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May 21, 2021

Applicant enlarged on anticipatory bail in case he was not a habitual offender: High Court Allahabad

by Mahesh Mara in GST, Legal Court Judgement

Applicant enlarged on anticipatory bail in case he was not a habitual offender: High Court Allahabad

Fact and Issue of the case

This anticipatory bail application has been filed praying for grant of anticipatory bail to the applicant with reference to summon/notice dated 30.01.2020 issued by Superintendent (A.E.) C.G.S.T. & Central Excise, Agra during the pendency of the case before the C.G.S.T. & Central Excise, Agra.

The applicant has submitted that u/s 70 (1) of the Central Goods and Services Act, 2017, (hereinafter referred to as the ”C.G.S.T. Act’), the proper officer has power to summon a person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any enquiry in the same manner, as provided in the case of a civil court under the provisions of the Code of Civil Procedure, 1908. Section 70 (2) of the C.G.S.T. Act provides that every such inquiry referred to in sub-section (1) of Section 70 shall be deemed to be “judicial proceedings” within the meaning of Section 193 and Section 228 of the Indian Penal Code. It has been submitted that the applicant has been summoned and he is ready to appear before the Proper Officer, C.G.S.T. Department, Agra to record his statement and to produce all documents but he is under apprehension that when he goes for the same, he may be detained and sent to jail. The apprehension is covered u/s 41 (A) of Cr.P.C. The maximum punishment u/s 132 (1) (b) of C.G.S.T. Act is 5 years. The applicant will cooperate with the inquiry but he will be definitely arrested and sent to jail. He will furnish reliable sureties, if granted anticipatory bail, as per the direction of this Court before the C.G.S.T. Department. The applicant has been falsely implicated in this case on account of business rivalry on the allegation that he is running fake firms and from his possession, bogus invoices are alleged to have been recovered.

Observation of the court

After considering the aforesaid authorities the court has concluded that the following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. 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; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused’s likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. 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; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

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.

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. 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.

These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualise all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the concerned judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available.

Irrational and Indiscriminate arrest are gross violation of human rights. In Joginder Kumar’s case (supra), a three Judge Bench of this Court has referred to the 3rd report of the National Police Commission, in which it is mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

The judgement cited on behalf of the learned counsel for the department has not considered any of the relevant authorities on the point. Respondents had found from the documentary evidence that the company has collected service taxes for number of years amounting to Rs. 4.80 crores but the same was not deposited. Therefore, the writ petition was dismissed. There was evidence of prior tax evasion against the petitioner. In the present case, there is no such allegation against the applicant. In that case, the petitioner was avoiding notice u/s 14 of the Central Excise Act, 1944 and was also having proven record of tax evasion. Therefore, this Court rightly dismissed the writ petition filed praying for direction to not to arrest the petitioner on his appearance before the Proper Officer in the inquiry for alleged evasion of service tax in violation of Section 89 (1) (ii) of the Finance Act, 1944 r/w Section 174 of the C.G.S.T. Act, 2017. In the judgement of the High Court for the State of Telangana, Hyderabad, relied upon by the learned counsel for the department, it was a case of regular bail and not anticipatory bail and the petitioner was already arrested.

Relying upon the judgement of the Punjab and Haryana High Court, in the case of Akhil Krishan Maggu (supra), this Court finds that the applicant has no prior criminal antecedents brought on record. His implication can be made under cognizable and non-bailable offences u/s 132 (5) of the C.G.S.T. Act, if the allegations are found to be correct. The applicant has not given any statement in inquiry till date due to fear of arrest. As disclosed above, the personal liberty guaranteed under Article 21 of the Constitution of India is a fundamental right and, in every case, arrest is not necessary. Under Section 438 Cr.P.C., where the implication of a person is for a non-bailable offence, he can apply for anticipatory bail. If the applicant cooperates with the inquiry, there is no requirement of his arrest. The applicant is having his own address of residence and business. He can give surety ensuring his appearance. The applicant does not appears to be habitual offender, prosecuted or convicted earlier. Therefore, he deserves to be granted limited protection for the purpose of conclusion of inquiry by the Proper Officer.

Conclusion

The court ruled in favour of the applicant and directed that the applicant, Nitin Verma, shall be enlarged on anticipatory bail for a period of six weeks or till the inquiry is concluded by the Proper Officer under Section 70 (1) of the C.G.S.T. Act, whichever is earlier, on execution of a personal bond of Rs. 5,00,000/- and two sureties of the like amount before the Proper Officer concerned on the following conditions:-

(i) The applicant shall make himself available for interrogation by the proper officer as and when required;

(ii) The applicant shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade from disclosing such facts to the Court or to any officer;

(iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the proper officer concerned;

(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad;

(v) The concerned Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of Allahabad High Court and shall make a declaration of such verification in writing.

(vi) In case the applicant fails to appear on any date fixed by the Proper Officer under the C.G.S.T. Act, for any reason whatsoever, this anticipatory bail application shall stand automatically rejected and the protection given to the applicant will cease to have any effect.

If any unforeseen circumstances arise, the Proper Officer would be at liberty to file appropriate application before this Court for cancellation of anticipatory bail granted to the applicant.

Read the full order of court from below

Applicant-enlarged-on-ancipatory-bail-in-case-he-was-not-a-habitual-offender-prosecuted-or-convicted-earlier

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