Case Law Details

Case Name : Neeraj Ramkumar Tiwari Vs State of Gujarat (Gujarat High Court)
Appeal Number : R/Special Criminal Application No. 5777 of 2020
Date of Judgement/Order : 15/03/2021
Related Assessment Year :

Neeraj Ramkumar Tiwari Vs State Of Gujarat (Gujarat High Court)

On 03.09.2020, the petitioner filed Criminal Misc.Application No.12831 of 2020 for bail under Section 439. However, pending the bail application, statutory period of 60 days for registering the complaint under the provisions of the GST Act had expired and therefore, on 28.09.2020, the petitioner preferred an application for default bail before the Court of Magistrate, Vadodara being Criminal Misc.Application No.2636 of 2020. Considering the provisions of Section 167(2), the Magistrate by order dated 01.10.2020, allowed the application for default bail, in view of the fact that within the period stipulated, the investigation was not completed and the complaint was not filed. However, while allowing the application for default bail, the Magistrate was pleased to impose condition of depositing an amount to the extent of 50% of the alleged amount for which prosecution was launched, i.e. Rs.9,43,50,223/-. The question therefore before the Court is, while considering the case for default bail of the applicant, whether condition can be imposed lime the condition imposed in the present case for depositing 50% of the amount for which prosecution was launched.

In view of the aforesaid and considering the language of Section 167(2) of the Criminal Procedure Code, i.e. on expiry of the statutory period to complete investigation, an indefeasible right is created in favour of the accused person entitling him to default bail once the accused applies for the default bail and shows his willingness to furnish bail, if any other condition is imposed, is to be treated beyond the jurisdiction of the Court concerned while exercising powers to grant default /statutory bail under Section 167(2) of the Criminal Procedure Code.

In view of the aforesaid, condition imposed under order dated 01.10.2020 passed by the Chief Judicial Magistrate, Vadodara in Criminal Misc.Application No.2636 of 2020, to the extent of directing deposit of 50% of the alleged amount of Rs.9,43,50,223 is hereby ordered to be quashed and set aside.

FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT

1. RULE. Learned APP Mr.H..K.Patel waives service of Rule on behalf of respondent No.1 and learned Advocate Mr.Ankit Shah waives service of Rule on behalf of respondent No.2.

2. This petition is filed against order dated 01.10.2020 passed by the Chief Judicial Magistrate, Vadodara in Criminal Misc.Application No.2636 of 2020, whereby, while enlarging the applicant on bail (on default bail), a condition was imposed to deposit an amount of 50% of the total amount of Rs.9,43,50, 223/-, which was alleged to be defaulted on the part of the applicant by the Office of the Commissioner, Central, GST, Vadodara-II.

3. Learned advocate for the applicant at the outset submitted that the Court has committed error in imposing condition as the Court was exercising its power under Section 167(2) of the Code of Criminal Procedure as within the statutory period provided the investigation could not be completed and complaint as provided under the provisions of GST Act was not filed against the applicant.

3.1 It is submitted that the Court of Chief Judicial Magistrate did not accept the say of the applicant to the extent that the applicant is enlarged to the default bail and has committed error in imposing a condition. Learned Advocate has relied upon the decision of the Apex Court in the case of Saravanan Vs. State represented by the Inspector of Police, reported in (2020) 9 SCC 101. The only issue that the bail Court has to consider while exercising the power under Section 167(2) of the Code of Criminal Procedure is once the applicant shows willingness to furnish bail, an indefeasible right is created in his favour to enlarge the applicant on bail.

4. Initially, the Department, viz. Superintendent (Prev.), Office of Central GST and Customs Commissionerate was not represented. However, during the mentioning, learned Advocate Mr.Ankit Shah appears on behalf of the Department and submitted that in view of the judgment of the Apex Court, he has no submission to make.

5. Having considered the rival submissions of the learned Advocates for the parties and having perused documents on record, it appears that the petitioner came to be arrested in connection with File No.IV/06-Prev/09/Gr.III/Halol/2019-20 registered with respondent No.2 for offences punishable under the provisions of GST Act. The petitioner was arrested on 29.07.2020 and bail application under Section 439 of the Criminal Procedure Code came to be rejected by the Magistrate.

