Non IPC offences with imprisonment that can be extended more than 3- years are non-bailable: High Court of Bombay
If the offences in the other laws i.e. other than IPC are punishable with imprisonment for three years and upwards then the offences are cognizable and non bailable according to Part II of the Schedule -I of CrPC .This was decided in the case of Piyush Subhashbhai Ranipa vs. State of Maharashtra [Anticipiatory Bail Appl No. 336 OF 2021] by the Hon’ble Judge Sarang V. Kotwal in the High Court of Bombay. The facts of the case are that an FIR was lodged by the Zonal Manager of a company named Jain Irrigation system against another company- TERA flow,  which was using trademark ‘Jain HDPE’ and selling goods in the name of the complainant company. The stamps of Certificate of Manufacturing License were also forged and the police seized that good and thereafter began its investigation in the matter. This petition was filed seeking anticipatory bail in connection with the FIR filed. The legal questions involved in this case are quite few. Firstly, the major question involved was whether the offence under Section 63 of Copyright Act and Section 103 of Trademarks act were bailable or non-bailable. To decide upon this, the court referred the concerned provisions.                                                                               Thereafter it heard the contentions put forth by the parties, where the applicant’s counsel stated that looking at the scheme of Copyright Act and Trade Marks Act, it shows that the offences are bailable. Whereas, the counsel for respondent stated that this issue is no longer res integra and courts have time and again stated that offences in which punishment can extend up to 3 years are non bailable offences. The court referred to a series of judgements one notable being the case of State of Maharashtra Vs. Shri. Suresh Ganpatrao Kenjale [1995 CrilL 2478] where it was held” 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”. CrPC laws can be used to offences for statutes other than IPC to decide whether an offence is bailable or not an unless otherwise provided under the relevant statute, the offences other than IPC are punishable with imprisonment to the extent of three years, and shall fall within the classification II of offences as classified under Part II of First Schedule. Thus, offences under the Copyright Act and Trademark Act shall be cognizable and non-bailable. After applying this to the facts of the case, it was observed that the accused have falsely applied the informant’s trademark to their own products and have attempted to sell those products. 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.
 on 03 03 2021 on 03 03 : 1 : 04 aba 336 21.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONANTICIPATORY BAIL APPLICATION NO. 336 OF 2021Piyush Subhashbhai Ranipa.... Applicant VersusThe State of Maharashtra.... Respondent______Mr. Mandar Soman for Applicant.Mr. Ajay Patil APP for State Respondent.Mr. Aniket Nikam as amicus Curiae. ______CORAM: SARANG V. KOTWAL J.DATE: 26th FEBRUARY 2021P.C. :1.The Applicant is seeking anticipatory bail in connectionwith C.R.No. 8620 registered with Mohol Police Station Solapur District Solapur under sections 418 465 482 483 485 486 488 r w. 34 of the Indian Penal Codeandunder section 63 of the Copyright Act 1957. Subsequently section103 of the Trade Marks Act 1999 is also applied. 2.The First Information ReportisGokhale on 03 03 2021 on 03 03 : 2 : 04 aba 336 21.odtlodged by one Prakash Gore. He was a Zonal Manager of JainIrrigation System. His company received complaints thatsubstandard goods in the name of their company were sold in themarket. The informant received a secret information that oneEicher truck bearing No.GJ03 BV 9840 was carrying goods in thename of the complainant’s company which actually were notgenuine goods. That vehicle had started from Gujarat and wasgoing towards Karnataka. On 19 12 2020 at about 4:00p.m. theinformant and his associates saw that vehicle. They made inquirieswith the driver Jeevan about the goods. He informed that thegoods were loaded from Tera flow company Ribda and he wasgoing to Chadchan. He showed invoices. The invoice mentionedfour different HDPE pipes worth Rs.94 485 . The informantphysically saw those goods. He saw that some goods were bearingmark ‘Jain HDPE’ bearing stamp of CML7018761. That stamp was a forged stamp.The goods were being transported and sold using fake trademarkand therefore he lodged this F.I.R. The investigation was carriedout and the goods were seized. on 03 03 2021 on 03 03 : 3 : 04 aba 336 21.odt3.A few legal questions arose while deciding thisapplication. Therefore I have heard Shri. Mandar Soman learnedcounsel for the applicant Shri. Ajay Patil learned APP for theState. Shri. Aniket Nikam learned counsel was requested to assistthe court for deciding a larger issue