1.1 INTRODUCTION

Anticipatory Bail, as the name suggests, is a preventive relief that comes to the rescue of any person who is anticipating or apprehending arrest on the accusation of having committed a non-bailable offence, provided such apprehension must be founded on reasonable grounds, and is not vague or based on mere 'fear' that someone is going to make an accusation against him.1 The provision related to Anticipatory Bail was introduced in the new code of 1973, after the recommendation of the Law Commission in its 41st Report dated September 24, 1969, as an antidote to the detention of any person in false cases.2 Clause 447 of the Draft bill of 1970 related to anticipatory bail, after certain modifications, became Section 438 of the Code of Criminal Procedure ["CrPC"], 1973.3 The object of section 438 of CrPC is to prevent harassment or humiliation which may be caused to any person merely to satisfy the grudge or personal vendetta of the complainant.4 The Court of Sessions and the High Court are empowered under section 438 of CrPC to grant the anticipatory bail.

It is pertinent to note that an application for anticipatory bail is maintainable only in case of non-bailable offences.5 A bailable offence, in general, refers to those offences where bail is granted as a matter of right of an accused person, while in the case of non-bailable offences, the grant of bail is the matter of discretion of the court. Such discretionary power must be exercised judiciously, on objective grounds, with reasons to be recorded in writing.5 Under section 2(a) of the CrPC, a bailable offence is an offence shown bailable in the First Schedule, while all offences other than bailable offences are deemed as non-bailable offences.7 The First schedule of CrPC refers to laws other than those mentioned in the Indian Penal Code ["IPC"], and can be used to determine if offences in statutes other than the IPC are bailable or non-bailable,8 if the concerned statute is silent on the nature of such offence.

This article would attempt to answer the question-whether the offences under Section 63 of the Copyright Act and Section 103 of the Trademarks Act are non-bailable to attract the application of the grant of anticipatory bail through various case laws. It would then look at the parameters upon which the court grants an anticipatory bail, and the remedies if such bail gets rejected by the Sessions Court.

1.2 ANTICIPATORY BAIL FOR OFFENCES UNDER COPYRIGHT AND TRADEMARK ACT

Section 63 of the Copyright Act provides that the offence of infringement or abetment of the infringement of copyright in a work "shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years.".9 Similarly, Section 103 of the Trademark Act provides a list of offences such as falsification of any trademark, falsely applying any trademark on any goods or services, making, disposing or having in possession any instrument for falsifying a trademark, falsely adding any trade description or indicating any false place, name, address, etc. on any goods or services, etc. The act of committing any of the offences under Section 103 of the Trademark Act "shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years.".10

To determine if anticipatory bail can be granted for offences under section 63 and section 103 of the Copyright Act and Trademarks Act, respectively, the first point of consideration is whether the offences punishable under the aforementioned sections are bailable or non-bailable. The Copyright or Trademark Act do not provide if the alleged offence is bailable or not, therefore, for that, we have to resort to the Criminal Procedure Code. Part II of the First Schedule of Cr.PC has classified offences under laws other than IPC, into the following manner11-

Category Offence Nature of Offence
I If punishable with death, imprisonment for life, or imprisonment for more than 7 years Cognizable and Non-Bailable
II If punishable with imprisonment for 3 years and upwards but not more than 7 years Cognizable and Non-Bailable
III If punishable with imprisonment for less than 3 years or with fine only Non-Cognizable and Bailable

It can be seen that in both the aforementioned sections the offence is punishable with imprisonment which "shall not be less than six months, but which may be extended to three years." This raises an issue that whether the offence for which the sentence of imprisonment of up to three years can be imposed would fall within category III of Part II of Schedule I of Cr.PC or would it fall within category II of that Part.

Recently, the Bombay High Court in Piyush Subhashbhai Ranipa v. The State of Maharashtra,12 relied on the case of State of Maharashtra v. Shri. Suresh Ganpatrao Kenjale,13 where it was observed that while construing if an offence is bailable or non-bailable, it is not the minimum sentence but the maximum sentence prescribed under the law which is to be considered. The maximum sentence prescribed under both, Section 63 of the Copyright Act and Section 103 of the Trademarks Act, is three years. Pursuant to Category II of Part II of Schedule I, Cr.PC., any offence punishable with "imprisonment for 3 years and upwards." shall be deemed to be Non-Bailable. Thus, the court concluded that the offences under Section 63 and Section 103, respectively, of the Copyright Act and Trademark Act, are non-bailable because in such offences it is possible to impose a sentence of exactly three years. Similar observance was made by Gauhati High Court earlier, where the court interpreted the terms "punishment for which may extend for a term of three years" to mean that such punishment would extend for as long as three years, and hence, the offence would be non-bailable in nature.14

