INTRODUCTION
The principle of Anticipatory bail has been embodied in section 438 of Code of Criminal Procedure, 1973 [The Code of Criminal Procedure, 1973 (Act No. 2 of 1974), Herein after mentioned as, “The Code”]. The provision marked an advent of a statutory right which provides an opportunity to the accused to secure bail from High court or Sessions court when he apprehends arrest. The intent of legislators was to make following right a shield for those people who fall prey to the criminal proceedings sterned from malign intentions.
Anticipatory bail is generally to be granted in the situations where the initiation of judicial process on the face appears to be for meeting the ends of justice but covertly is culmination of thoughts from besotted jealousy, rivalry and animosity between two persons. Thereby, the following becomes a ruse in design to satisfy the complainant’s acrimony. The legislators have relied on a trained judicial mind to appreciate the material on record cautiously and then to observe if any case shows the inclination of the complainant to cause humiliation to the accused. It is to be kept in mind that the criminal procedure cannot become an engine of oppression by such dishonest litigants to cast clouds of distress on their rivals.
CONSIDERATIONS TO BE PONDERED UPON
Due to the nature of the right being exercised, there are some basic considerations which are to be kept in mind by the court while granting anticipatory bail. These considerations flow from the various judicial pronouncements of the court in past cases, such as: –
1. The Court has to observe the nature and gravity of the alleged against the Applicant and what can be his probable role in the following offence.
2. The antecedents of the applicant as it goes to encircle the propensity of the applicant to commit the offence alleged and also to weigh the probability of him committing any similar offence once let out on bail.
3. The probability of applicant to escape the clutches of justice once let out on bail.
4. Presence of any malign motive to cause humiliation to the complainant.
5. The floodgate principle is to be kept in mind while granting bail. Thereby, the court should be reluctant in granting anticipatory bail if premonition of negative impact on large magnitude of successive cases exists.
6. The court is also to consider the chances of the applicant tampering with evidence or intimidating the witness.
7. If the applicant is able to make the Frivolity in the prosecution manifestly visible, the court should be inclined towards granting anticipatory bail.
Anticipatory bail it becomes operative only on arrest of the accused and with effect to such order the person is immediately released. It is an extraordinary privilege and thus, it should not be granted mechanically or as a matter of rule, but only in exceptional cases where the accused is able to inspire confidence of the court to believe that such charges against him are disingenuous. Without securing of anticipatory bail the accused has to move an application under section 437 or 439 to be released on bail, and he has to remain incarcerated whilst such application is disposed of this is the reason that final endeavor of the court should be to strike balance between the right of the applicant and the duty of the authorities to investigate.
On juxtaposing the circumstances and considerations which has to be deliberated upon by the court under section 437 and section 438 of the code we observe that, the circumstances of application under the two provisions varies, but the accused have to satisfy all the considerations of section 437 to obtain an order of anticipatory bail and furthermore, in addition to such conditions he also has to satisfy the court that the charges of the non-bailable offence levelled against him consist of an ulterior and malign motive [Mathanthagouda Vs. State of Karnataka, 1978 CrLJ 1045 (Kant)].
ANTICIPATORY BAIL UNDER THE CENTRAL GOODS AND SERVICE TAX ACT, 2017
General observation says that, the essence of the right remains the same but the considerations for its applicability may change due the circumstances. The same can be seen in the case of granting of anticipatory bail for alleged offences under the newly established GST regime. The following questions arose at the nascent stages of the applicability of the CGST Act [The Central Goods and Services Tax Act, 2017 (No. 12 of 2017), Hereinafter mentioned as, “CGST Act, 2017”], which contended the offenders under these laws from exercising their right of anticipatory bail: –
1. Can the applicant move to the court for grant of anticipatory bail where the summons have been issued to him under section 70 of the Act?
2. Without initiation of a formal prosecution by the way of private complaint with sanction of the commissioner, how can the applicant apprehend his arrest which is a condition precedent whilst granting of anticipatory bail?
