2019 Supreme(Mad) 1438

IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.K. ILANTHIRAIYAN, J.
M/s. Sivaji Hi-Tec Foods Pvt. Ltd. – Appellant
Versus
The State Rep. by Inspector of Police, Chennai and Others – Respondents
Crl. O.P. Nos. 1379, 6100 of 2019, Crl. MP. Nos. 913, 2325 of 2019, W.P. No. 1484 of 2019, W.M.P. No. 1651 of 2019
Decided On : 25-03-2019

Headnote:

Indian Penal Code,1860 - Section 386 - Criminal Procedure Code,1973 - Sections 155,155(2), 167(2),486 - Copy Right Act 1957 - Section 13,51(b)(i) ,53A,63, 63(a),65 - Constitution of India,1950 - Article 226 - Quashing of order - Supplied duplicate Brand products and infringed copy right and trademarks of defacto complainant - Petitioner is arraigned as and it is alleged that petitioner has supplied duplicate Brand products and infringed copy right and trademarks of defacto complainant - Second respondent claimed that he has given copy right for artistic work comprising of Get-up and colour scheme associated with Brand - He further submitted that complaint is not maintainable since defacto complainant is not only person using said trade mark and copy right application itself is not maintainable and it ought to have been rejected for reason that it is not an original artistic work as mandated under Section 13 of Copy Rights Act - He further submitted that offence registered by first respondent is non cognizable offence - Therefore under Section 155 of Cr.P.C. no police officer can investigate non cognizable offence without order of Magistrate - As impugned FIR has been registered by first respondent without any order of Magistrate it is liable to be quashed - In support of his contention he relied upon judgment reported in Pintu Dey vs. State of Rajasthan and Another Online - Therefore he sought for quashment of FIR - He further submitted that when first respondent has no power even to register FIR he has no power to seal premises belonging to petitioner - Therefore he sought for a direction to de-seal premises of petitioner in writ petition filed before this Court viz -Whether offence under Section 63 of Copy Rights Act is a cognizable one? - Whether offence is one for which punishment of imprisonment for a term of ten years or more can be awarded - Whether police has power to seal premises or not? - Held, As per section 63 offence under said Act is punishable with imprisonment for a terms which shall not be less than six months but which may extend to three years and with fine - Offence falling under section 65 of Act of 1957 is punishable with imprisonment which may extend to two years and an offence falling under section 68A of Act of 1957 shall punishable with imprisonment which may extend to three years - Expression not less than would mean imprisonment should be ten years or more and would cover only those offences for which punishment could be imprisonment for a clear period of ten years or more - Under Section 386 punishment provided is imprisonment of either description for a term which may extend to ten years and also fine - That means imprisonment can be for a clear period of ten years or less - Hence it could not be said that minimum sentence would be ten years or more - Further in context also if Court consider Clause of proviso to Section 167 it would be applicable in case where investigation relates to an offence punishable with death imprisonment for life and imprisonment for a term of not less than ten years - It would not cover offence for which punishment could be imprisonment for less than ten years - Under Section 386 of I.P.C. imprisonment can vary from minimum to maximum of ten years and it cannot be said that imprisonment prescribed is not less than ten years - In view of said authoritative pronouncement of Apex Court expression used in Second category of II-Part of Schedule-I of Cr.P.C. viz that term of imprisonment for three years or upwards but not more than seven years cannot be equated with expression used in Section 63 of Act viz - Imprisonment which may extend to three years - Offence of infringement of copyright or other rights conferred by this Act - Any person who knowingly infringes or abets infringement of - copyright in a work - Any other right conferred by this Act - shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees - In case of a particular offence even though Court may have discretion to award punishment of imprisonment for a term of less than years above mentioned clause will apply if accused can be punished with imprisonment for a term of ten years - It is answered that when police has no power to register and investigate non cognizable offence as contemplated under Section 155(2) of Cr.P.C he has no power to seal premises without an order of concerned jurisdictional Magistrate - Information as to non-cognizable cases and investigation of such cases When information is given to an officer in charge of a police station of commission within limits of such station of a non-cognizable offence he shall enter or cause to be entered substance of information in a book to be kept by such officer in such form as State Government may prescribe in this behalf and refer informant to Magistrate - No police officer shall investigate a non-cognizable case without order of a Magistrate having power to try such case or commit case for trial - Any police officer receiving such order may exercise same powers in respect of investigation as an officer in charge of a police station may exercise in a cognizable case - Where a case relates to two or more offences of which at least one is cognizable case shall be deemed to be a cognizable case notwithstanding that other offences are non-cognizable - Petition Dismissed