1.3 INGREDIENTS UNDER SECTION 438 OF THE CODE OF CRIMINAL PROCEDURE, 1973

While bail is granted after the arrest of the person in order to release him from the custody of the Police, the purpose of grant of anticipatory bail is to prevent the arrest of the person altogether. Bare perusal of Section 438 of CrPC provides the following ingredients which must be satisfied before the grant of anticipatory bail-

  1. Reason to believe: The person who files an application for anticipatory bail must have a "reason to believe" that he may be arrested for committing an offence;
  2. The offence must be non-bailable;
  3. The grounds on which the "belief" of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested;15
  4. The power to grant anticipatory bail is with the High Court or the Court of Session. Such power must be exercised sparingly after the application of the mind and considering all the relevant material present before the court. Mechanical exercise of this power is not permitted;
  5. The court granting anticipatory bail must specify the offence in respect of which the bail is granted. A blanket order of anticipatory bail is not permitted as it has the capacity to interfere with the rights of the individual of his personal liberty and the duty of the police to investigate the crimes. The term 'blanket order' of anticipatory bail refers to an order that covers or protects any and all kinds of allegedly unlawful activity or eventuality, likely or unlikely regarding which no concrete information can possibly be had.16
  6. The filing of a First Information Report ["FIR"] is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR has not been filed.
  7. This section comes into practice as long as the person has not been arrested. If arrested, the person must proceed under Section 437 or Section 439 for grant of regular bail;17
  8. Consideration by the Court for granting or rejecting the anticipatory bail18-
    1. Nature and gravity of the accusation;
    2. Past record of the person;
    3. Possibility that the person might abscond or flee from justice;
    4. Fake accusation or false allegation for the purpose of humiliating or injuring the reputation of the accused, or to cause his detention on a false charge.
  9. The High Court or Sessions Court may either reject or grant the order for the anticipatory bail, after taking into account the aforementioned conditions. If anticipatory bail is granted, it will be in the nature of an interim order;
  10. The interim order will be subject to a seven days' notice to the Public Prosecutor or Superintendent of Police, who may either accept or reject the bail, upon being satisfied with the contentions of the parties and the requirement of the section herewith;
  11. Conditions may be imposed on the grant of anticipatory bail, under Section 438(2) of CrPC19-
    1. The person will make himself available for interrogation by the Police Officer as and when required;
    2. The person shall not commit an offence similar to the offence for which he is accused, or suspected, or the commission of which is suspected;
    3. The person shall not directly or indirectly make any inducement or threat or promise to any person acquainted with the facts of the case.

The Supreme Court in Gurbaksh Singh Sibba v. State of Punjab,20 held that though the power under Section 438 of CrPc appears to be unguided, it is, in fact, required to be exercised subject to the limitation imposed under Section 437 of CrPC, which deals with the grant of regular bail. In addition to the limitation incorporated under Section 437 of CrPC, the petitioner must also make out a special case for the grant of anticipatory bail. Personal liberty and interest of investigation in the larger public interest should be weighed by the court before granting anticipatory bail.

1.4 PARAMETERS FOR GRANT OF ANTICIPATORY BAIL

In the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors.,21 the Supreme Court, after analyzing various judgements and guidelines, has laid down the following factors and parameters that can be considered by the High Court and the Court of Session while dealing with the application of an Anticipatory Bail-

  1. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before the power is exercised under Section 438 of CrPC;
  2. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
  3. The possibility of the accused's likelihood to repeat similar or other offences;
  4. Where the accusation has been made only with the object of injuring or humiliating the applicant by arresting him/her should also be considered;
  5. The impact of grant of Anticipatory Bail, particularly in case of large magnitude affecting a very large number of people;
  6. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
  7. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely-
    1. no prejudice should be caused to the free, fair and full investigation; and
    2. there should be prevention of harassment, humiliation and unjustified detention of the accused;
  8. The court must consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
  9. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
  10. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.
  11. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.

The Supreme Court has further clarified that these factors are not exhaustive but are rather, illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If the concerned judge exercises a wise discretion, taking into account the entire material on record, then most of the grievances in favor of grant of or refusal of anticipatory bail will be automatically taken care of.22

1.5 REMEDY AGAINST REJECTION OF ANTICIPATORY BAIL BY COURT OF SESSIONS

Section 438 (1B) of CrPC (similar to Section 438(4) of CrPC, Maharashtra) empowers the Public Prosecutor to make an application to the relevant court requesting the presence of the accused applicant seeking anticipatory bail, during the final hearing of such application. The relevant court will compel such accused applicant to be physically present, if such court considers it necessary in the interest of justice. However, the issue with this provision is that if the Anticipatory Bail is rejected and the accused is present in the court during the final order, it will become easier for the police to arrest such accused right after the anticipatory bail is rejected. Such obligatory presence would, in effect, be antithetical to his right to anticipatory bail.23

