The Double-Edged Sword Of IP Enforcement: The Future Of Criminal Copyright Litigation Under The BNSS Framework

Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India

Intellectual property law is fundamentally a tightrope act. On one side, the legal framework must aggressively shield the exclusive rights of creators and innovators secure the commercial dividends of their labor. On the other side, the law must prevent the monopolization of ideas from stifling follow-on innovation and legitimate commerce.To maintain this delicate equilibrium, India’s Copyright Act, 1957¹, equips rightsholders with two distinct arsenals. Civil remedies such as injunctive relief, damages, and accounts of profits, exist to make the aggrieved party whole. Criminal remedies, conversely, serve an entirely different master. Provisions imposing imprisonment and fines are not designed to compensate the victim; they are statutory sledgehammers intended to deter intentional, commercial-scale piracy and organized intellectual property theft. For decades, however, the criminal enforcement of copyright in India was paralyzed by a glaring procedural enigma. The question seemed deceptively simple: If an entity infringes your copyrighted work, do the police possess the jurisdiction to register a First Information Report (FIR) and arrest the accused without a warrant?

Historically, the answer depended entirely on which High Court had territorial jurisdiction over the dispute. This judicial schizophrenia ended with the Supreme Court’s landmark ruling in Knit Pro International v. State (NCT of Delhi) (2022)². By definitively ruling that offences under Section 63 of the Copyright Act are cognizable and non-bailable, the Supreme Court did not merely settle a procedural debate it fundamentally rewired the leverage dynamics in every intellectual property dispute across the country.  Now, as we navigate the post-2024 landscape governed by the Bharatiya Nagarik Suraksha Sanhita (BNSS), understanding the mechanics, implications, and strategic risks of the Knit Pro judgment is no longer optional for corporate counsel. It is an absolute imperative.

Statutory Framework

The primary penal provision for copyright infringement is Section 63 of the Copyright Act. It mandates that any person who "knowingly infringes or abets the infringement" of a copyright shall be punishable with imprisonment "which shall not be less than six months but which may extend to three years," alongside a monetary fine.The statutory friction arises when one attempts to map that specific punishment parameter "may extend to three years" onto the procedural classification framework. Because the Copyright Act itself is silent on whether Section 63 is cognizable (allowing police to arrest without a warrant) or non-cognizable (requiring a Magistrate's prior authorization), courts had to rely on the residuary schedules of the procedural code.

Historically, this was governed by Part II of the First Schedule to the Code of Criminal Procedure, 1973 (CrPC)³. Today, an identical framework is preserved in Table II of the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)⁴. Both schedules categorize offences under "other laws" into three distinct tiers based on their maximum prescribed punishment:

If a trial judge can lawfully award a maximum sentence of exactly three years, does that mean the punishment is "three years and upwards"? Or, because the standard, everyday sentence will likely fall short of the absolute maximum, does the offence fall into the "less than three years" bucket?Before the Supreme Court's intervention, the jurisprudence was hopelessly fractured. The High Courts of Assam, Kerala, and Rajasthan looked at the "may extend to" phrasing and concluded the offence was non-cognizable and bailable. Conversely, the High Courts of Andhra Pradesh and, in certain early rulings, Delhi, held it was cognizable. Consequently, the exact same act of enterprise software piracy could trigger an immediate, devastating police raid in Hyderabad, but require weeks of cumbersome judicial runaround in Jaipur.The Procedural Distinction: In a cognizable case, the police are statutorily empowered to register an FIR and launch an investigation immediately upon receiving a complaint. In a non-cognizable case, they are legally barred from investigating without an express order from a Magistrate under Section 155(2) of the CrPC (now Section 174(2) of the BNSS)⁵ a delay that is often fatal to securing volatile digital evidence or seizing physical counterfeits.