3. The following right if extended to the offenders under this Act, it will become an impediment in the investigation procedure [PV Ramana Reddy Vs. Union of India (2019), (WP No. 4764 of 2019)]
The court reached towards objectivity on the following topic and also devised various ways to remove the impediments which may occur due to such application. The court observes that: –
1. In the case of Sri Hanumanthappa Pathrera Lakshmana Vs. State[PV Ramana Reddy Vs. Union of India (2019), (WP No. 4764 of 2019)] the court declared that there is no express bar in any of the provisions which puts up an embargo on the applicant for exercising his right under section 438 of The Code. Thereby, there is no iota of doubt that the statutory right of the applicant extinguishes in a proceeding against him under CGST Laws.
2. Further, the court relied on the case of Gurbaksh Singh Sibbia Vs State of Punjab (1980) [1980 AIR 1632] and observed that lodging of FIR is not necessary to have an apprehension of arrest. Where the applicant has been intimidated by the authorities by showing provisions of arrest and punishment [Section 132 of the CGST Act, 2017] during raids, the applicant can then breed the apprehension of arrest [Nitin Verma Vs State of UP and Anr., (CR.P.C. No.- 4116 of 2020)]. Furthermore, in cases where the other partners of the firm have been arrested the partner who has been issued summon can apprehend his arrest, Thence, we can say that the application for anticipatory bail can be filed when summoned under section 70 of the act.
3. In case of Shravan A. Mehra Vs. Superintendent of Central Tax [Criminal Petition No. 979/2019], The Karnataka High court observed that on imposing of stringent conditions the person can be granted anticipatory bail without disturbing investigation by the authorities, for example, the court can mandate the weekly appearance for interrogations and also make the applicant to arrange sufficient amount of sureties and fill appropriate bonds.
CIRCUMSTANCES AND CONSIDERATIONS FOR GRANTING OF ANTICIPATORY BAIL UNDESR CGST LAWS
I. Prior Assessment of Liability
The provisions of CGST Act, 2017 qua arrest are para materia with provisions of finance Act, 1994. [Jayachandran Alloy Pvt. Ltd. Vs. Superintendent of GST & C. Ex., Salem [2019(25) G.S.T.L. 321 (Mad.)] (para- 36)] In case of Nitin Verma Vs. State of UP [CR.P.C. No. – 4116 of 2020] & Akhil Krishan Maggu & Anr. Deputy Director, Directorate General of GST Intelligence & Ors. [2020 (32) GSTL 516 (P&H)] The courts heavily relied on the case of Make My Trip Vs. Union of India [2016 (44) STR 481 (Del.)]. The following judgement states that there should be a satisfactory proof as to for a reasonable person to believe that an offence have been committed and after such satisfaction the enquiry is to be conducted where the person will be given chance of explaining the material present against him and then there should be arrest if required. Application of mind by the authorities should be manifest for which the prior assessment becomes important [C. Pradeep Vs. The Commissioner of GST & Central Excise Selam & Anr. (SLP (Crl.) No(s). 6834/2019]. The prosecution shouldn’t be on whimsical basis.
Arrest should be made in exceptional cases and the officials are to use their power cautiously keeping in mind the constitutional embargos [Ganga Ram Vs State of Punjab, 2021 (44) GSTL, 5 (P&H)] which have been enunciated in the case of D.K. Basu, Ashok Johri Vs. State of West Bengal [WRIT PETITION (CRL) NO. 592 OF 1987]. The following judgement of Delhi High Court also acknowledged the exceptions to such modus oprendi. The exceptions can be in case of the person being habitual offender. In case of Vimal Yashwantgiri Goswami Vs State of Gujarat where Gujarat HC observed that, power of arrest under section 69 of the CGST Act, 2017 are to be exercised with a lot of care and circumspection and the prosecution should only take place only after concretized adjudication by the officials.
The court also considered the case of Arnesh Kumar Vs State of West Bengal [2014 (8) SCC 273] while pronouncing that Section 41 and 41A of the Code are equally applicable in essence to the proceedings under the following Act, which provides for the reasons to be recorded in writing for the arrest of the accused, in offences where the imprisonment of the offence is for more than 7 years. The imprisonment under the following Act can be extended up to 5 years which makes the provisions equally applicable in these offences.
