DATE OF JUDGEMENT: 26th Feb, 2021
JUDGES: Hon’ble Mr. Justice Sarang V Kotwal
PARTIES: Piyush Subhashbhai Ranipa (Plaintiff)
The State of Maharashtra. (Respondent)
SUBJECT: The Bombay High Court has held that offences under laws other than Indian Penal Code (IPC) which are punishable with imprisonment of 3 years or more are cognizable and non-bailable. To further elaborate offences under laws other than IPC which has a maximum punishment of less than 3 years will only be non-cognizable and bailable. The judgment was rendered by Justice Sarang V Kotwal in a case relating to grant of anticipatory bail for offences under intellectual property laws and IPC.
AN OVERVIEW
(i) In the suit, 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.
(ii) Shri. Soman (Advocate appearing for the applicant) submitted that the looking at the scheme of Copyright Act and Trade Marks Act, it shows that the offences are bailable
(iii) That Ranipa had not used a similar trademark but the same trademark with the same number.
(iv) He attempted to sell their own products in the market whose standard was questionable and the consumers were led to believe it was the informant’s company.
(v) The Court stated that the copyright infringement was a matter of investigation and prima facie there appeared to be an infringement of trademark by Ranipa.
(vi) Consequenlty, deemed that custodial interrogation would be necessary considering the statement of the co-accused which showed active involvement of Ranipa and hence refused to grant anticipatory bail.
IMPORTANT PROVISIONS
Crinimal Procedure Code
- Section 2(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.
Trade Mark Act
- 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 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.
ISSUES
Before deciding as to whether anticipatory bail can be granted or not, the Court was required to decide on the maintainability of the application. Hence it first considered the larger issue as to whether offences punishable upto three years were bailable or non bailable.
The legal question which the Court framed was whether offences in which sentence of imprisonment upto three years can be imposed, fall within second or third category of Part II of Schedule I of Code of Criminal Procedur
ANALYSIS OF THE JUDGEMENT
1. The Court was considering the question of maintainability of the anticipatory bail application of one Piyush Ranipa, accused of infringement of offences under Section 63 of the Copyright Act, 1967 and Section 103 of the Trademarks Act, 1999 and IPC. Both provisions are punishable with a maximum imprisonment of upto 3 years.
2. The First information Report (FIR) against Ranipa was registered after the Zonal Manager of a company, Jain Irrigation Systems received complaints that substandard goods were being sold in the market under the name of their company.
3. Through secret information, it was discovered that the accused’s truck was carrying goods bearing the same mark of manufacturing license as the complainant’s company.
4. Offences under Trade Marks Act and Copyright Act, Ranipa was charged for offences under Sections 418 (cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect), 465 (forgery), 482 (using false property mark), 485 (making or possession of any instrument for counterfeiting a property mark) and 486 (selling goods marked with a counterfeit property mark) of the Indian Penal Code (IPC).
5. Prior to deciding as to whether anticipatory bail can be granted or not, the Court was required to decide on the maintainability of the application. Consequently, it first considered the larger issue as to whether offences punishable upto three years were bailable or non bailable.
6. Justice Kotwal observed that the Magistrate had not considered the application of the Copyright Act and Trademarks act sections (whether the sections were bailable or not) while granting bail to Ranipa's co-accused. The court, therefore, appointed an amicus-curiae in the case to assist the court.
7. Amicus Aniket Nikam and Prosecutor Ajay Patil, relied on several judgments to show that the issue at hand was already settled in the past and it was 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 ye ars are non-bailable offences."
8. Relevant sections would be sub section 2 of section 4 and section 5 of the Cr.p.c. were looked upon and 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.
9. Consequently, 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.
10. Shri. Soman (Advocate appearing for the applicant) 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.
11. 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., 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.
12. 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.
13. 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 ofsimilarity 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.
CONCLUSION
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. There is also a statement of co-accused 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. Consequently, the application was rejected by the Court.
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