Facts

The litigation that ultimately broke the deadlock originated not as a grand constitutional debate, but as a standard commercial dispute over counterfeit goods. M/s Knit Pro International, a prominent manufacturer of knitting needles and related accessories, discovered that a competitor was allegedly manufacturing and distributing counterfeit products that blatantly infringed on Knit Pro's registered copyright. Frustrated by the rampant infringement, Knit Pro bypassed the civil courts and filed an application under Section 156(3) of the CrPC⁶ before the Chief Metropolitan Magistrate (CMM), seeking a judicial directive for the police to register an FIR.The CMM reviewed the application, found prima facie merit in the allegations, and directed the local Station House Officer to register the FIR under Sections 51, 63, and 64 of the Copyright Act, read with Section 420 (cheating) of the Indian Penal Code⁷.The accused immediately filed a writ petition in the Delhi High Court to quash the criminal proceedings. Their defense was strictly procedural: they argued that Section 63 was a non-cognizable and bailable offence. Therefore, the police lacked the inherent jurisdiction to register an FIR or investigate without following the much slower, non-cognizable procedural route.The Delhi High Court, aligning with the more lenient interpretations of the procedural schedule, agreed with the accused. The High Court held that since the punishment "may extend to" three years, it should not be construed as a strict three-year minimum, thereby dropping it into the third category (non-cognizable). The High Court quashed the FIR and terminated the criminal proceedings entirely.Knit Pro International filed a Special Leave Petition before the Supreme Court. The stage was set for a definitive resolution on the statutory language. When the Division Bench of the Supreme Court took up the matter, it eschewed expansive policy debates regarding the economic impact of piracy or the philosophical nature of intellectual property. Instead, the Court applied a rigorous textual scalpel, relying heavily on the literal rule of statutory interpretation.The Court’s reasoning was anchored in an objective mathematical reading of the statute. The Bench placed Section 63 ("imprisonment which may extend to three years") side-by-side with Category 2 of the First Schedule ("imprisonment for three years and upwards").The Supreme Court concluded that because a competent criminal magistrate possesses the lawful jurisdiction to impose a maximum sentence of exactly three years upon conviction, the offence objectively cannot be categorized as one punishable by "less than three years." If the statutory ceiling permits a three-year sentence, the offence inevitably triggers the threshold for Category 2 classification. Therefore, the offence is unequivocally cognizable and non-bailable.The Rejection of Rakesh Kumar PaulCounsel for the accused mounted a robust defense relying on the Supreme Court's prior judgment in Rakesh Kumar Paul v. State of Assam⁸. In that case, the Court had interpreted the phrase "not less than 10 years" in the context of granting default bail under Section 167(2) of the CrPC. The defense argued that similar leniency should apply to the interpretation of Section 63.The Supreme Court swiftly dismantled this argument. The Bench distinguished Rakesh Kumar Paul, noting that it dealt with an entirely different statutory context the fundamental right to default bail upon the expiration of an investigative timeline. The interpretation of a procedural timeline for default bail has no bearing on the plain, unambiguous language governing the classification of offences in the First Schedule. Where the language of the schedule is clear and unambiguous, the Court noted, there is no room for importing external jurisprudential leniency.Instead, the Court implicitly favored the rationale found in cases like Narcotics Control Bureau v. Sambhu Sonkar⁹, establishing that for the purposes of classification, it is the maximum permissible punishment authorized by the legislature that dictates the procedural tier, not the minimum or the average sentence likely to be awarded by a trial judge. The Section 64 ImperativePerhaps the most critical, yet under-discussed, aspect of the Supreme Court’s reasoning was how its classification perfectly harmonized Section 63 with the enforcement machinery of the wider Copyright Act specifically, Section 64.Section 64 grants extraordinary, draconian power to police officers (not below the rank of Sub-Inspector). If an officer is satisfied that an offence under Section 63 in respect of the infringement of copyright in any work has been, is being, or is likely to be committed, they are empowered to seize all infringing copies of the work without a warrant.If the Supreme Court had upheld the Delhi High Court’s view that Section 63 was non-cognizable, it would have birthed a massive, irreconcilable statutory contradiction. By definition, a non-cognizable offence prohibits the police from investigating without a Magistrate's express permission. Yet, Section 64 explicitly empowers them to conduct warrantless seizures based on their own satisfaction.Classifying Section 63 as non-cognizable would have functionally paralyzed Section 64. It would render the police's warrantless seizure powers legally unviable, effectively neutering the legislature's intent to permit rapid, disruptive anti-piracy raids. By ruling that Section 63 is cognizable, the Supreme Court ensured that the substantive penal provision and the procedural enforcement mechanism work smoothly in tandem.The Transition to the BNSS: The Jurisprudence Holds FirmFor practitioners operating in the current legal landscape (post-July 2024), it is vital to recognize how the Knit Pro ratio interacts with the overhaul of India's criminal justice system. The replacement of the CrPC with the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and the Indian Penal Code with the Bharatiya Nyaya Sanhita (BNS), 2023, represented a seismic shift in criminal procedure.However, regarding the classification of special statutes like the Copyright Act, the BNSS preserves the exact architecture of its predecessor. Table II of the First Schedule to the BNSS is perfectly pari-materia (identical in subject matter and language) to Part II of the First Schedule to the CrPC. The categories remain untouched: Punishable with death, imprisonment for life, or imprisonment for more than 7 years. Punishable with imprisonment for 3 years, and upwards but not more than 7 years. Punishable with imprisonment for less than 3 years or with fine only. Consequently, recent High Court jurisprudence such as the Orissa High Court's ruling in Ramesh Chandra Sahoo v. State of Orissa ¹⁰(2025) has explicitly reaffirmed that the Supreme Court's logic in Knit Pro applies flawlessly to the BNSS. Copyright infringement under Section 63 remains firmly entrenched as a cognizable and non-bailable offence under the new procedural code. The Anti-Piracy Arsenal: Why Rightsholders are Cheering From the perspective of authors, enterprise software developers, media conglomerates, and digital publishers, the Knit Pro judgment stands as the most vital procedural victory of the decade. It equips corporate investigators with the procedural teeth necessary to combat agile, modern piracy.In the trenches of intellectual property enforcement, time is the ultimate currency. If a multinational software company tracks down a server farm distributing cracked enterprise licenses, or a streaming platform identifies a syndicate broadcasting unauthorized digital content, they cannot afford to wait weeks for a Magistrate to review a private complaint, record pre-summoning evidence, and eventually issue an investigative directive. By the time a non-cognizable process bears fruit, the servers will be wiped, the digital footprints erased, and the infringing syndicate will have reconstituted under a new shell entity.  By cementing the offence as cognizable, the police are mandated to register an FIR immediately upon receipt of a credible complaint (now under Section 173 of the BNSS)¹¹. They can instantly mobilize, conduct raids under Section 64 of the Copyright Act, secure volatile digital evidence, seize physical counterfeits, and freeze illicit operations before the infringers have an opportunity to cover their tracks.Furthermore, the non-bailable designation fundamentally alters the risk calculus for organized pirates. "Non-bailable" does not imply that an accused cannot be granted bail; rather, it means that bail is no longer a matter of right that can be secured directly from the arresting officer at the police station. The accused must be produced before a judicial magistrate, where they must formally apply for bail (under Section 480 of the BNSS)¹².The very real threat of spending several days in judicial custody while a bail application is contested serves as a massive, tangible deterrent. It elevates copyright piracy from a minor "cost of doing business" to a high-stakes criminal gamble that carries severe personal liberty risks for the directors and operators of infringing entities.