as to whether offencespunishable upto three years were bailable or non bailable.4.First point for consideration was whether the offenceunder section 63 of the Copyright Act and also subsequentlyapplied section 103 of the Trade Marks Act were bailable or nonbailable. Shri. Soman invited my attention to the order passed bythe learned Magistrate wherein the co accused were granted bailon the ground that section 418 of I.P.C. was bailable and therefore bail was granted to the co accused. Perusal of that ordershows that the learned Magistrate has only referred to section 418of IPC. He has not considered application of section 63 of theCopyright Act and section 103 of the Trade Marks Act. Shri. Somanclaimed parity with co accused in this case. The allegations againstthe applicant are that he was manufacturing all these pipes and athis instance the pipes were being transported and sold. The on 03 03 2021 on 03 03 : 4 : 04 aba 336 21.odtinvestigation papers produced by Shri. Patil before me showedphotographs of those pipes which bore the aforementioned nameand registration number of the trademark of complainant’scompany. Therefore the first question which needs to be addressedand decided is to whether the offence punishable under section 63of the Copyright Act and section 103 of Trade Marks Act arebailable or non bailable. Section 63 of the Copyright Act reads thus: “63 Offence of infringement of copyright or other rights conferred bythis Act Any person who knowingly infringes or abets theinfringement ofthe copyright in a work or(b) any other right conferred by this Act [shall be punishable with imprisonment for a term which shallnot be less than six months but which may extend to three yearsand with fine which shall not be less than fifty thousand rupeesbut which may extend to two lakh rupees: Provided thatthe court may for adequate and special reasons to be mentioned in thejudgment impose a sentence of imprisonment for a term ofless than six months or a fine of less than fifty thousandrupees.]” on 03 03 2021 on 03 03 : 5 : 04 aba 336 21.odtSection 103 of the Trade Marks Act reads thus: “103 Penalty for applying false trade marks trade descriptions etc. Any person who 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 offalsifying 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 countryor place in which they were made or produced or the nameand address of the manufacturer or person for whom thegoods are manufactured is required to be applied undersection 139 a false indication of such country place name oraddress or(f) tampers with alters or effaces an indication of originwhich has been applied to any goods to which it is required tobe applied under section 139 or(g) causes any of the things above mentioned in this section tobe done shall unless he proves that he acted without intentto defraud be punishable with imprisonment for a term whichshall not be less than six months but which may extend tothree years and with fine which shall not be less than fiftythousand rupees but which may extend to two lakh rupees:Provided that the court may for adequate andspecial reasons to be mentioned in the judgment impose a on 03 03 2021 on 03 03 : 6 : 04 aba 336 21.odtsentence of imprisonment for a term of less than six months ora fine of less than fifty thousand rupees.”It can be seen that in both these sections sentence ofimprisonment extending upto three years can be imposed. Thequestion raised by Shri. Soman is whether the offence in whichsentence of imprisonment upto three years can be imposed fallswithin third category of Part II of Schedule I of Cr.p.c. or it fallswithin second category of that Part. Therefore that question needsto be answered first. For that purpose I have heard all the learnedcounsel.5.Shri. Soman submitted that the schedule of Cr.p.c. doesrefer to other laws and can be used to decide whether the offencesin Statutes other than Indian Penal Code are bailable or nonbailable. He submitted that the schedule of Cr.p.c. can be appliedto other Acts keeping in mind object and reasons of thatparticular Act. He submitted that looking at the scheme ofCopyright Act and Trade Marks Act it shows that the offences arebailable. 6.As against this Shri. Nikam and Shri. Patil submittedthat this issue is no more res integra and different courts on 03 03 2021 on 03 03 : 7 : 04 aba 336 21.odtincluding a Division bench of this court have held that the offencesin which punishment can extend upto 3 years are non bailableoffences. 