This article discusses various judgments on the issue whether an offence whose punishment “may extend to three years” is a bailable / non-cognizable offence or a non-bailable / cognizable offence, with special emphasis on such offence(s) provided under the Copyright Act, 1957 [“Copyright Act”] and the Trade Marks Act, 1999 [“Trade Marks Act”]. Although the discussion herein largely focuses on the judgments delivered in the context of Section 63 of the Copyright Act, the same is (needless to clarify) extendable to other such offences provided under the Copyright Act, the Trade Marks Act, and other statutes.

Bailable & Cognizable: A conceptual understanding

The Code of Criminal Procedure, 1973 [“Code”] is the primary statute which helps us determine if a particular offence is bailable or not and cognizable or not; unless a statute stipulating an offence specifically provides for its cognizable and bailable nature. Essentially, a cognizable offence is the one for which a police officer “may arrest without warrant” [Section 2 (c) of the Code]; and a non-cognizable offence is the one for which “a police officer has no authority to arrest without warrant” [Section 2 (l) of the Code]. The definition of “bailable offence” and “non-bailable offence” as provided in Section 2 (a) of the Code does not give us much guidance as to the meaning thereof. For that, one has to inter alia refer to Chapter XXXIII of the Code, a perusal whereof suggests that: a bailable offence is the one for which the accused can seek bail as a matter of right [Section 436 of the Code]; while in case of a non-bailable offence, the discretion to grant bail lies with the Court [Sections 437-439 of the Code].

Given the grave restriction of personal liberty (or at least a reasonable apprehension whereof) that ensues as a result of characterizing a particular offence as cognizable and non-bailable, the issue which is discussed herein becomes significant, and perhaps for that reason has been re-agitated several times. The sole guide in this regard is the First Schedule to the Code [“Schedule”] which inter alia classifies offences as cognizable / non-cognizable & bailable / non-bailable.

The Issue

The Copyright Act and the Trade Marks Act (and various other statutes for that matter) provide for certain offences but fail to classify those offences specifically as cognizable / non-cognizable & bailable / non-bailable. Therefore, to determine the appropriate classification, one has to make reference to Part II of the Schedule, which provides for “classification of offences against other laws”. The classification provided therein is to the following effect [“concerned classification table”]:

In the Copyright Act, there are various provisions [being Sections 63 (Offence of infringement of copyright or other rights conferred by the Copyright Act), 63A (Enhanced penalty on second and subsequent convictions), 63B (Knowing use of infringing copy of computer programme to be an offence) & 68A (Penalty for contravention of section 52A)] which provide for offences whose punishment is imprisonment which “may extend to three years”. Even the Trade Marks Act contains provisions [being Sections 103 (Penalty for applying false trade marks, trade descriptions, etc.), 104 (Penalty for selling goods or providing services to which false trade mark or false trade description is applied), 105 (Enhanced penalty on second or subsequent conviction) & 107 (Penalty for falsely representing a trade mark as registered)] which provide for offences with the aforementioned punishment. To determine if the aforementioned offences are cognizable and non-bailable or non-cognizable and bailable, one needs to analyze the entries of the concerned classification table and see under which entry the aforementioned offences fall – the second entry or the third entry.

Case Law

Now, let us turn to the case law on the issue; an analysis whereof reveals that there are various conflicting judgments of the High Courts. Although there is an order of the Supreme Court viz. Avinash Bhosale v. Union of India [(2007) 14 SCC 325] which has been considered by some High Courts to be a conclusive dictum on the issue, however, it can be argued that this order does not amount to declaration of law under Article 141 of the Constitution by invoking the doctrine of sub silentio. In Avinash Bhosale, the issue pertained to Section 135 (1) (ii) of the Customs Act, 1962, which provides for an offence for “evasion of duty or prohibitions” and makes it punishable with imprisonment “which may extend to three years” in certain cases. Avinash Bhosale is a one-page order wherein all the Supreme Court had to say was, “it appears to us that the offence which is alleged to have been committed is a bailable offence”. There was no analysis of the concerned offence or the entries in the concerned classification table. There was no justification (whatsoever) as to why the concerned offence fell under the third entry of the concerned classification table. In fact, there was no reference to the third entry of the concerned classification table. There was no reasoning or justification as is highly warranted on this issue. It can only be termed as a purely ‘silent’ and ‘non-reasoned’ order.

It is now apposite to understand the doctrine of sub silentio, in brief. In MCD v. Gurnam Kaur [(1989) 1 SCC 101], the Supreme Court explained the doctrine in the following words:

“Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn. explains the concept of sub silentio at p. 153 in these words:

A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.

…in Lancaster Motor Co. (London) Ltd. v. Bremith, Ltd. [1941] 1 KB 675, the Court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. We went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided “without argument, without reference to the crucial words of the rule, and without any citation of authority”, it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed.”