The Chilling Effect: The Weaponization of Criminal Law. However, the Knit Pro judgment is profoundly a double-edged sword. While it provides an exceptional weapon against blatant, commercial-scale piracy, it introduces a severe, almost existential litigation risk into the realm of everyday corporate commerce.It is crucial to recognize that not all copyright infringement is born of malicious piracy orchestrated in a clandestine warehouse. In the modern tech economy, a vast majority of intellectual property disputes stem from complex, messy, and inherently civil business relationships:Software Over-Deployment: An enterprise purchases a SaaS license for 1,000 seats but, due to an oversight by their IT department, deploys the software to 1,200 employees. Technically, this is an unauthorized reproduction of the code—an infringement. Media Distribution Holdovers: A streaming platform continues to host a licensed film for three weeks after their geographic distribution rights have technically expired due to a backend system failure.Joint Authorship and Founder Disputes: Two co-founders write a proprietary codebase together. Following a bitter falling out, one founder exits the company and disputes the remaining entity's right to continue utilizing the code without a formal assignment agreement. Royalty and Licensing Breaches: A publisher falls behind on royalty payments to an author, arguably breaching the terms of their exclusive publishing agreement. Historically, these disputes were strictly civil matters. The aggrieved party would file a commercial suit seeking an injunction, claiming damages for breach of contract, or demanding an accounting of profits. It is a slow, methodical, document-heavy process fought with spreadsheets, forensic accounting, and contract interpretation. Post-Knit Pro, the landscape has drastically shifted. Because Section 63 is now universally recognized as a cognizable and non-bailable threat, there is a high likelihood of aggressive litigants bypassing the civil courts entirely. Why spend years and millions in legal fees fighting a civil injunction when you can file a criminal FIR and have the police arrive at your former business partner's corporate headquarters?

