The offence punishable under S.63 of the Copyright Act is bailable as its classification does not meet the strict criteria for non-bailable offences.

1. The instant case is coming up for consideration under the caption 'for being mentioned'. When the petitioner initially applied for anticipatory bail under S.438 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) (for short 'the Cr.P.C.') having regard to the accusation that he perpetrated the offence punishable under S.63 of the Copyright Act, 1957 (Act No. 14 of 1957) (for short 'the Act'), this Court dismissed the anticipatory bail on the ground that the offence alleged is bailable and therefore no application for anticipatory bail could be maintained.

2. Having regard to the magnitude of the offence alleged to have been perpetrated by the petitioner apprehending that it would cause considerable damage to the prosecution, the learned Public Prosecutor sought the order to be reconsidered on the premise that the offence alleged is a non bailable one, but not a bailable one.

3. Heard extensively the arguments of the learned Public Prosecutor. S.63 of the Act is the provision germane in the context and reads as under:
"63. Offence of infringement of copyright or other rights conferred by this Act.-- Any person knowingly infringes or abets the infringement of--
(a) the copyright in a work, or
(b) any other right conferred by this Act, except the right conferred by S.53A.
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:
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 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.

4. A bare perusal of the provision shows that if any person infringes or abets the infringement of a copyright 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. If the infringement has not been made for any 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 imprisonment for a term of less than six months or sentence of fine of less than fifty thousand rupees. The punishment thus prescribed under the said provision is a minimum sentence of six months and the maximum sentence, which may extend up to three years. The Act does not contain any provision, which makes the offence punishable under S.63 of the Act as 'non bailable' one.

5. The Act seeks to define the 'copyright' and prescribe punishment for imprisonment thereof. The offence is obviously, as can be seen from S.70 of the Act, cognizable and triable by a Court, which is not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of First Class. Therefore, there has been no provision in the Act which makes offence clearly a 'non bailable' one. Undoubtedly, the offence punishable under S.63 of the Act is triable by a criminal Court of Judicial Magistrate of First Class or Metropolitan Magistrate adopting the procedure envisaged under the provisions of the Cr.P.C. The Cr.P.C. applies proprio vigore for the trial of an offence under the Act. In the absence of any specific provision, under the Act, making the offence 'non bailable' one has to fall back u