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 thiscourt passed in the case of Ramrao Marotrao Budruk Vs. The Stateof Maharashtra and another reported in 1994 SCC OnLine Bom407 . In that case the court was deciding whether section 2 of thePrevention of Insults to National Honour Act 1971 makes offenceunder that Act bailable or non bailable. In that context paragraph Nos.3 and 8 of that Judgment are important. Those twoparagraphs are reproduced as follows: “3. Section 2 of the Prevention of Insults to NationalHonour Act 1971runs thus:“whoever in any public place or in any other placewithin public view burns mutilates …. or otherwisebrings into contemptthe Indian NationalFlag or the Constitution of India or any part thereof on 03 03 2021 on 03 03 : 8 : 04 aba 336 21.odtshall be punished with imprisonment for a termwhich may extend to three years or with fine orwith both. . .8. Section 2 of the Act empowers the Court tosentence an accused upto 3 years and it is amaximum sentence but permissible. Therefore itmakes no difference by the fact that theimprisonment for such an offence can also be lessthan 3 years. To put in figures for an offence undersection 2 of the Act the imprisonment for 2 yearsand 365 days can be inflicted or ever less than that.As such it would be an offence punishable withimprisonment for 3 years which would make it as anon bailable one. If the punishment is upto 2 yearsand 364 days it would be an offence punishablewith imprisonment for less than 3 years so as tomake it a bailable on under category No.3 of thesaid classification. If the offence therefore fallswithin the corners of category No.2 of the saidclassification an application under section 438 Cr.P.C. for a relief anticipatory bail would bemaintainable as the offence would be a non bailableone. The learned 2nd Additional Sessions Judge on 03 03 2021 on 03 03 : 9 : 04 aba 336 21.odttherefore committed an error in treating the offenceunder section 2 of the Act as a bailable one.”9.Similar view was expressed by another single Judge ofthis court in the case of State of Maharashtra Vs. Shri. SureshGanpatrao Kenjale reported in 1995 CriLJ 2478. The relevantparagraph No.3 in that judgment is reproduced as follows: “3. The Sessions Judge Bhandara while rejectingthe application for police custody observed that forthe offence under S. 7 of the P.C. Act theimprisonment prescribed is not less than sixmonths but that may extend to five years and forthe offence under S. 13(1)(d) r w S. 13(2) of theP.C. Act the minimum imprisonment is one yearand it may extend to seven years and thusconcluded that the said offences are punishablewith imprisonment for less than three years andtherefore they are bailable offences and the policecustody remand cannot be ordered. The reasoninggiven by the Sessions Judge on its face appears tobe fallacious. He has not properly construed thepunishment prescribed under S. 7 as well as underS. 13(1)(d) r w 13(2) of the Prevention ofCorruption Act and in the light of Schedule II of on 03 03 2021 on 03 03 : 10 : 04 aba 336 21.odtthe Code of Criminal Procedure 1973 makingclassification of offences against other laws. Forthe offence under S. 7 of the P.C. Act it is providedthat the said offence shall be punishable withimprisonment which shall not be less than sixmonths which may extend to five years and shallalso be liable to fine. This means that themaximum punishment for an offence under S. 7 ofthe P.C. Act is five years. Similarly for the offenceunder S. 13(1)(d) of the P.C. Act it is providedthat the said offence shall be punishable underSub sectionof S. 13 with imprisonment uptoseven years. In the Second Schedule of the Code ofCriminal Procedure 1973 making classification ofoffences against other laws it is provided that theoffences which are punishable with imprisonmentfor three year and upwards but not more thanseven years are non bailable. By no stretch ofimagination can it be said that the offences underSs. 7 and 13(1)(d)r w. S. 13(2) of the P.C. Act arenot punishable with imprisonment of three yearsand upwards but not more than seven years. Whileconstruing whether an offence is bailable or non bailable it is not the minimum sentence which canbe awarded under the law is required to be seen1 on 03 03 2021 on 03 03 : 11 : 04 aba 336 21.odtbut the maximum sentence which can be awardedunder the law has to be seen and the maximumsentence awardable under S.7 of the P.C. Act is fiveyears and for the offence under S. 13(1)(d) as isprovided in S. 13(2) is seven years and therefore both the offences are non bailable and theSessions Judge was not justified in holding thatthe said offences are bailable. 10.A Division Bench of this court also had an occasion todeal with this issue in the case of Mahesh Shivram Puthran V. TheCommissioner of Police Thane Dist. Thane and others reportedin 2011 SCC OnLine Bom 389. In that case the court wasconsidering whether offences under sections 43 and 52 of theM.R.T.P. Act 1966 were cognizable or non cognizable. In thatcontext the division bench referred to sub section 2 of section 4and section 5 of Cr.p.c. The relevant discussion can be found inparagraph Nos.12 and 13 which are as follows: 12. The Act by itself does not provide whether thesaid offence is cognizable or bailable. For that wehave to refer to Section 4 of the Criminal ProcedureCode. The same reads thus:1 on 03 03 2021 on 03 03 : 12 : 04 aba 336 21.odt“4. Trial of offences under the PenalCode 1860 and other laws.