Jitendra Prasad Singh vs State of Assam

I.A. Ansari, J.—This is an application made u/s 438, Cr.P.C. seeking pre-arrest bail by the petitioner, namely, Sri Jitendra Prasad Singh in connection with Azara P.S. Case No. 64/2002 u/s 63 of Copyright Act.

Perused the above application and the materials on record. Also perused the relevant case diary.

Heard Mr. B.K. Mahajan, learned counsel for the petitioner, and Mr. Noor Mohammed, learned Public Prosecutor, Assam for the respondent.

It is submitted, on behalf of the petitioner, that since the offence alleged to have been committed by the petitioner is punishable u/s 63 of the Copyright Act (hereinafter referred to as "the said Act") and the punishment prescribed therefore is upto 3(three) years, the same may be treated as a bailable offence and this Court may make necessary observations in this regard so that the petitioner may, if need be, apply for regular bail in the learned Court below. Alternatively, it is submitted that even if it is treated that the offence punishable u/s 63 of the said Act is non-bailable, the petitioner is wholly innocent and he may be granted the benefit of pre-arrest bail.

The question, therefore, which needs to be, first, considered is this whether the offence punishable u/s 63 of the said Act is a bailable offence ?

While considering the above question, it is of utmost importance to note that the offence alleged to have been committed by the petitioner is covered by Section 63 of the said Act and it is punishable with imprisonment for a term, which may extend to three years. By virtue of Part II, contained in Schedule 1 to the Code of Criminal Procedure, an offence under the other special law, if punishable with imprisonment for less than three years or with fine only, is non-cognizable, but bailable. However, if the offence is punishable with imprisonment for three years and upward but not more than seven years, the same shall be non-bailable.

What is, now, essential to note is that the expression "punishable with imprisonment for a term, which may extend to three years", is distinctly different from the expression "if punishable with imprisonment for less than three years" inasmuch as the expression namely, "punishable with imprisonment for a term, which may extend to three years", will mean that the imprisonment can be for a term as long as three years, but the expression, "punishable with imprisonment for less than three years" will mean that the offence is punishable with imprisonment for a period, which is less than three years. Viewed from this angle, the offence u/s 63 of the said Act is a non-bailable offence. The provisions of Section 438, Cr.P.C. can, therefore, be applied, if need be, in respect of offence punishable u/s 63 of the said Act.

However, in the case at hand, in view of the fact that the case diary reveals sufficient incriminating materials against the petitioner, I do not find that the petitioner can be given the benefit of pre-arrest bail.

Considering, therefore, the matter in its entirety, the prayer for pre-arrest bail made by the petitioner is hereby rejected.

Send back forthwith the case diary alongwith a copy of this order.

With the above observations and directions, this bail application shall stand disposal of accordingly.