COPY RIGHT
Arvind Singh Chauhan
(Querist) 25 February 2010
This query is : Resolved
Offence under SEC and 65 of Copy right act is bailable or non bailable. I am confused please help.
N RAMESH.
(Expert) 26 February 2010
Arvind,
If the punishment prescribed is less than three years, the offence is bailable.
Refer, Part -II CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS, under Schedule I of Cr.P.C
Under sec.65 of Copyright Act, the punishment prescribed is "imprisonment which may extend to two years...."
Hence the offence is BAILABLE.
Arvind Singh Chauhan
(Querist) 26 February 2010
Respected Raj and Ramesh Sir!
The language of Sec -63 says "Which may extend to 3 years" .
whether it means "less than three years" or "three years" for the purpose of bail?
Is there any citation to clarifying such situation, please guide.
Sanjeev Panda
(Expert) 26 February 2010
I agree with Mr. Makkad and my self have dealt with the cases of copyright. The offence u/s 63 is non bailable in Delhi. There is difference of opinion among different High Courts on the issue whether offence u/s 63 Copyright Act is bailable or non bailable. While the High Court of Gauhati in Jitendra Prasad Singh v. State of Assam 2003 (26) PTC 486 (Gau). held that it is non bailable, there is one judgment of Andhra Pradesh High Court, which is AMARNATH VYAS v. STATE OF A. P. (2007CriLJ2025)in which the Hon'ble court in para 12 has clearly held that Therefore, 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 'non-bailable' one.
In the Delhi however, the offence is non bailable but I agree with the principle explained in the Amarnath Vyas Judgment which gave its reasoning based on the judgment of the Apex Court in Rajeev Chaudhary's case 2001 Cri LJ 2941. The Judgment of Amarnath Vyas pronounced by Andhra High Court is with reason and if you read it with the Apex Court judgment and 1st Schdule to the Cr.P.C., it would become clear that offence u/s 63 is bailable.
Sanjeev Panda
(Expert) 26 February 2010
Mr. Arvind,
You refer to the judgment of AMARNATH VYAS v. STATE OF A. P. (2007CriLJ2025)only, it will calrify all your queries. But this judgment is applicable in Andhra Pradesh state. Other High Courts may rely or not rely on this judgment. But I agree with the reasoning given in the said judgment.
Arvind Singh Chauhan
(Querist) 26 February 2010
Thanks Sanjeev Sir can you please attach this judgment. I am unable to find this judgment because I am practicing in out lying court, where no facilities are available. I have searched in net but could not find. Please paste the link if you have.
Sanjeev Panda
(Expert) 27 February 2010
I do not have the copy of the judgment but I am giving you the link of a very nice article on the subject published in Journal of Intellectual Property Rights in which the case of Amarnath Vyas is discussed in detail. The link is nopr.niscair.res.in/bitstream/.../1/JIPR%2013(6)%20583-589.pdf
Sanjeev Panda
(Expert) 27 February 2010
In the case of Amarnath Vyas, the question before the Andhra Pradesh High Court was whether the offence punishable under Section 63 of the Copyright Act providing for imprisonment for a term which shall not be less six months but which may extend to three years with prescribed fine is bailable offence? The Court analyzed the contentious provision of the Copyright Act with that of the Code in juxtaposition. The Court found that the expression "punishment for a term which may extend to three years" under Copyright Act is certainly not similar to the expression "punishment for three years and upwards" of the Code and relied on the findings of Rajeev Chaudhury case and held that "there may be certain other class of offences which may fall in between classification II and classification III of Part-II of First Schedule. Merely because they are not coming squarely within the domain of classification-III, they cannot automatically be treated as included in the classification-II. By default, they cannot be considered as coming within the purview of the classification-II"
However, please note the differing view of Kerla High Court in the case of Sureshkumar Vs The Sub Inspector of Police [2007 (3) KLT 363], in which Kerla High Court held that offence under Section 63 of the Copyright Act undoubtfully falls under Part II of the First Schedule making them non-bailable offence.
N RAMESH.
(Expert) 28 February 2010
The query is about offence under "section 65"
NOT SECTION 63.