(1) All offences under the Penal Code 1860 shall be Investigated inquired into tried andotherwise dealt with according to the provisionshereinafter containedAll offences under any other lawshall be investigated inquired into tried andotherwise dealt with according to the sameprovisions but subject to any enactment for thetime being in force regulating the manner or placeof investigating inquiring into trying or otherwisedealing with such offences."Sub sectionrefers to offences underthe Penal Code 1860. This provision has noapplication to the case on hand. However sub sectionrefers to all offences under any otherlaw which would include the offences punishableunder the said Act of 1966. In other words offencesunder the provisions of the Act of 1966 can beinvestigated enquired into tried and otherwisedealt with according to the same provisions butsubject to any enactment for the time being in forceregulating the manner or place of investigating enquiring into trying or otherwise dealing with1 on 03 03 2021 on 03 03 : 13 : 04 aba 336 21.odtsuch offences. We have already alluded to theprovisions of the Act of 1966 which provide formechanism to institute prosecution for offencespunishable under the said Act and Rules madethereunder. Accordingly the said provisions wouldprevail being special enactment. 13. Besides it may be useful to refer to Section 5 ofthe Code which reads thus: "Saving. Nothing contained in thisCode shall in the absence of a specific provision tothe contrary affect any special or local law for thetime being in force or any special jurisdiction orpower conferred or any special form of procedureprescribed by any other law for the time being inforce."In Paragraph 14 the Division Bench recorded it’sconclusion thus:“As the maximum punishment providedin terms of Section 52 of the Act which has beenapplied to the case on hand being up to threeyears at best the second category of cases specifiedin Part II of Schedule I would be attracted. It wouldnecessarily follow that the offence under Section 52of the Act is a cognizable and non bailable offence.”1 on 03 03 2021 on 03 03 : 14 : 04 aba 336 21.odt11.Recently a Division Bench of the Rajasthan High Courthas also taken a similar view in the case of Nathu Ram S o PurnaRam Versus The State of Rajasthan reported in D. B. Cri. Ref.No.1 2020. A specific question for reference posed before thedivision bench of Rajasthan High Court was as follows: “What would be the nature of an offencefor whichimprisonment “may extend to three years” isprovided and no stipulation is made in the statuteregarding it being cognizable or non cognizable.”After discussion the division bench answered thereference in paragraph No.25 which reads thus: “25. Accordingly the reference is answered interms that unless otherwise provided under therelevant statute the offences under the laws otherthan IPC punishable with imprisonment to theextent of three years shall fall within theclassification II of offences classified under Part IIof First Schedule and thus shall be cognizable andnon bailable.”1 on 03 03 2021 on 03 03 : 15 : 04 aba 336 21.odt12.The question whether the offence is bailable or nothas to be seen in the light of definition of bailable offence providedunder section 2(a) of the Cr.p.c. which reads thus:“2. Definitions“bailable offence” means an offence which isshown as bailable in the First Schedue or which ismade bailable by any other law for the time beingin force and “non bailable offence” means anyother offence ”13.Thus the next relevant sections would be sub section 2of section 4 and section 5 of the Cr.p.c. as they are referred to bythe Division Bench of this court in the case of Mahesh ShivramPuthranAny police officer not below the rank of deputysuperintendent of police or equivalent may if he issatisfied that any of the offences referred to in sub sectionhas been is being or is likely to be committed search and seize without warrant thegoods die block machine plate otherinstruments or things involved in committing theoffence wherever found and all the articles soseized shall as soon as practicable be producedbefore a Judicial Magistrate of the first class orMetropolitan Magistrate as the case may be:1 on 03 03 2021 on 03 03 : 18 : 04 aba 336 21.odtProvided that the police officer beforemaking any search and seizure shall obtain theopinion of the Registrar on facts involved in theoffence relating to trade mark and shall abide bythe opinion so obtained.17.Shri. Soman in support of his contention relied on thejudgment of division bench of this court in the case of Anant s o.Tukaram Teke & Ors. Vs. The State of Maharashtra & Anr. decidedby the Aurangabad Bench of this court in Criminal ApplicationNO.14713. In that case according to Shri. Soman the divisionbench had held that the provision of sub section 4 of section 115 ofthe Act are mandatory in nature. He submitted that in the presentcase the opinion of the Registrar is not obtained. 