M/S KNIT PRO INTERNATIONALversusTHE STATE OF NCT OF DELHI & ANR.

290                       [2022]
               SUPREME COURT     3 S.C.R. 290
                              REPORTS                      [2022] 3 S.C.R.


A                    M/S KNIT PRO INTERNATIONAL
                                       v.
                 THE STATE OF NCT OF DELHI & ANR.
                       (Criminal Appeal No. 807 of 2022)
B
                                MAY 20, 2022
              [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
            Copyright Act, 1957 – s.63 – Whether, the offence under s.63
      of the Copyright Act is a cognizable offence or a non-cognizable
C     offence – Held: For offence u/s.63 of the Copyright Act, the
      maximum punishment which can be imposed would be three years –
      In that view of the matter considering Part II of the First Schedule
      of the CrPC, if the offence is punishable with imprisonment for
      three years and onwards but not more than seven years the offence
D     is a cognizable offence – High Court committed grave error in
      holding that the offence u/s.63 of the Copyright Act is a non-
      cognizable offence – Offence u/s.63 of the Copyright Act is a
      cognizable and non-bailable offence – CrPC – First Schedule, Part
      II.
E
            Allowing the appeal, the Court

             HELD:1. For the offence under Section 63 of the Copyright
      Act, 1957, the punishment provided is imprisonment for a term
      which shall not be less than six months but which may extend to
F     three years and with fine. Therefore, the maximum punishment
      which can be imposed would be three years. Therefore, the
      Magistrate may sentence the accused for a period of three years
      also. In that view of the matter considering Part II of the First
      Schedule of the Cr.P.C., if the offence is punishable with
G     imprisonment for three years and onwards but not more than
      seven years the offence is a cognizable offence. Only in a case
      where the offence is punishable for imprisonment for less than
      three years or with fine only the offence can be said to be non-
      cognizable. The language of the provision in Part II of First
H
                                      290
 M/S. KNIT PRO INTERNATIONAL v. THE STATE OF NCT OF                      291
                    DELHI & ANR.

Schedule is very clear and there is no ambiguity whatsoever.             A
[Para 5.3][295-D-F]

      2. Under the circumstances, the High Court has committed
a grave error in holding that the offence under Section 63 of the
Copyright Act is a non-cognizable offence. The offence under
                                                                         B
Section 63 of the Copyright Act is a cognizable and non-bailable
offence. Consequently, the impugned judgment and order passed
by the High Court taking a contrary view is hereby quashed and
set aside and the criminal proceedings against respondent no.2
for the offence under Sections 63 & 64 of the Copyright Act now
                                                                         C
shall be proceeded further in accordance with law and on its own
merits treating the same as a cognizable and non-bailable offence.
[Paras 6, 7][295-G-H; 296-A-B]

      Rakesh Kumar Paul vs. State of Assam (2017) 15 SCC
      67 : [2017] 8 SCR 785 – held inapplicable.                         D
      Intelligence Officer, Narcotics Control Bureau vs.
      Sambhu Sonkar, AIR 2001 SC 830 : [2001] 1
      SCR 821 – referred to.

                       Case Law Reference                                E
[2017] 8 SCR 785                held inapplicable       Para 3.1

[2001] 1 SCR 821                referred to             Para 3.2

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                  F
No. 807 of 2022.

      From the Judgment and Order dated 25.11.2019 of the High Court
of Delhi at New Delhi in W.P. (Crl.) No. 3422 of 2018.

