ISSUES RAISED

Whether the offences under Section 63 of Copyright Act and Section 103 of Trade Marks Act, both of which are punishable with imprisonment which may extend to three years, were bailable or non-bailable?

JUDGMENT

The court noted that offences punishable for up to three years would be non-bailable, considering the recent judgment dated 19th February 2021 of the Division Bench of Rajasthan High Court in the case of Nathu Ram v. The State of Rajasthan, which held that such offenses are non-bailable.

This decision was based on the view that in such cases, a sentence of exactly three years could be imposed. As a result, the Court determined that the offenses under Sections 63 of the Copyright Act and 103 of the Trade Marks Act are non-bailable offences. The Court in regards to the facts of the case, denied the Applicant's request for anticipatory bail under Section 103 of the Trade Marks Act.

RATIO DECIDENDI

Prior to determining if anticipatory bail can be granted or not, the Court considered the issue of maintainability of Piyush Ranipa's (Applicant) anticipatory bail application, which was filed under Section 63 of the Copyright Act, 1967, and Section 103 of the Trademarks Act, 1999 and IFPG. Consequently, it first considered the larger issue as to whether offences punishable up to three years were bailable or non bailable.

While granting bail to Ranipa's co-accused, Justice Kotwal noted that the Magistrate had not considered the application of the Copyright Act and Trademarks Act sections (whether the sections were bailable or not). As a result, the court assigned an amicus curiae to assist in the case. Amicus Aniket Nikam and Prosecutor Ajay Patil cited several decisions to demonstrate that the issue had already been resolved in the past and that it was no longer res-integra, and that various courts, including this court's Division Bench, had maintained that the offenses for which the punishment can extend up to three years are non-bailable. The relevant parts are sub section 2 of section 4 and section 5 of the Cr.P.C. A simple reading of Part ll of the Schedule-I of the Cr.P.C reveals that if the offences of other statutes are punishable by imprisonment for three years or more, the offences are cognizable and not bailable. 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.

However, subsection 4 of Section 115 of the Trade Marks Act, 1999, according to Shri. Soman (Advocate appearing for the applicant), forbids investigation by any officer below the rank of Deputy Superintendent of Police. He also cited the same provision, claiming that before conducting any search or seizure, the police officer must obtain the Registrar's opinion on the facts involved in the trade mark offense and must obey that opinion. 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. v. 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.

On the other hand, learned APP argued that the accused had not attempted to use a trademark that was similar in nature to the one registered in favor of the informant's business, but had instead used the same trademark with the same number that was assigned to the first informant. He claimed that the applicant lacked the authority to manufacture such products and pass them off as those produced by the informant's firm. He claimed that the defendants tried to sell their own goods on the market, which he claimed were of dubious quality. Consumers were led to think that the goods were made by the informant's business. There was no need to seek the opinion of the Registrar of Trademarks because the defendants in this case had not used a mark with a potential for resemblance, but had instead used the exact same trademark with the exact same number that had been registered in favor of the informant's business. Furthermore, the goods in question had already been taken into custody at the time of F.I.R. registration. It was not the result of a fresh search and arrest. As a result, the findings in Anant Teke (supra) are not relevant to the present case.

Therefore, as a result, it was determined that the accused had flagrantly violated trademark and copyright clauses, as well as cheated by having substandard products manufactured and inducing people to purchase them by passing them off as those of a reputable corporation. As a result, his custodial interrogation was required, and his anticipatory bail application was denied considering section 63 of the Copyright Act, 1957 and Section 103 of the Trade Marks Act as non-bailable offences.