The threat of an immediate, non-bailable arrest can force an opposing party into a highly unfavorable, panicked settlement. It allows well-funded corporations to weaponize the criminal justice system, using the threat of incarceration as a coercive negotiation tactic in what are fundamentally civil contract disputes.The Mens Rea Safeguard: The Only Viable Shield, If the Indian legal system is to prevent this chilling effect from paralyzing legitimate commerce and tech innovation, the judiciary, investigating agencies, and defense counsel must place a renewed, stringent focus on the mens rea (criminal intent) requirement explicitly codified in the statute.Section 63 of the Copyright Act does not penalize strict liability infringement; it strictly penalizes only those who "knowingly" infringe.A bona fide dispute over the interpretation of an ambiguous licensing clause lacks this requisite criminal intent. Accidental over-deployment of software lacks this intent. If a corporate entity genuinely, albeit mistakenly, believes they have a legal right to utilize the copyrighted work based on a contested contract, the matter belongs in a civil commercial court, not a police precinct. Moving forward, corporate defense counsel must be highly proactive in filing petitions to quash frivolous FIRs (under Section 528 of the BNSS, formerly Section 482 CrPC)¹³. The primary defense strategy must hinge on demonstrating that the dispute is overwhelmingly civil in nature, thereby negating the mens rea required to sustain a criminal prosecution under Section 63. The Supreme Court has repeatedly held in cases like State of Haryana v. Bhajan Lal¹⁴ that criminal proceedings instituted with an ulterior motive to settle a civil dispute amount to an abuse of the process of law and must be quashed. Strategic Imperatives for Corporate Counsel for General Counsel and law firm partners navigating this elevated risk environment, relying entirely on post-FIR quashing petitions is a perilous strategy. Risk mitigation must begin at the drafting table.To insulate clients from the weaponization of Section 63, corporate counsel should implement the following strategic adjustments to their IP agreements, software licenses, and employment contracts:Mandatory Escalation and Cure Periods: Embed rigorous, multi-tiered dispute resolution clauses that mandate a 30- to 60-day notice and cure period for any alleged over-deployment or unauthorized use of IP. If a party invokes a contractual cure period, it severely undermines any subsequent claim of "knowing" or malicious criminal infringement.Arbitration and Civil Safe Harbors: Explicitly state within the Master Services Agreement (MSA) or IP Assignment that all disputes arising from the scope, deployment, or royalty calculation of the licensed IP shall be deemed civil commercial disputes subject exclusively to arbitration. While parties cannot contract out of criminal law, such clauses serve as powerful evidence in a quashing petition that the complainant initially viewed the relationship through a purely civil lens.Audit Rights over Immediate Termination: Prefer robust software audit clauses over immediate termination rights. If an enterprise can audit usage and invoice for over-deployment, it frames the unauthorized use as a reconcilable billing issue rather than a criminal theft.

Conclusion

The Supreme Court’s judgment in Knit Pro International v. State (NCT of Delhi) is not a mere procedural footnote; it is a definitive statement on the gravity of intellectual property rights in India’s economic framework. By anchoring the interpretation of Section 63 in the plain text of the procedural schedule, the Court has provided much-needed uniformity to copyright enforcement, seamlessly aligning it with the robust machinery of the BNSS. As India's digital economy continues its rapid expansion—fueled by AI innovation, massive software development, and digital content creation—this robust criminal enforcement mechanism is essential for protecting the integrity of creative assets. It serves as an unyielding sword against the syndicates that profit from organized piracy. However, the true legacy of this judgment will not be measured solely by the piracy it stops, but by how adeptly the judiciary and corporate counsel prevent this newly sharpened sword from cutting into legitimate, good-faith commerce. The era of treating copyright infringement as a minor civil grievance is officially over. In boardrooms and police stations alike, intellectual property is now a matter of liberty.

By

Vijay Pal Dalmia, Advocate

Supreme Court of India & Delhi High Court

Email id: vpdalmia@vaishlaw.com  

Mobile No.: +91 9810081079

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And

Aditi Jain,

5th Year, BA, LL.B.(Hons), UPES, Dehradun

Footnotes

^{1 Copyright Act 1957 (India).}

^{2 Knit Pro International v State of NCT of Delhi Criminal Appeal No 807 of 2022 (Supreme Court of India, 20 May 2022) 2022 MANU/SC/0708/2022.}

^{3 Code of Criminal Procedure 1973 (India), sch 1, pt II (CrPC).}

^{4 Bharatiya Nagarik Suraksha Sanhita 2023 (India), sch 1, tbl II (BNSS).}

^{5 Code of Criminal Procedure 1973 (India), s 155(2); Bharatiya Nagarik Suraksha Sanhita 2023 (India), s 174(2).}

^{6 Code of Criminal Procedure 1973 (India), s 156(3).}

^{7 Indian Penal Code 1860, s 420.}

^{8 Rakesh Kumar Paul v State of Assam (2017) 15 SCC 67.}

^{9 Narcotics Control Bureau v Sambhu Sonkar AIR 2001 SC 830.}

^{10 Ramesh Chandra Sahoo v State of Orissa MANU/OR/1248/2025.}

^{11 Code of Criminal Procedure 1973 (India), s 173; Bharatiya Nagarik Suraksha Sanhita 2023 (India), s 173.}

^{12  Bharatiya Nagarik Suraksha Sanhita 2023 (India), s 480 (equivalent to Code of Criminal Procedure 1973 (India), s 439).}

^{13 Bharatiya Nagarik Suraksha Sanhita 2023 (India), s 528 (equivalent to Code of Criminal Procedure 1973 (India), s 482).}

^{14  State of Haryana v Bhajan Lal 1992 Supp (1) SCC 335.}

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