For the purpose to elaborate upon the arrest guidelines to the Central Excise officers DGCEI published a manual in 2004 wherein chapter X Para 7 states that arrest made prior to the Show Cause Notice should only be made when the fraudulent intent is clearly present and the authority have the evidence to prove the following mens rea or where it can be convincingly be shown from the evidences that the person can abscond, tamper with evidence or influence witness if let out of the custody. “Arrest at investigation stage should be resorted to only when it is unavoidable”.
II. Intimidation of Applicant
In Case of Nitin Verma Vs State of UP & Anr. The court observed that in the following case, that the officials clearly showed the assessee Section 132 in order to intimidate him with the possibility of punishment under section 132, The court also remarked the following acts contrary to the scheme of the act. Further, the court held that the authorities under this act has a limited elbowroom to exercise their power which is granted to them by the act due to the strict interpretation norm followed in revenue statutes, Thereby, on strictly construing section 132 we can say that the proceedings can only be initiated when it is established that assessee has committed the crime, also this makes the process of assessment a pre-condition to arrest. The authorities under section 69 shouldn’t be allowed to intimidate the assessee to turn their whim into evidence. [Ganga Ram Vs State of Punjab, (2021) 44 GSTL 5 (P&H)]
III. Proof of transaction when adduced
Where the applicant is accused of creating fake Input credit without any actual sale or purchase and the applicant in such situations if is able to prove the transaction which took place then the court should be inclined to look at the accusation with suspicion and the chances of granting bail generally should increase. To inspire the confidence of the court the applicant can adduce evidences to show existence of suppliers and purchasers and also documents like E-way bills to establish the factum of delivery can be proved. [Lupita Saluja Vs. DGGI, 2021 (47) GSTL 3 (Del)]
IV. Extreme Old age and Serious Medical Ailments
In case of Lalman Aggarwal Vs. State of Gujarat the court heavily relied on the case of Sidharam Satlingappa Mhetre Vs. State of Maharashtra and Ors. [(2011) 1 SCC 6941]and considered the medical conditions of the applicant and his age of 69 years. The court also considered the age of 65 years of the second applicant and her weak proximity to the workings of business, Thereby, on failure of proving any special circumstance by the investigating officers both the applicants were granted anticipatory bail in the following case.
V. When there is no loss of revenue
It is important to keep in mind that the object and purpose of the CGST Act is not penal in nature, but it is economic for the purpose of legislation being to recover any amount, that may be due to the Government exchequer[1]. Thereby, in case of CCE Vs. Jain Irrigation Ltd. [2008 (227) ELT 587] It was held that where a higher duty is paid than the amount itself on which the reversal of credit is in question no coercive action can be taken against the applicant in case of judicial remand application being made.
VI. Buyer cannot be held responsible
In case of Commissioner Vs Anand Arc Electrodes [2010 (252) ELT 411]The tribunal held that the buyers cannot be held liable as they do not have any control over the purchaser’s as to ensure whether or not the duty has been paid correctly by them. The Tribunal in same case held that the purchasers cannot be penalised for mere untraceability of the suppliers as they cannot be expected to keep track of all the suppliers for years.
VII. Where the applicant was not looking at day to day operations of the company
In the case of Sh. Ashok Kumar Vs. CC Navi Mumbai [2021 (41) GSTL 311 (Bom)] the court observed and pondered over the role of sleeping or dormant partners in the firm against whom such accusations of economic offences are alleged. In the following case the applicant was a housewife and had no participation in the day-to-day workings of the firm and thereby the court deemed fit to grant anticipatory bail in the following case.
CONCLUSION
Anticipatory bail should be provided in each and every case where it appears that the case has been built on a whim, the accused has not been an accomplice to any of the actions in question and primarily where the court finds itself in such a position that a balance can be struck between the investigation process and the liberty of an individual.
Further, it is pertinent to observe that law has an inexorable tendency to move towards objectivity from subjectivity where time incepts cogency into the bare provisions of law through judicial pronouncements, illustrious advocacy and societal perception. The GST regime is one such regime which stands on laws which are moving towards objectivity with each passing judgement.
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