Let’s assume that an individual named ‘Z’ has been arrested – after successful raid by Police officials (under Section 64 of the Copyright Act, 1957) – for allegedly reproducing and selling infringing copies of books of a person named ‘X’, who claims to be the author of those books. It has been alleged that Z has made a gain of Rs. 50lacs in the course of his trade by selling the infringing copies. Z has been remanded to police custody by a Magistrate’s Court.
Z approaches you for his bail. How do you prepare his bail application?
Section 63 of the Copyright Act, 1957 provides that a person may be sentenced to imprisonment of six months, extendable upto three years, and with fine for infringement of copyright in a work. A bare reading of Section 63 along with Part II of First Schedule of The Code of Criminal Procedure, 1973 provides that copyright infringement is a cognizable offence and a non-bailable one. [I found this Manupatra article on Whether Infringement of Copyright is a Cognizable Offence? pretty useful.] Therefore, bail in such cases is a matter of discretion of the Court and not the right of the accused.
As Z‘s attorney, you must prepare his bail application in such a way that it does not get rejected. In such cases what may be done is that the bail application may be directly made to the High Court under Section 439 of The Code of Criminal Procedure, 1973. It is also an established precedent that a regular bail application can be directly made at a Court of Sessions or High Court. [See a LiveLaw article here.]
The following is a checklist of the documents that you will require for filing the regular bail application in High Court –
- Urgent Application
- Memo of Parties
- Bail Application stating the grounds
- Affidavit in support of Bail application
- Copy of FIR
- Copy of Charge Sheet
- Documents on which the accused is relying to secure bail (eg. medical bills, family obligations)
- Non-filing Certificate
- Exemption (Not compulsory)
- Affidavit (Not compulsory)
- A Performa is a document in which you mention all the relevant information regarding your case.
- An Urgent application is made so that your matter is listed as soon as possible. You may accrue some additional Court fee for filing this application.
- Some sample bail application may be accessed from here.
- A Non-filing certificate is for an affirmation from your end that the matter has not been filed anywhere else.
- An Exemption is an application filed for exemption of appearance of accused in the Court. The exemption application needs to be supported by an affidavit. It is not necessary to file this application in every bail application. It is the discretion of the Court to grant exemption or not.
A step by step procedure of how the matter is taken up after filing the application may be read from here.
A sample bail application is available here.
Image from here.