...further settling down the debate, once and for all!
After writing about the decision of the Hon'ble Rajasthan High Court about cognizability of offence for which punishment may extend upto three (3) years, a recently passed judgment of the Hon'ble Bombay High Court concerning the offences stipulated in the Copyright Act and the Trade Marks Act has come to my knowledge through @Divyanshu choudhary. Hence, I sincerely feel obligated to write about it as well.
Hon'ble High Court, in Piyush Subhahbhai Ranipa Vs. The State of Maharashtra, while hearing an anticipatory bail application arising out of a FIR under Section 63 of the Copyright Act as well as Section 103 of the Trade Marks Act. The main question which came up for consideration of the Court was, "...whether the offence under section 63 of the Copyright Act and also subsequently applied section 103 of the Trade Marks Act were bailable or non bailable.".
The Court considered a number of judgments passed by that Court previously with regard to offences (in other statutes) in which punishment may extend upto three (3) years. Most importantly, it relied on a Division Bench judgment of that Court in Mahesh Shivram Puthran Vs. The Commissioner of Police, Thane in which the Court was concerned about cognizability or non-cognizability of offences under provisions of the MRTP Act, 1966. The Court, therein, referred to Sections 4 & 5 of the Code of Criminal Procedure and resultantly held that, "As the maximum punishment provided in terms of Section 52 of the Act...being upto three years...is cognizable and non-bailable.". The Court, also, referred to the recent Division Bench judgment of the Hon'ble Rajasthan High Court in Nathu Ram case in which that High Court held in no uncertain terms that an offence under any law other than IPC which is punishable for a term which may extend upto three (3) years, shall be cognizable and non-bailable unless specifically provided.
The Court, furthermore, adverted to the definition of 'bailable offence' as provided under Section 2(a) of the Code of Criminal Procedure and came to the conclusion on lines similar to that of Rajasthan High Court and earlier decisions of that Court. It answered that the offences under Section 63 of the Copyright Act as well as Section 103 of the Trade Marks Act, for which it is possible to impose sentence of exact three years, are, therefore, non-bailable [consequently, cognizable] in nature. Hence, application for anticipatory (pre-arrest) bail is perfectly maintainable.
It is appearing, of late, that this issue is now gradually settling down as more and more High Court have decided in similar terms, thereby, interpreting the nature of offences under two very important Intellectual Property related legislations (Copyright Act and Trade Marks Act) of the country as cognizable and non-bailable.
Note: The Bombay High Court has also decided another important aspect regarding procedure of investigation for offences under the Trade Marks Act regarding obtaining Trade Marks Registrar's opinion [Section 115 (4)] before making any search and seizure. I will discuss that aspect in a separate write-up in future.