In Deshraj v. State of Rajasthan, the Rajasthan High Court held that the police does need a warrant to take action against a person accused of copyright infringement, since it is a ‘non cognizable’ offence.
It has, however, only added to one side of a seemingly dichotomous, age-old debate: Is copyright infringement a non-cognizable offence or a cognizable one? In simple language, does the police require a warrant to proceed against an accused infringer, or can they act without one?
The Indian Copyright Act, 1957 contains eight sections that makes copyright infringement a criminal offence; Section 63, 63B, 68A and Sections 65, 65A, 65B, 67 and 68, each carrying sentences of varying lengths and fine amounts. They can be captured in a table-
|63||Not less than 6 months but which may extend to three years Warrant-Case and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.|
|63B||Imprisonment for a term which shall not be less than seven Warrant-Case days 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.|
|65||Imprisonment which may extend to two years and also Summons-Case be liable to fine.|
|65A||Imprisonment which may extend to two years and shall also Summons-Case be liable to fine.|
|65B||Imprisonment which may extend to two years and shall also Summons-Case be liable to fine|
|67||Imprisonment which may extend to one year, or with fine, Summons-Case or with both.|
|68||Imprisonment which may extend to one year, or with fine, Summons-Case or with both.|
|68A||Imprisonment which may extend to three years and shall Warrant-Case also be liable to fine.|
The question of the nature of these punishments, however, is not a matter covered by the Copyright Act, but by the Criminal Procedure Code, 1973 (CrPC) which spells out in its Ist Schedule, Part II-
|Offence||Cognizable or Non-Cognizable||Bailable or Non-Baliable|
|I||If punishable with death, imprisonment for life, or imprisonment for more than 7 years.||Cognizable||Non-Bailable|
|II||If punishable with imprisonment for 3 years and upwards but not more than 7 years,||Cognizable||Non-Bailable|
|III||If punishable with imprisonment for less than 3 Years or with Fine only.||Non-Cognizable||
Reading both the tables together, it becomes clear that though the second group of Sections 65, 65A, 65B, 67 and 68 fits perfectly in Category III, the first group doesn’t squarely fall into any category. While the second group has maximum prison sentences comfortably below the 3-year threshold, the first group occupies the uneasy space between Category II and III offences, which is now a fertile field for contradictory High Court decisions
High Courts that have held these offences to be non-cognizable and bailable include the Rajasthan, Delhi, Andhra Pradesh and Telangana High Courts, while Assam and Kerala High Courts have held the opposite.
The latter High Courts and endorsers of a similar view believe that making copyright infringement a cognizable offence will help crack down on piracy, while the endorsers of the former view are anxious (rightfully so) that this can stifle creativity, innovation and access to information.
In the context of these anxieties and a farrago of judgments, it becomes essential to analyze the reasoning given by the Rajasthan High Court in Deshraj for some clarity on the nature of the offence.
The petitioner moved the Rajasthan High Court to quash the FIR lodged against him for offences punishable under Sections 63, 63B and 65. His principal argument rested on the argument that the offence under relevant sections was a non-cognizable one, and hence an FIR registered without the judicial magistrate’s order was liable to be quashed. The determination of the nature of the offence was the central issue.
The Court relied primarily on the reasoning given in two cases: Rajeev Chaudhary v. N.C.T of Delhi decided by the Supreme Court and Amarnath Vyas v. State of A.P, decided by the Andhra Pradesh High Court. In the Rajeev Chaudhary case, the SC, while discussing the offence of extortion, differentiated between the expressions ‘not less than 10 years’ and ‘may extend to ten years’; it held-
“In this context, the expression “not less than” would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 years or more.”
This approach was upheld in the Amarnath Vyas case, where the AP High Court applied this reasoning to conclude that offences under Sections 63, 63B and 65 were non-cognizable. It differentiated between a sentence that ‘may extend to three years’ (as prescribed in the relevant Sections) from one that is punishable with imprisonment for ‘3 years and upwards’ (as required by the CrPC), holding that they cannot be equated; making the offence a part of Category III, and hence, non-cognizable. It held-
“In the view of the Apex Court, imprisonment for a term, which may extend to ten years cannot be construed as similar to the sentence of ten years or more” and;
“In view of the said authoritative pronouncement…the expression used in Second category of II-Part of Schedule-I of the CrPC. viz., that the term of imprisonment for three years or upwards, but not more than seven years, cannot be equated with the expression used in Section 63 of the Act viz., the imprisonment which may extend to three years.”
The AP High Court had rejected the cases decided by the Assam High Court and the Kerala High Court on this point, holding that they did not keep the decision of the Supreme Court in mind. Though Rajeev Chaudhary was cited in the judgment of the Assam High Court, its precedential value was dismissed without any explanation or examination.
It further rejected the presumption that offences which do not fall squarely in Category III, necessarily belong to Category II. Any such presumption runs contrary to the rule of interpretation of criminal statutes: that they must be read strictly. The Rajasthan High Court reiterated this forcefully-
“…there may be certain other class of offences which may fall in between Classification II and Classification III of second part of Schedule-I of CrPC but merely because they are not falling squarely within the domain of Classification III, they cannot automatically be treated as included in Classification-II. By default, they cannot be considered as coming within the purview of Classification II…”
The Court, quoting these judgments extensively, arrived at the conclusion that the offence in question is a non-cognizable, bailable offence and quashed the FIR.
This is, as stated above, a welcome judgment; especially for those who believe that making copyright infringement a cognizable offence can act like a gag of sorts, and sacrifice access to information and negatively affect creative endeavors. The intersections of copyright law and free speech have been covered extensively by us in the past, like here and here becoming especially relevant in the ‘digital era’, where censorship often takes the shape of copyright infringement claims. In such a context, any pronouncement holding the opposite only increases the vulnerability of those being censored or discouraged from producing new content (like satires) through infringement claims. The possibility of being arrested under a cognizable, non-bailable offence at a time where an infringement claim is a ‘multi-purpose’ tool can also produce a chilling effect at a worrying level. In this situation Deshraj is a step in the right direction, away from un-warranted arrests of speech and expression.
Image from here.