     R. K. Tarun, Rohit Shukla, Abhay Solanki, Ms. S. Rani, Ms. Pinky,   G
Yadav Narender Singh, Advs. for the Appellant.

     Ms. Aishwarya Bhati, ASG, Siddhartha Dave, Sr. Adv., Ajay
Marwah, Adity Srinivasan, Rajan Bajaj, Rishabh Kanojiya, Karan Thakur,
Tapan Masta, Ayush Gupta, Mohammad Akhil, Adit Khorana, Ranjan
                                                                         H
292             SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A     Kumar Chourasia, Sughosh Subramanyam, Anukalp Jain, Gurmeet Singh
      Makker, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            M. R. SHAH, J.
B
             1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 25.11.2019 passed by the High Court of Delhi at New
      Delhi in Writ Petition (Crl.) No.3422 of 2018 by which the High Court
      has allowed the said writ petition and has quashed the FIR bearing No.431
      of 2018 filed against the respondents for the offences under Sections 63
C     and 65 of the Copyright Act, 1957 (hereinafter referred to as ‘Copyright
      Act’), the original complainant has preferred to the present appeal.
             2. That the appellant herein filed an application under Section
      156(3) Cr.P.C. and sought directions from the learned Chief Metropolitan
      Magistrate for the registration of FIR against the respondent No.2 herein
D     for the offences under Sections 51, 63 & 64 of the Copyright Act read
      with Section 420 of the IPC. By order dated 23.10.2018, the learned
      CMM allowed the said application and directed the concerned SHO to
      register the FIR under the appropriate provision of law. That pursuant to
      the said order, FIR bearing No.431 of 2018 came to be registered with
E     PS Bawana. That thereafter respondent no.2 herein – original accused
      filed the present petition before the High Court with a prayer to quash
      the criminal proceedings on various grounds. However, at the time of
      hearing, the original writ petitioner – accused prayed to quash the criminal
      proceedings on the sole ground that the offence under Section 63 of the
      Copyright Act is not a cognizable and a non-bailable offence.
F
             2.1 By the impugned judgment and order the High Court has
      allowed the said writ petition and has quashed the criminal proceedings
      and the order passed by the learned CMM passed in Criminal Application
      under Section 156(3) Cr.P.C. by holding that the offence under Section
      63 of the Copyright Act is a non-cognizable offence.
G
             3. Mr. R.K. Tarun, learned counsel appearing on behalf of the
      appellant has vehemently submitted that the High Court has committed
      a grave error in observing and holding that the offence punishable under
      Section 63 of the Copyright Act is a non-cognizable offence and it does
      not fall within Part II of the First Schedule of the Cr.P.C.
H
M/S. KNIT PRO INTERNATIONAL V. THE STATE OF NCT OF                             293
             DELHI & ANR. [M. R. SHAH, J.]

       3.1 It is submitted that while holding that the offence under Section   A
63 of the Copyright Act is a non-cognizable offence, the High Court has
not properly appreciated the decision of this Court in the case of Rakesh
Kumar Paul vs. State of Assam, (2017) 15 SCC 67 and has
misinterpreted the said judgment.
        3.2 It is submitted that in the case of Intelligence Officer,          B
Narcotics Control Bureau vs. Sambhu Sonkar, AIR 2001 SC 830,
it is specifically observed and held by this Court that the maximum term
of imprisonment that is prescribed for the said offence, cannot be excluded
for the purpose of classification of the offence.
      3.3 It is submitted by learned counsel for the appellant that for the    C
offences under Section 63 of the Copyright Act, the punishment shall be
imprisonment for a term which shall not be less than six months but
which may extend to three years. It is submitted that therefore the
punishment of three years can be imposed for the said offence. It is
submitted therefore that Part II of the First Schedule of the Cr.P.C.          D
would be applicable. It is submitted that only in a case where the offence
punishable with imprisonment for less than three years or with fine only
offence shall be non-cognizable. It is submitted that as per Part II of the
First Schedule of the Cr.P.C,. if the offence is punishable with
imprisonment for three years and upwards but not less than 7 years, the
offence would be cognizable. It is submitted that in that view of the          E
matter the High Court has committed a grave error in quashing the FIR
while holding that the offence under Section 63 of the Copyright Act is a
non-cognizable offence.
      4. Present appeal is vehemently opposed by Shri Siddhartha Dave,
learned Senior Advocate appearing on behalf of respondent no.2.                F

      4.1 Shri Dave, learned Senior Counsel has heavily relied upon the
decision of this Court in the case of Rakesh Kumar Paul (supra). It is
submitted that in the aforesaid decision the expression “not less than 10
years” has been interpreted by this Court and it is held that the said
                                                                               G
expression would mean punishment should be 10 years and therefore,
Section 167(2)(a)(i) would apply. It is submitted that in that view of the
matter the High Court has not committed any error in holding that the
offence under Section 63 of the Copyright Act is a non-cognizable
offence.
                                                                               H
294            SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A            4.2 In the alternative, it is prayed by Shri Dave learned Senior
      Advocate appearing on behalf of respondent no.2 that if this Court holds
      that the offence under Section 63 of the Copyright Act is a cognizable
      offence, in that case, the matter may be remanded to the High Court to
      decide the writ petition on merits on other grounds, as no other grounds
B     were pressed into service.