However, recently, the Bombay High Court has made it sufficiently clear that though the orders mandating physical presence may be passed by the Court of Sessions under Section 438 CrPC, it is the duty of the Court of Session to ensure that the applicant is protected against arrest for a period of 72 hours, should his Anticipatory bail be rejected.24 This period of interim protection against arrest would enable the applicant to approach the High Court and re-agitate his Anticipatory Bail.25

Pursuant to the apprehension of this arrest due to sub-section (1B) of Section 438, the Bombay HC has issued following directions26-

  1. The Prosecutor, while seeking obligatory presence of the accused under Section 438(4) of the Cr.P.C. (Maharashtra Amendment), shall state cogent reasons before the Sessions Court during final hearing of the application for anticipatory bail.
  2. The Sessions Court must consider the application of the accused applicant and pass an order judicially, stating reasons as to why the presence of the accused is necessary, in the interest of justice, at the time of the final hearing of the anticipatory bail application;
  3. If the application for anticipatory bail is rejected by the Court of Sessions upon final hearing and the accused applicant is present before the Sessions Court pursuant to the order under Section 438(4) of the Cr.P.C. (Maharashtra Amendment), it is the obligation of the Sessions Court to extend the interim protection in favor of the accused applicant for a minimum period of three working days, on the same conditions on which interim protection was granted during the pendency of the anticipatory bail application or on such further conditions as the Sessions Court may deem fit, in the interest of justice.
  4. In circumstances where the Court of Sessions deems it fit to grant an extension of interim protection for more than three working days, it shall record reasons for the same in writing, and in any case, such extension of interim protection upon existing conditions or further stringent conditions, shall not exceed a period of seven working days.
  5. While granting the extension of interim protection, the Court of Sessions may impose conditions on the accused, and such accused applicant must abide by all those conditions, failing which such interim protection shall cease to operate with immediate effect.

1.6 CONCLUSION

The question whether an offence under Copyright and Trademarks Act is bailable or non-bailable, and consequently, the plea of anticipatory bail is maintainable or not has come forth before various High Courts. The High Court of Andhra Pradesh27 and Delhi28 have considered the offence under Section 63 and 103, respectively, of Copyright and Trademarks Act, as bailable, where bail is the matter of right for the accused. This suggests the application of anticipatory bail is not maintainable. On the contrary, the High Courts of Gauhati29, Kerala30 and Rajasthan31 regarded these offences as cognizable and non-bailable, where the grant of bail is the discretion of the courts, which has to be exercised sparingly. The courts, hence, considered the application of anticipatory bail to be maintainable, if the offence falls within the ambit of the aforementioned sections.

Similar question was posed before the High Court of Bombay fairly recently, and interestingly, the court has selectively placed reliance on only those authorities which considered these offences as cognizable and non-bailable, and has ignored the contrary views of the Delhi and Andhra Pradesh High Court. The Bombay HC has also ignored the decision of Apex Court in Avinash Bhosale v. Union of India,32 where the offence under section 135(1) of the Customs Act, 1962, prescribing the "punishment for a term which may extend to three years"33 was interpreted as bailable. Though the offence in question was different, the punishment is squarely similar to that mentioned under the Copyright and the Trademarks Act. This makes the decision of Bombay HC appear as per incuriam and not a good law.

It also becomes problematic because declaring infringement of copyright and trademark as cognizable and non-bailable offences ignores the very purpose of these statutes. The essence of Copyright Law is to encourage creativity and provide the public access to copyright-protected works. Similarly, the purpose of trademark law is to reduce the likelihood of confusion amongst the public by distinguishing the goods and services of one trader from those of others. However, interpreting these provisions as non-bailable has the potential to-

  1. discourages creativity and increases self-censorship;
  2. affects the application of the doctrine of fair use.
  3. increase Trademark bullying of small traders by big players in the market.

This is because the question of whether copyright or trademark infringement has taken place or not would be decided only at the later stage of trial, and there would always linger the threat of potential arrest of the accused applicant and increased difficulty in getting bail. Though the concept of anticipatory bail comes to the rescue of the accused applicant, the power is discretionary and has to be exercised judicially, taking into account the entire material on record. Additionally, even if interim anticipatory bail is granted by the Courts, the same is subject to a final order, for which the Court, if deems fit in the interest of justice, has the power to obligate the presence of the accused applicant. If the final anticipatory bail is rejected, the Sessions Courts in India do not provide any protection from the arrest of such allegedly accused person. However, interestingly, only in the State of Maharashtra, the Bombay HC34 has passed certain guidelines to be followed by the Sessions Court while dealing with the final order of application of bail. Pursuant to this decision, the Sessions Court has the power to provide the remedy of interim protection for a minimum of 72 hours to enable the accused to approach the High Court.