6. On 03.09.2020, the petitioner filed Criminal Misc.Application No.12831 of 2020 for bail under Section 439. However, pending the bail application, statutory period of 60 days for registering the complaint under the provisions of the GST Act had expired and therefore, on 28.09.2020, the petitioner preferred an application for default bail before the Court of Magistrate, Vadodara being Criminal Misc.Application No.2636 of 2020. Considering the provisions of Section 167(2), the Magistrate by order dated 01.10.2020, allowed the application for default bail, in view of the fact that within the period stipulated, the investigation was not completed and the complaint was not filed. However, while allowing the application for default bail, the Magistrate was pleased to impose condition of depositing an amount to the extent of 50% of the alleged amount for which prosecution was launched, i.e. Rs.9,43,50,223/-. The question therefore before the Court is, while considering the case for default bail of the applicant, whether condition can be imposed lime the condition imposed in the present case for depositing 50% of the amount for which prosecution was launched. The answer lies in the decision of the Apex Court in case of Saravanan (supra). The relevant paras of the judgment are reproduced hereinbelow:-

“9. Having heard the learned counsel for the respective parties and considering the scheme and the object and purpose of default bail/statutory bail, we are of the opinion that the High Court has committed a grave error in imposing condition that the appellant shall deposit a sum of Rs.8,00,000/ while releasing the appellant on default bail/statutory bail. It appears that the High Court has imposed such a condition taking into consideration the fact that earlier at the time of hearing of the regular bail application, before the learned Magistrate, the wife of the appellant filed an affidavit agreeing to deposit Rs.7,00,000/. However, as observed by this Court in catena of decisions and more particularly in the case of Rakesh Kumar Paul (supra), where the investigation is not completed within 60 days or 90 days, as the case may be, and no chargesheet is filed by 60 th or 90th day, accused gets an “indefeasible right” to default bail, and the accused becomes entitled to default bail once the accused applies for default bail and furnish bail. Therefore, the only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 days, as the case may be, the investigation is not completed and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail. No other condition of deposit of the alleged amount involved can be imposed. Imposing such condition while releasing the accused on default bail/statutory bail would frustrate the very object and purpose of default bail under Section 167(2), Cr.P.C. As observed by this Court in the case of Rakesh Kumar Paul (supra) and in other decisions, the accused is entitled to default bail/statutory bail, subject to the eventuality occurring in Section 167, Cr.P.C., namely, investigation is not completed within 60 days or 90 days, as the case may be, and no chargesheet is filed by 60 th or 90th day and the accused applies for default bail and is prepared to furnish bail.

9.1 As observed hereinabove and even from the impugned orders passed by the High Court, it appears that the High Court while releasing the appellant on default bail/statutory bail has imposed the condition to deposit Rs.8,00,000/ taking into consideration that earlier before the learned Magistrate and while considering the regular bail application under Section 437 Cr.P.C., the wife of the accused filed an affidavit to deposit Rs.7,00,000/. That cannot be a ground to impose the condition to deposit the amount involved, while granting default bail/statutory bail.

9.2. The circumstances while considering the regular bail application under Section 437 Cr.P.C. are different, while considering the application for default bail/statutory bail. Under the circumstances, the condition imposed by the High Court to deposit Rs.8,00,000/, while releasing the appellant on default bail/ statutory bail is unsustainable and deserves to be quashed and set aside.”

7. In view of the aforesaid and considering the language of Section 167(2) of the Criminal Procedure Code, i.e. on expiry of the statutory period to complete investigation, an indefeasible right is created in favour of the accused person entitling him to default bail once the accused applies for the default bail and shows his willingness to furnish bail, if any other condition is imposed, is to be treated beyond the jurisdiction of the Court concerned while exercising powers to grant default /statutory bail under Section 167(2) of the Criminal Procedure Code.

8. In view of the aforesaid, condition imposed under order dated 01.10.2020 passed by the Chief Judicial Magistrate, Vadodara in Criminal Misc.Application No.2636 of 2020, to the extent of directing deposit of 50% of the alleged amount of Rs.9,43,50,223 is hereby ordered to be quashed and set aside. The petition stands allowed. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

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