: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1314 OF 2009 1. Vijay Sharma 2. Smt. Vimlesh Sharma Both are residing at B-202, Vina Sargam, Mahavir Nagar, Kandivali (W), Mumbai 400 067 .. Petitioners V/s. The State of Maharashtra, through Kandivali (W) Police station Mumbai – 400 067 .. Respondent ..... Mr. V.N. Shingnapurkar for the Petitioners Mr. D.P. Adsule, APP for the respondent State ..... CORAM : B.H. MARLAPALLE & R.Y.GANOO, JJ. DATE : November, 2009 JUDGMENT : (Per R.Y. Ganoo, J.) 1. Rule. Rule made returnable forthwith. By consent taken up for hearing immediately. The petitioners have filed this petition to have FIR No.23/2009 filed with Kandivali (W), Mumbai police station quashed. It is also prayed that subsequent proceedings after the lodgment of the FIR be quashed. : 2 : 2. Few facts necessary for the disposal of this petition are as under. The petitioner No.2 is the owner of a shop situate at shop No.25, Raj Arcade Society, Kandivali (W), Mumbai. The petitioner is selling Ice- Cream in the name and style of “Sanjay Ice-Cream”. The petitioner No.1 is the husband of petitioner No.2 and is attending to the said shop. 3. Mr. Mangal U. Pandey, Investigation Officer appointed at E.I.P.R. India Ltd. on behalf of M/s. Omvera Ice-Creams, Mumbai reported to the Kandivali police station and informed the officer at the Kandivali police station that the petitioners are violating the provisions of Section 53 of the Copyright Act, 1957 (herein after referred to as the “said Act”). Thereafter, the police staff attached to Kandivali police station in the company of said Mangal U. Pandey reached the shop of petitioner No.2 at Kandivali (W), Mumbai. At the said site, it was noticed by the police that board by description “Sanjay Ice-Cream” was displayed on the shop of petitioner No.2 at both sides. Said Mangal U. Pandey had contended that the company by name M/s. Omvera Ice-Creams having their shop at Kandiwali (W), Mumbai had obtained registered trade mark in the name and style of “Sanjay Ice-Cream” and had a Copyright thereof. According to said Mangal U. Pandey, the petitioner No.2 had by displaying the board “Sanjay Ice Cram” on her shop had committed an offence punishable : 3 : under Section 53 r/w. Section 61 of the said Act. Accordingly panchanama of the situation at site and in particular with reference to the board was conducted and FIR filed by Mangal U. Pandey was received by the police and the police at Kandivali police station registered cime vide FIR No. 23/09 against the petitioners under Section 51 r/w. Section 63 of the said Act. The petitioner No.1 came to be arrested on 28th March, 2009 itself. Subsequently, he was released on bail. 4. The petitioners have filed this petition for quashing of the FIR on the ground that even if the case of complainant Mr. Mangal U. Pandey is accepted as it is, the petitioner No.2 who is the owner of the shop, can be said to have committed a non-cognizable offence. It was also submitted that because petitioner No.1 has no concern with the shop owned by the petitioner No.2, he has not committed any offence. 5. Learned advocate Mr. Shingnapurkar appearing on behalf of the petitioners took us to the provisions of Section 63 of the said Act which are as under :- “Any person who 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 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 and : 4 : 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 on 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.” 6. Mr. Shingapurkar submitted that a perusal of the aforesaid provision would go to show that maximum sentence of imprisonment which could be imposed for having committed an offence punishable under Section 63 of the said Act may extent to 3 years. He subsequently took us through Part II of Schedule I of Cr.P.C. which provides for classification of the offences as cognizable / non-congnizable. He drew our attention to Item No.3 and submitted that if offence is punishable with imprisonment for less than 3 years or with fine only then it is non-cognizable. Learned advocate Mr. Shingnapurkar submitted that Section 63 of the said Act quoted above if perused would go to show that the punishment provided for offence punishable under Section 63 of the said Act is less than 3 years and as such the said offence would be non-cognizable. Learned advocate Mr. Shingnapurkar submitted that once it is accepted that offence punishable under Section 63 of the said Act is non-cognizable, the Court will have to accept his argument that the police were not empowered to treat the complaint filed by Mr. Mangal U. Pandey as a complaint in regard : 5 : to a cognizable offence. He, therefore, submitted that it was wrong on the part of the police to register the crime against the petitioners vide FIR No. 23/09 under Section 51 r/w. Section 63 of the said Act. He submitted that it was necessary for the police on receipt of complaint by Mr. Mangal U. Pandey to take action under Section 155 of the Code of Civil Procedure. He, therefore, submitted that if the action initiated by the police is illegal as submitted by him, the FIR is required to be quashed. He also submitted that subsequent proceedings initiated pursuant to the FIR is required to be quashed. 7. Mr. Adsule, APP appearing on behalf of the State tried to support the action initiated by Mr. Mangal U. Pandey and further action taken by the police. He prayed for dismissal of the petition. 8. We have considered the provisions of Section 63 of the said said Act. Reading of the said provisions would clearly go to show that the punishment to be imposed for commission of an offence under Section 63 of the said Act would not exceed 3 years and that is how it will have to be treated that offence punishable under Section 63 of the said Act is punishable with imprisonment for a period of less than 3 years. Hence, for the purposes of classification of the offence, one will have to apply Item No.3 of Part II of Schedule I of Cr.P.C. This will mean that the argument : 6 : advanced by learned advocate Mr. Shingnapurkar that the offence punishable under Section 63 of the said Act is non-cognizable. Once it is recorded that offence punishable under Section 63 of the said Act is non- cognizable, it was erroneous on the part of the police to register the crime. It was necessary for the police to receive the complaint and take action under Section 155 of Cr.P.C. and treat the said complaint as a complaint in regard to a non-cognizable offence. As a result of these observations, the action initiated by the police namely arrest of petitioner No.1 is illegal and void ab initio. 9. In view of the aforesaid discussion, the argument advanced by learned advocate Mr. Shingnapurkar that the FIR No.23/09 is required to be quashed can be accepted. Hence, it is hereby ordered that FIR No.23/09 of Kandivali (W) police station is hereby quashed and set aside. Proceedings initiated pursuant to the said FIR also stands quashed. Bail bond of the petitioners stands cancelled. [R.Y.GANOO, J.] [B.H. MARLAPALLE, J.]