Gurnam Kaur was followed in State of U.P. v. Synthetics and Chemicals Ltd. [(1991) 4 SCC 139] wherein the Supreme Court held as follows:

“But the problem has arisen due to the conclusion in the case of Synthetic and Chemicals (supra). The question was if the State legislature could levy vend fee or excise duty on industrial alcohol. The Bench answered the question in the negative as industrial alcohol being unfit for human consumption the State legislation was incompetent to levy any duty of excise either under Entry 51 or Entry 8 of List II of the VIIth Schedule. While doing so the Bench recorded the conclusion extracted earlier. It was not preceded by any discussion. No reason or rationale could be found in the order. This gives rise to an important question if the conclusion is law declared under Article 141 of the Constitution or it is per in curium and is liable to be ignored… In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. 1941 1KB 675, the Court did not feel bound by earlier decision as it was rendered ‘without any argument, without reference to the crucial words of the rule and without any citation of the authority’. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur AIR 1989 SC 38. The Bench held that, ‘precedents sub-silentio and without argument are of no moment’. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In Shama Rao v. State of Pondicherry AIR 1967 SC 1680 it was observed, ‘it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down there-in’. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent.”

Gurnam Kaur and Synthetics and Chemicals Ltd. were followed in A-One Granites v. State of U.P. [(2001) 3 SCC 537]. In light of the aforementioned judgments on the doctrine of sub silentio, it cannot be said that Avinash Bhosale amounts to declaration of law under Article 141, and hence, has a binding effect. Now, as we have dodged Avinash Bhosale, we must refer to the judgments of the High Courts.

i. Gauhati High Court

In Jitendra Prasad Singh v. State of Assam [(2004) 2 GLR 271], the High Court was considering if the offence stipulated in Section 63 of the Copyright Act is a bailable one or not. On a plain reading of the text of Section 63 and that of the third entry in the concerned classification table, it was held that the offence was a non-bailable one. The reasoning was: the expression “punishable with imprisonment which may extend to three years” cannot be equated with the expression “punishable with imprisonment for less than 3 years” since the accused can be punished with imprisonment for three years, and hence, the third entry will not apply. Therefore, the offence cannot be considered as a bailable one. In essence, the test laid down was that one has to look at the maximum punishment provided for an offence, and then determine which entry of the concerned classification table it falls under.

ii. Andhra Pradesh High Court

In Amarnath Vyas v. State of A.P. [MANU/AP/1214/2006], the High Court did not agree with Jitendra Prasad Singh and held that the offence stipulated in Section 63 was a bailable one. However, the reasoning provided therein was completely convoluted. It was unequivocally held that the third entry of the concerned classification table did not apply since the maximum punishment provided in Section 63 was imprisonment for three years. However, it was (strangely) held that even the second entry did not apply:

“Whether the second category of the classification will attract or not is the only point germane for consideration in the instant case. A close scrutiny of the excerpt extracted hereinabove would clearly show that the punishment prescribed under the provisions of the Act is for a term which may extend upto three years. If the punishment prescribed under any special Act is for a term of three years and upwards, it would become ‘non-bailable’. The language used in both the provisions, if read keeping them in juxtaposition, would help us in comparing them so as to have a clear idea… The expression “punishment for a term which may extend to three years” is certainly not similar to the expression “punishment for three years and upwards”… True there may be certain other class of offences which may fall in between classification II and classification III of Second Part of Schedule-I. 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… 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.”

The aforementioned observation shows that the Court was apparently of the view that there are certain crevices and interstices in the concerned classification table within which one could fit the offences like the ones we are concerned with. However, there was no guidance as to how one should locate those crevices and interstices in the concerned classification table or the scheme of the Code. In any case, even if it is assumed that the interpretational analysis in the aforementioned judgment is correct, there is no justification as to how the Court came to the conclusion that the concerned offence was a non-bailable one. Because, even if one accepts that not a single entry of the concerned classification table is applicable in such a case, how does one, then, determine if the offence is a bailable one or not?

Furthermore, the Court made reference to a Supreme Court judgment viz. Rajeev Chaudhary v. State (N.C.T.) of Delhi [MANU/SC/0330/2001] to bolster its justification. Rajeev Chaudhary provided clarity on the interpretation of Proviso (a) to Section 167 (2) of the Code, which is as follows:

“the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding—

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence,

and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail…”

In Rajeev Chaudhary, the Supreme Court was enjoined to decide if the offence stipulated in Section 386 of the Indian Penal Code, 1860, wherein the maximum punishment is imprisonment “which may extend to ten years”, fell under clause (i) or (ii) of the aforementioned Proviso. In the context of the aforementioned Proviso, the Court held that imprisonment “which may extend to ten years” cannot be equated with “imprisonment for a term of not less than ten years”. However, this ruling has no relevance to the issue which the Amarnath Vyas Court was deciding. One needs to understand that given the text of the aforementioned Proviso, one has to undergo a process of elimination since clause (i) deals with certain kinds of offences while clause (ii) is the residuary clause. So, one just needs to see if the concerned offence falls under clause (i), otherwise, clause (ii) applies. But, that is not the case with the concerned classification table. It provides a continuum, and every offence has to be classified under either of the three entries. Rajeev Chaudhary provided no guidance with respect to that. Therefore, it is not relevant.

