considering all the aforesaid judgements and various other
judgements passed by the Hon'ble High Courts and Supreme Court and applying the rule
of 'ex visceribus actus' answered the reference as "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." It has been held that the Single Bench Judgment of Rajasthan High Court in Pintu
Dey, does not lay the correct law.

The reasoning given by the Hon'ble Division Bench of the Rajasthan High Court, Jodhpur
Bench in the case of Nathu Ram, appears to be the most appropriate one. The reliance placed
by the Single bench of the Delhi High Court in the decision of the Hon'ble Supreme Court
passed in Avinash Bhosale which is in the context of an offence under the Customs Act, was
not appropriate. The High Courts have not considered the intention of the legislature behind
making certain acts of IP infringement as criminal offence and increasing the quantum of
punishment as well as statutory penalties by way of amendments. It is pertinent to point out
here that Section 103 of the Trade Marks Act, 1999, which is another legislation for IP
protection and enacted (after repealing The Trade & Merchandise Marks Act, 1958) much
after the Copyright Act, 1957 (amended in 1984), makes the offence under Section 103 of the
Trade Marks Act 'a cognizable offence'.

A specific provision was added in the new Act i.e. Section 115 (3) of the Trade Marks Act,
1999 which provides "that the offences under section 103 or section 104 or section 105
shall be cognizable."

15
AIR 1987,SCC
The wordings of Section 103 of the Trade Marks Act, 1999 with Section 63 of the Copyright
Act, 1957 as well as the quantum of punishment and penalty is similar, and the same is
reproduced as below:

Trade Marks Act, 1999 Copyright Act, 1957

Section 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 Section 63. Offences of infringement of

in his possession, any die, block, machine, copyright or other rights conferred by this

plate or other instrument for the purpose of Act.—Any person who knowingly infringes

falsifying or of being used for falsifying, a or abets the infringement of— (a) the

trade mark; or (d) applies any false trade copyright in a work, or (b) any other right

description to goods or services; or (e) conferred by this Act [except the right

applies to any goods to which an indication conferred by section 53A, [shall be

of the country or place in which they were punishable with imprisonment for a term

made or produced or the name and address of which shall not be less than six months but
the manufacturer or person for whom the which may extend to three years and with

goods are manufactured is required to be fine which shall not be less than fifty

applied under section 139, a false indication thousand rupees but which may extend to

of such country, place, name or address; or two lakh rupees]: Provided that [where the

(f) tampers with, alters or effaces an infringement has not been made for gain in

indication of origin which has been applied the course of trade or business] the court

to any goods to which it is required to be may, for adequate and special reasons to be

applied under section 139; or (g) causes any mentioned in the judgment, impose a

of the things above mentioned in this section sentence of imprisonment for a term of less
to be done, shall, unless he proves that he than six months or a fine of less than fifty

acted, without intent to defraud, be thousand rupees.]

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.

Further, the power given to the Police under Section 64 of the Copyright Act, for conducting
search and seizure at the infringer's premises and produce the seized goods before the
Magistrate, is actually rendered without teeth, unless the Police has the power to register the
FIR and arrest the infringer without a warrant from the Magistrate at the place of offence.

Though the judgement passed by the Hon'ble Division Bench of the Rajasthan High Court
in Nathu Ram could be persuasive upon all the High Court's having bench of coordinate or
less strength, the controversy needs to be authoritatively settled by the Hon'ble Supreme
Court once and for all, or can be settled by suitable amendment in the Act, wherein a specific
provision should be included to make the offence as 'Cognizable' to make it at par with the
Trade Marks Act, 1999.

CAN OFFENCES UNDER SECTION 63 BE SETTLED THROUGH COMPROMISE?

Coming to the third aspect, whether an offence under Section 63 of the Copyright Act is
compoundable or not, the Courts seem to be in unison about the same being non-
compoundable in nature. However, the powers of the High Court under Section 482 Cr.P.C
are ample and wide enough to allow the Court to quash the proceedings arising out of a non-
compoundable offence as well. In the case of B.S. Joshi vs. State of Haryana,16, the Hon'ble
Supreme Court had held that "even though the provisions of Section 320 Cr.P.C would not
apply to such offences which are not compoundable, it did not limit or affect the powers
under Section 482 Cr.P.C., if for the purpose of meeting the ends of justice, quashing of FIR
is necessary."

16
AIR (2003) 4 SCC114
In the case of Devender Bansal & Anr. vs. State (N.C.T. of Delhi) & Anr.17, the Hon'ble
Delhi High Court had held that "notwithstanding the fact that the offence under Section 63 of
the Copyright Act is a non-compoundable offence, there should be no impediment in
quashing the FIR under this section, if the Court is otherwise satisfied that the facts and
circumstances of the case so warrant." The parties in the present case had amicably settled
their issues, and the Court quashed the FIR by referring to the Hon'ble Supreme Court
in Gian Singh vs. State of Punjab, 18, wherein the Apex Court had recognized the need of
amicable resolution of disputes in cases like the instant one.

In the case of Sanjay Kumar Behera & Ors. vs. State (N.C.T. of Delhi) & Anr. the Delhi
High Court had quashed an FIR registered under Sections 52A/63/68A of the Copyright Act,
since the parties had settled their disputes through a settlement agreement. It was pointed out
by the Counsel for the State of NCT of Delhi that offences under Section 63 of the Copyright
Act are non-compoundable in nature. However, since the complainant had resolved its issues
with the accused, the court held that no useful purpose would be served in proceeding with
the trial in this case, and proceeded to quash the FIR.

Furthermore, the Supreme Court in the case of Narinder Singh vs. State of Punjab,19 had
also held that those criminal cases that are having predominantly civil character, particularly
those arising out of commercial transactions or arising out of matrimonial
disputes/relationships, should be quashed when the parties have resolved their entire disputes
among themselves.

We are of the view that this ratio of the Supreme Court will apply squarely on cases
involving IP infringement, whether it is copyright, trade mark, patents etc. since the same are
predominantly civil in nature.

17
AIR 2001, SCC 324
18
(2012) 10 SCC 303
19
(2014) 6 SCC 466
 CONCLUSION

With ongoing litigation, writ petitions, and revisions, the evolution of the Criminalisation of
copyright infringement and Trademark Infringement in India has been gradual. While India’s
Trademark and Copyright rules require refinement, it is heartening to note that progress is
discernible despite a slowdown. The aforementioned instances are significant not because of
the frequency with which they have been cited, but because of the changes, they have
wrought in the law. In legal terms, changes are not necessarily obvious or dramatic, but they
are nonetheless significant, even if they merely restate an important idea. Consequently, it is
essential to study and work towards the growth of the heart of intelligentsia: the Trademark
Law and Copyright Law.