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January 31, 2022

What are the conditions for grant of an anticipatory bail in GST?

by CA Shivam Jaiswal in Legal Court Judgement

What are the conditions for grant of an anticipatory bail in GST?

Introduction:

In a very interesting case of Faruk Alam v. State of Assam [2021] (Gauhati) we will understand about anticipatory bail and conditions for granting an anticipatory bail.

What is an Anticipatory bail?

Anticipatory bail, as the name suggests, is bail granted to a person in anticipation and apprehending arrest When a person has reason to believe that he may be arrested on the accusation of committing a non-bailable offence then he can move to High Court or the Court of Session u/s 438 of CrPC for anticipatory bail. Anticipatory bail can be obtained by a person who anticipates arrest. Hence, anticipatory bail is a direction to release a person on bail, even before the person is arrested.

In the case of Faruk Alam v. State of Assam [2021] (Gauhati)

Facts of the case:

  1. An application under Section 438 of the Cr. PC. seeking pre-arrest bail, in connection with Manikpur PS Case No. 438/2020 registered under Section 420/468/471/34 of the IPC has been filed by the petitioner.
  2. The petitioner has produced a copy of the E-way Bill and stated that E-way Bills allegedly transmitted by the petitioner in connection with the coal involved in this case are genuine and not fake.
  3. The petitioner is concerned with only 1 truck carrying coal, out of the 5 trucks involved in this case. The petitioner has taken the plea that he has been looking for the coal depot of M/S P.M. Enterprise and the actual proprietor of this coal depot is one Mostafijur Rahman. He has submitted that the petitioner had sent only one single E-way Bill to the transport company from his mobile phone.
  4. The claim of E way bill is thereby genuine. Since it has been submitted that the E-way bill, mentioned above, is genuine, it is the Investigating Police Officer who will investigate to ascertain the genuineness or otherwise of the same.

Issues raised:

Under what conditions can an application under Section 438 of the Cr. PC. seeking pre-arrest bail be granted?

Reference Section:

Section 438: Direction for grant of bail to person apprehending arrest.

1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including–

  • (i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

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