Bombay High Court noted that the infringement offences under Section 63 of the Copyright Act and Section 103 of the Trademark Act which attracts imprisonment up to three years or exact three years are non-bailable in nature.
The question “whether the offences under Section 103 of TM Act and Section 63 of Copyright Act are punishable with up to three years imprisonment were bailable or non-bailable” became a topic of discussion when raised by Justice Sarang Kotwal.
The court considered the fact that these offences which are not mentioned in the Indian Penal Code but attract imprisonment up to three years are bailable or non-bailable. At last, it was held that these are non-bailable offences.
Advocate Mader Soman who was appearing for the petitioner seeking interim protection against the arrest contended before the court that the other accused in the case had already got bail on the grounds that Section 428 (heating with knowledge of wrongful loss to person he ought to protect) of the Indian Penal Code which attracts imprisonment up to three years is bailable. He sought relief on the grounds of parity submitting that the offences under the Copyright Act and Trademark Act are bailable.
The bench heard all the submissions made by the prosecutor and amicus curiae in the matter, Aniket Nikam. Citing several courts’ rulings, Nikam submitted that the offences which can attract punishment up to three years are non-bailable. He also contended that even the Criminal Procedure Code classification of offences signifies that the offences which may attract imprisonment up to three years will be non-bailable in nature while offences, where the punishment can be less than three years, are bailable.
Taking note of the previous judgments and the criminal law provisions, the court held, “Bare reading of Party II of schedule I of CrPC 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.”
“Wherever it is possible to impose the punishment extending to three years, this category would apply, because in such offences it is possible to impose a sentence of exact three years. In such cases, offences will be non-bailable,” said Justice Kotwal. He also stated that the custodial investigation is necessary in the following matter.
The court also stated, “certainly there appears an infringement of the trademark registered in the name of the informant’s company. The accused have falsely applied the informant’s trademark to his products and have attempted to sell those products. Thus, the act of the accused also amounts to offence under Section 420 (Cheating).”
The court, thereafter, rejected the plea of the accused as well as the advocate’s plea seeking interim protection.
As per the classification under CrPC, when an offence is punishable with death, life imprisonment, or over seven years, it is cognizable, non-bailable, and triable by the sessions courts. Similar is the classification for the offences which attracts imprisonment up to 3 years and upwards but not more than 7 years.
Offences punishable with imprisonment less than 3 years or fine only are non-cognizable, bailable, and triable by any magistrate.
Bailable offences are those where police can itself release the accused on bail while in non-bailable offences, the bail can be granted over the directions of court.