18.Learned APP on the other hand submitted that this isnot a case where the accused had tried to use a trademark whichwas similar in nature to the one registered in favour of theinformant’s company but they had actually used the sametrademark with the same number which was allotted to the firstinformant. He submitted that the applicant does not have any1 on 03 03 2021 on 03 03 : 19 : 04 aba 336 21.odtauthority to manufacture such goods and pass them off as thegoods manufactured by the informant’s company. He submittedthat the accused have attempted to sell their own products in themarket whose standard is questionable. The consumers were led tobelieve that the products were manufactured by the informant’scompany.19.I have considered these submissions. The Judgment ofAnant Tekerelied on by Shri. Soman will have to be readin the light of the facts mentioned in that case. The informant’scase therein was that the accused were in the similar business asthat of the informant i.e. business of selling tea packets. The packof the tea which accused was selling was deceptively similar to thepack of the complainant. In that case the Deputy Superintendent ofPolice of Beed visited factory of the accused and took action basedon the information that the accused were preparing their packetsin their factory situated at MIDC. After that the police inspector ofBeed raided some shop premises and seized tea packets of theaccused. The Police Inspector seized the machinery of the accusedand Deputy Superintendent of Police had sent a letter to the1 on 03 03 2021 on 03 03 : 20 : 04 aba 336 21.odtRegistrar of Trade Marks seeking opinion under section 115(4) ofthe Act. The division bench found fault with this procedure. It washeld in paragraphs 18 and 23 that in the relevant facts and theprovisions of the Copyright Act and Trade Marks Act the courtneeded to go with the presumption that the compliance ofprovision of section 115 of the Act was mandatory. In paragraph26 of the Judgment it was mentioned that there was a certificatein favour of the accused under Copyright Act and due to suchcertificate act of the accused in these circumstances did notamount to any offence under sections 102 to 104 and 105 of theTrade Marks Act 1999. This is a distinguishing feature in this case. Theapplicant has not claimed that he has any certificate registeredunder the Copyright Act mentioning the informant’s product andtrademark registration number. Therefore benefit of section110(b) of the Trade Marks Act is not available to the applicant inthis case. In the present case there was no question of seekingopinion of the Registrar for Trademarks because accused in thiscase had not used a mark where there was a possibility of2 on 03 03 2021 on 03 03 : 21 : 04 aba 336 21.odtsimilarity but they had gone ahead and used the very sametrademark with the very same number under which the trademarkwas registered in favour of the informant’s company. Moreover atthe time of registration of F.I.R. the goods in question were alreadytaken in custody. It was not a result of a fresh search and seizureafter 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 CopyrightAct attracting punishment under section 63 of the Act is a matterof investigation but certainly there appears to be infringement ofthe trademark registered in the name of the informant’s company.Therefore commission of offence punishable under section 103 ofthe Trade Marks Act is clearly made out. The accused have falselyapplied the informant’s trademark to their own products and haveattempted to sell those products. Thus the act of the accused alsoamounts to offence under section 420 r w. 511 of the IPC. By theiract the public were induced or an attempt was made to induce thepublic to buy these products under the impression that they weremanufactured by the informant’s company.2 on 03 03 2021 on 03 03 : 22 : 04 aba 336 21.odt21.In the present case there is also a statement of co accused which shows active involvement of the present applicantand it was mentioned that the goods were given by the applicantand they were manufactured at his unit. In this view of the matter custodial interrogation of the applicant is necessary. No relief ofanticipatory bail can be granted.22.The application is rejected. 23.Before parting with the order it is necessary to recordappreciation for the assistance rendered by all the learned counsel.(SARANG V. KOTWAL J.)24.At this stage Shri. Soman submitted that the interimrelief granted earlier be continued for a period of two weeks.However considering that already few months have passed andinvestigation needs to progress further such request is rejected. (SARANG V. KOTWAL J.)2 