On one hand, the Bombay HC has made getting bail difficult by widening the scope of criminal proceedings under Section 63 and 103, respectively, of Copyright and Trade Marks Act, and on the other hand, the decision to grant interim protection has ensured security to the public at large.

Footnotes

1. Gurbaksh Singh Sibbia and Ors. v. State of Punjab, MANU/SC/0215/1980, ¶ 40.

2. The Code of Criminal Procedure, 1973, §438, No. 2, Acts of Parliament, 1973 (India). See also, The Code of Criminal Procedure, 1973, Schedule I, Part II (India).

3. Isha Kapoor and Jai Saini, The Journey of Anticipatory Bail in India, Legal Services India, https://www.legalserviceindia.com/legal/article-4507-the-journey-of-anticipatory-bail-in-india.html.

4. HDFC Bank Ltd. v. J.J. Mannan, AIR 2010 SC 618.

5. Amarnath Vyas v. State of UP, MANU/AP/1214/2006.

6. Government of India, Law Commission of India, 41st Report, 1972, ¶ 31.

7. The Code of Criminal Procedure, 1973, §2, cl.(a), No. 2, Acts of Parliament, 1973 (India). See also, The Code of Criminal Procedure, 1973, Schedule I, Part II (India).

8. The Code of Criminal Procedure, 1973, §2, cl. (a) (India). See also, The Code of Criminal Procedure, 1973, Schedule I, Part II (India).

9. The Copyright Act, 1957, §63, No. 14, Acts of Parliament, 1957 (India).

10. The Trade Marks Act, 1999, § 103, No. 47, Acts of Parliament, 1999 (India).

11. The Code of Criminal Procedure, 1973, Schedule I, Part II (India).

12. MANU/MH/0593/2021.

13. 1995 Cri.L.J. 2478.

14. Jitendra Prasad Singh v. State of Assam, (2003) 26 PTC 486 GAU.

15. Gurbaksh Singh Sibba v. State of Maharashtra and Ors., MANU/SC/0215/1980, ¶ 43.

16. Gurbaksh Singh Sibba v. State of Maharashtra and Ors., MANU/SC/0215/1980, ¶ 44.

17. Gurbaksh Singh Sibba v. State of Maharashtra and Ors., MANU/SC/0215/1980, ¶ 44.

18. The Code of Criminal Procedure, §438, cl. (3) (India).

19. The Code of Criminal Procedure, §438, cl. (2) (India).

20. MANU/SC/0215/1980.

21. MANU/SC/1021/2010, ¶122.

22. Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors., MANU/SC/1021/2010, ¶125.

23. Government of India, Law Commission of India, 203rd Report, 2007.

24. Ankoosh Mehta, Aviral Sahai, King Dungerwal, Sessions Court Rejects Anticipatory Bail? You may Still be Protected for 72 Hours, 2021 SCC OnLine Bom 2192, https://www.scconline.com/blog/post/2021/09/13/sessions-court-rejects-anticipatory-bail-you-may-still-be-protected-for-72-hours/#_ftn8. See also, Sameer NarayanRao Paltewar v. The State of Maharashtra, MANU/MH/2251/2021.

25. Ankoosh Mehta, Aviral Sahai, King Dungerwal, Sessions Court Rejects Anticipatory Bail? You may Still be Protected for 72 Hours, 2021 SCC OnLine Bom 2192, https://www.scconline.com/blog/post/2021/09/13/sessions-court-rejects-anticipatory-bail-you-may-still-be-protected-for-72-hours/#_ftn8. See also, Sameer NarayanRao Paltewar v. The State of Maharashtra, MANU/MH/2251/2021.

26. Sameer NarayanRao Paltewar v. The State of Maharashtra, MANU/MH/2251/2021.

27. Amarnath Vyas v. State of UP, MANU/AP/1214/2006.

28. Anurag Sanghi v. State & Ors., MANU/DE/3999/2019; State Govt. of NCT Of Delhi v. Naresh Kumar Garg, MANU/DE/0706/2013.

29. Jitendra Prasad Singh v. State of Assam, (2003) 26 PTC 486 GAU.

30. C.K.Boban v. The Union of India, MANU/KE/0121/2005; Abdul Sathar v. Nodal Officer, Anti-Piracy Cell & Ors., MANU/KE/0490/2007.

31. Nathu Ram and Ors. v. State of Rajasthan and Anr., MANU/RH/0039/2021.

32. (2007) 14 SCC 325.

33. The Customs Act, 1962, §135(1), No. 52, Acts of Parliament, 1962 (India).

34. Sameer NarayanRao Paltewar v. The State of Maharashtra, MANU/MH/2251/2021.

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