iii. Kerala High Court

In Abdul Sathar v. Nodal Officer, Anti-Privacy Cell [AIR 2007 Ker 212], the Court held that the offence stipulated in Section 63 of the Copyright Act falls under the second entry of the concerned classification table, and hence, is a non-bailable and cognizable one. The logic of Jitendra Prasad Singh was followed (although no reference was made) – that one should look at the maximum punishment provided, and since maximum punishment provided in Section 63 is three years, it falls under the second entry. Pertinently, it distinguished Rajeev Chaudhary reasoning that the language used in Proviso (a) to Section 167 (2) of the Code is different from that used in the concerned classification table.

iv. Delhi High Court

In State v. Naresh Kumar Garg [2013 (56) PTC 282 (Del)], the Court held that the ruling in Avinash Bhosale would apply, and therefore, Section 63 of the Copyright Act was held to be bailable and non-cognizable. Thereafter, in Anuragh Sanghi v. State [2019 SCC OnLine Del 11382], the Court manifested a volte-face. The Court mad certain pertinent (and correct) observations in relation to interpretation of the concerned classification table, which are as follows:

“It is, at once, clear that there is no hiatus between the three categories. The spectrum of punishment by imprisonment from nil to life, is divided into three categories in the descending order. Therefore, this Court is of the view that the said three categories are exhaustive. Obviously, it follows that if an offence is punishable by a term of imprisonment which is not specifically mentioned in Part II of the First Schedule of the Cr.P.C., the same would be covered within the spectrum of the three categories… Almost all enactments stipulate a range of punishment that can be imposed in respect of any offence. Most of the enactments provide for a maximum punishment that can be imposed and some of the enactments also provide for a minimum sentence that can be awarded for an offence. It is not necessary that the range of punishment, as provided for any offence under any enactment, be in identical terms with the language of any of the categories under Part II of the First Schedule of the Cr.P.C. However, that does not mean that the punishment provided for the said offence falls outside the scope of Part II of the First Schedule of the Cr.P.C. As stated above, the three categories of Part II of the First Schedule of the Cr.P.C. cover the entire spectrum of offences that are punishable by imprisonment – from a term of nil (only with a fine) to a term of life.”

It is in the aforementioned manner that the Court refuted the logic of Amarnath Vyas. In pursuance of the aforementioned analysis and going by the logic of ‘maximum punishment’, the Court was convinced that Section 63 of the Copyright Act provides for a non-bailable and cognizable offence. However, the Court considered itself bound by the rulings in Avinash Bhosale and Naresh Kumar Garg. This is where, I feel, the Court could have done more. As already argued hereinbefore, Avinash Bhosale cannot be considered as binding. In so far as Naresh Kumar Garg is concerned, it was a judgment delivered by Single Judge and could have been referred to a Division Bench.

v. Gujarat High Court

In Gurukrupa Mech Tech v. State of Gujarat [(2018) 4 GLR 3324], the Court merely relied on Naresh Kumar Garg and held that Section 63 of the Copyright Act provided for a bailable and non-cognizable offence.

vi. Rajasthan High Court

In Pintu Dey v. State [MANU/RH/873/2015], the Court (Single Judge) relied on Amarnath Vyas and Rajeev Chaudhary and held that Sections 63 & 68A of the Copyright Act provided for bailable and non-cognizable offences. Thereafter, in Deshraj v. State of Rajasthan, the Court (Single Judge) gave a similar ruling without referring to Pintu Dey but by relying on Amarnath Vyas and Rajeev Chaudhary, and held that Section 63 & 63B of the Copyright Act provided for bailable and non-cognizable offences. However, in Nathu Ram v. State of Rajasthan [MANU/RH/39/2021], the Court (Division Bench) overruled Pintu Dey by distinguishing Rajeev Chaudhary and disagreeing with Amarnath Vyas. Deshraj was not referred to but the same stands impliedly overruled. Nathu Ram followed the logic of ‘maximum punishment’ as discussed hereinbefore.

vii. Bombay High Court

The last in our analysis comes the judgment in Piyush Subhashbhai Ranipa v. State of Mahrashtra [2021 (86) PTC 72 (Bom)], wherein the Court held that Section 63 of the Copyright Act and Section 103 of the Trade Marks Act provide for non-bailable and cognizable offences since the maximum punishment provided therein is imprisonment for three years, and hence, the second entry of the concerned classification table becomes applicable.

Conclusion

As is evident in my discussion of the judgments herein, I support the logic of ‘maximum punishment’. It might lead to harsh consequences, but that is the only way one can read the text employed in the concerned classification table. It is a continuum which is exhaustive and does not leave scope for crevices and interstices as was envisaged in Amarnath Vyas. Undoubtedly, Avinash Bhosale needs to be reconsidered. In any case, as I have argued, the same is not binding. In my opinion, all the aforementioned judgments, which hold that Section 63 of the Copyright Act and the like provisions provide for bailable and non-cognizable offences, do not lay down the correct position of law.