HRIDAYANANDAN SHARMA Vs. STATE OF ASSAM

JUDGEMENT

(1.) There being a conflict of opinion between two learned Single Judges of this Court on the question as to whether an offence, punishable with imprisonment for a term which may extend to 3 years, is bailable or non- bailable offence, the aforesaid question which has also arisen in the present case, has been referred to a Larger Bench and that is how the matter is before us.

(2.) Section 68 A of the Copyright Act, 1957 provides that an offence U/S.52A of the said Act is punishable with imprisonment which may extend to 3 years as well as fine also. Under Part-II contained in Schedule-I of the Code of Criminal Procedure, an offence under any special law, punishable with imprisonment for less than 3 years or with fine only, is bailable. The learned Single Judge hearing the present bail application took the view that as for an offence U/S 68A of the Copyright Act, the punishment may be 3 years, it has to be understood that the said offence is non-bailable. The aforesaid view was taken by the learned Single Judge in another case, i.e., in the case of Jitendra Prasad Singh Vs.- State of Assam reported in 2002 (3) GLT 241. However, another Single Bench has taken a contrary view in the case of Tapan Biswas -Vs- State of Assam, reported in 2001 (3) GLT page 13, holding the offence under Section 7(1) (a) of the Cinematograph Act of 1952, which is also punishable with imprisonment for a term, which may extend to 3 years or with fine to be bailable. As the aforesaid conflicting views emanate from a different understanding of the ratio of the law laid down by the Apex Court in the case of Rajib Chaudary - Vs- State (NCT) of Delhi, reported in 2001 (5) SCC page 34, the answer to the question raised, therefore, would lie in trying to ascertain what is the correct ratio laid down in the above noted decision of the Apex Court.

(3.) The question that arose in Rajib Chaudhary's case (supra) before the Apex Court is whether a person accused of an offence under Section 386 IPC could be detained in custody for the period specified under Clause (i) of proviso (a) to Section 167(2) Cr. P.C. without the charge-sheet being submitted. For a better understanding of the question involved, the provisions of Section 167(2) proviso (a)(i) and (ii) and Section 386 of the Indian Penal Code may be usefully extracted herein below :