             5. We have heard learned counsel for the respective parties at
      length.

             5.1 The short question which is posed for consideration before
      this Court is, whether, the offence under Section 63 of the Copyright Act
C
      is a cognizable offence as considered by the Trial Court or a non-
      cognizable offence as observed and held by the High Court.

             5.2 While answering the aforesaid question Section 63 of the
      Copyright Act and Part II of the First Schedule of the Cr.P.C. are required
D     to be referred to and the same are as under:
                   “63. Offence of infringement of copyright or other
            rights conferred by this Act. - Any person who knowingly
            infringes or abets the infringement of-

E                  (a) the copyright in a work, or

                   (b) any other right conferred by this Act, except the right
            conferred by section 53A except the right conferred by section
            53A shall be punishable with imprisonment for a term which shall
            not be less than six months but which may extend to three years
F           and with fine which shall not be less than fifty thousand rupees
            but which may extend to two lakh rupees: Provided that where
            the infringement has not been made for gain in the course of
            trade or business the court may, for adequate and special reasons
            to be mentioned in the judgment, impose a sentence of
G           imprisonment for a term of less than six months or a fine of less
            than fifty thousand rupees.
                  Explanation - Construction of a building or other structure
            which infringes or which, if completed, would infringe the copyright
            in some other work shall not be an offence under this section.”
H
M/S. KNIT PRO INTERNATIONAL V. THE STATE OF NCT OF                           295
             DELHI & ANR. [M. R. SHAH, J.]

       II – CLASSIFICATION OF OFFENCES AGAINST OTHER                         A
                          LAWS




                                                                             B




                                                                             C



       5.3 Thus, for the offence under Section 63 of the Copyright Act,
the punishment provided is imprisonment for a term which shall not be
less than six months but which may extend to three years and with fine.      D
Therefore, the maximum punishment which can be imposed would be
three years. Therefore, the learned Magistrate may sentence the accused
for a period of three years also. In that view of the matter considering
Part II of the First Schedule of the Cr.P.C., if the offence is punishable
with imprisonment for three years and onwards but not more than seven        E
years the offence is a cognizable offence. Only in a case where the
offence is punishable for imprisonment for less than three years or with
fine only the offence can be said to be non-cognizable. In view of the
above clear position of law, the decision in the case of Rakesh Kumar
Paul (supra) relied upon by learned counsel appearing on behalf of
respondent no.2 shall not be applicable to the facts of the case on hand.    F
The language of the provision in Part II of First Schedule is very clear
and there is no ambiguity whatsoever.
       6. Under the circumstances the High Court has committed a grave
error in holding that the offence under Section 63 of the Copyright Act is
                                                                             G
a non-cognizable offence. Thereby the High Court has committed a
grave error in quashing and setting aside the criminal proceedings and
the FIR. Therefore, the impugned judgment and order passed by the
High Court quashing and setting aside the criminal proceedings/FIR under
Section 63 of the Copyright Act deserves to be quashed and set aside.
                                                                             H
296             SUPREME COURT REPORTS                          [2022] 3 S.C.R.


A             7. In view of the above discussion and for the reason stated above,
      it is observed and held that offence under Section 63 of the Copyright
      Act is a cognizable and non-bailable offence. Consequently, the impugned
      judgment and order passed by the High Court taking a contrary view is
      hereby quashed and set aside and the criminal proceedings against
      respondent no.2 for the offence under Sections 63 & 64 of the Copyright
B
      Act now shall be proceeded further in accordance with law and on its
      own merits treating the same as a cognizable and non-bailable offence.
             Present appeal is allowed to the aforesaid extent. However, in
      the facts and circumstances of the case there shall be no order as to
C     costs.

      Bibhuti Bhushan Bose                                         Appeal allowed.




D




E




F




G




H