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2022 (3) TMI 977 - HC - GSTSeeking grant of anticipatory bail - fraudulent availment of inadmissible Input Tax Credit (ITC) - bailable offence or not - present dispute is much less than ₹ 5 crore - Whether an application under Section 438 Cr.P.C. would lie and is maintainable for an offence which has been declared by the concerned statute as a bailable offence? - HELD THAT - The provision of anticipatory bail as per its scheme can be invoked by a person who has a reason to believe that he may be arrested for committing a non - bailable offence . In the case Onkar Nath Agrawal v. State 1976 (1) TMI 189 - ALLAHABAD HIGH COURT it was held that the power under section 438 Cr.P.C. is not to be exercised in vacuum but only on the satisfaction of the conditions spelled out in the section itself. It is thus concluded that the conditions prerequisite for the court's exercise of its discretion under Section 438 Cr.P.C. is that the person seeking such relief must have a reasonable apprehension of his arrest on an accusation of having committed a non-bailable offence - The question thus gets answered by the discussion that an application under Section 438 Cr.P.C. is only maintainable by a person who has apprehension of his arrest on accusation of having committed a non - bailable offence. Section 132 of the Act lists 12 offences that are punishable with imprisonment and/or a fine. The terms of imprisonment and the amount of fine, is dependent on the amount involved in the offence, or in some cases, the act committed by the offender - In the present case, it is a common ground between the applicants and the opposite party No. 3 that the offences are bailable. Even para-28 of the counter affidavit to the said effect stands unrebutted. The question thus being answered by holding that granting of anticipatory bail does not arise for an offence which is bailable and a direction for the same can be issued only in respect of non-bailable and cognizable offences, the present anticipatory bail application deserves rejection - Application rejected.
Issues Involved:
1. Maintainability of anticipatory bail application under Section 438 Cr.P.C. for bailable offences. 2. Applicability of Section 132 of the Central Goods and Services Tax Act, 2017 in determining the nature of the offence. Issue-wise Detailed Analysis: 1. Maintainability of Anticipatory Bail Application under Section 438 Cr.P.C. for Bailable Offences: The core issue examined was whether an application under Section 438 Cr.P.C. is maintainable for an offence declared as bailable by the concerned statute. The court noted that Section 438 Cr.P.C. is invoked by a person who has "reason to believe that he may be arrested" for committing a "non-bailable offence." The provision of anticipatory bail, as per its scheme, can only be invoked under two conditions: (i) There must be an accusation of the petitioner having committed a non-bailable offence, and (ii) There must be reasonable apprehension or belief in the mind of the petitioner that he would be arrested on the basis of such an accusation. The court cited precedents such as *Onkar Nath Agrawal v. State* and *Joginder @ Jindi vs. State of Haryana*, which held that Section 438 Cr.P.C. relates to non-bailable offences, and a petition under this section in relation to bailable offences is misconceived. The court concluded that the conditions prerequisite for the court's exercise of its discretion under Section 438 Cr.P.C. are not met if the offence is bailable. 2. Applicability of Section 132 of the Central Goods and Services Tax Act, 2017: Section 132 of the Central Goods and Services Tax Act, 2017, lists various offences and their corresponding punishments. It categorizes certain offences as cognizable and non-bailable if the amount involved exceeds ?500 lakhs, while all other offences are categorized as non-cognizable and bailable. In the present case, the dispute involved an amount of ?1,80,86,343/-, which is less than ?5 crore. Both parties agreed that the offences in question are bailable. The court referenced Section 132(4) of the Act, which states that all offences under the Act, except those specified in sub-section (5), are non-cognizable and bailable. The court concluded that since the amount involved is less than ?5 crore, the offences are bailable, and thus, the anticipatory bail application under Section 438 Cr.P.C. is not maintainable. Conclusion: The court held that granting anticipatory bail does not arise for an offence which is bailable and a direction for the same can be issued only in respect of non-bailable and cognizable offences. Consequently, the anticipatory bail application was rejected. The interim order dated 2.3.2022 was vacated. Order: The anticipatory bail application under Section 438 Cr.P.C. was rejected, and the interim order dated 2.3.2022 was vacated.
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