Putting an end to the ambiguity with respect to whether, or not, Section of the Copyright Act, 1957 (the Copyright Act) was cognizable and non-bailable, the Supreme Court in Criminal Appeal No. 807 of 2022 M/s Knit Pro International Versus The State of NCT of Delhi & Anr. clarified that that the said provision is cognizable and non-bailable.

While answering the short question that arose before it, of whether Section 63 was cognizable and bailable or not, the Hon’ble Court took note of Section 63 of the Copyright Act (Section 63) alongwith Part II of the First Schedule of the Cr.P.C.

It was noted that the offence under Section 63 of the Copyright Act, the punishment provided is imprisonment for a term which shall not be less than six months but which may extend to three years and with fine. Therefore, the maximum punishment which can be imposed would be three years and the Magistrate may sentence the accused for a period of three years also.

Whereas Part II of the First Schedule of the Cr.P.C. provides that if an offence is punishable with imprisonment for three years and onwards but not more than seven years – the offence is a cognizable offence. Only in a case where the offence is punishable for imprisonment for less than three years or with fine only the offence can be said to be non-cognizable.

The Court considered the case of Intelligence Officer, Narcotics Control Bureau vs. Sambhu Sonkar, AIR 2001 SC 830, where it held that the maximum term of imprisonment that is prescribed for an offence, cannot be excluded for the purpose of classification of the offence. Therefore, if the Magistrate is empowered to impose a punishment of upto three years- this would qualify the offence to be considered as cognizable in terms of Part II of the Cr.P.C.

Thus, while reading Section 63 of the Copyright Act and Part II of the Cr.P.C. in conjunction, the Supreme Court found that the language of the provision in Part II of First Schedule is very clear and that Section 63 would fall within its ambit making the offence of infringement cognizable and non-bailable.

Further, the Hon’ble Court held that reliance on Rakesh Kumar Paul vs. State of Assam, (2017) 15 SCC 67, by the Respondent, is misplaced as the same has been misinterpreted by the concerned High Court in the impugned order while holding Section 63 to be non-cognizable and bailable.

The decision is significant as various High Courts in the past had held to the contrary, holding Section 63 to be non-cognizable and bailable.

Naomi Chandra, Partner

Naomi Chandra is a Partner at TMT Law Practice. She has been practicing law for over 14 years and has extensive experience in the field of criminal as well as in civil and commercial litigation.

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