2022 (9) TMI 1104 - DSC - GST

Seeking modification of Bail conditions - conditions regarding prior permission before travelling abroad and condition regarding deposit of passport - HELD THAT - The power granted by the Code under Sec. 437 to impose certain conditions including restriction on movement while granting bail in non bailable offence can be taken as procedure established by law as stated in Article 21 of the Constitution. The criminal courts have to take extreme care in imposing such condition. It cannot mechanically, and in every case where an accused has a passport impose a condition for its surrender. Law presumes an accused to be innocent till he is declared guilty. As a presumably innocent person he is entitled to all the fundamental rights guaranteed to him under the Constitution. At the same time, interest of the society has also to be protected. The court has to strike a balance between personal liberty of the accused guaranteed under Article 21 of the Constitution, investigation rights of the police. The criminal court has to consider possibility of the accused if released on bail, fleeing justice and thereby thwarting the course of justice which affects the majesty of the law, as also the individual rights of the accused - The condition that accused should seek permission of the court before undertaking any travel is imposed to prevent his fleeing from the court. The said purpose can very well be achieved even if he is asked to give advance detailed intimation to the court as well as the Department of his proposed/intended travel. In case, the Department is of the view that travel to a particular country or during the days proposed is going to hamper the investigation or trial, in any manner, the concerned court can always be asked to restrain the applicant from so undertaking the travel. Where there is no objection, the Trial Court need not waste its time in processing applications seeking permission. The present application is allowed and the condition of seeking prior permission before leaving for abroad is modified to the extent that the applicants shall be bound to give 7 working days prior intimation to the Department before undertaking any foreign travel - Application disposed off.

Summary

Issues: Application seeking modification of bail conditions regarding travel abroad and passport deposit.

In this judgment, the court addressed the issue of modifying the bail conditions for applicants who were accused of wrongfully claiming Input Tax Credit (ITC). The applicants, who are Directors/Authorized Signatories of registered companies, were granted regular bail but were required to deposit their passports. The court noted that the investigation had been ongoing for some time, and the offence carried a maximum punishment of 5 years of imprisonment. The applicants had applied for the return of their passports for renewal purposes, which was pending before the Ld. CMM. The Department did not clarify if a complaint had been filed, although the investigation was almost complete.

The counsel for the applicants argued that the condition of seeking prior permission to travel abroad infringed upon the personal liberty of the applicants guaranteed under the Constitution of India. They contended that no material had been collected to show the applicants' involvement in the offence, and no complaint had been filed despite the arrest and subsequent bail of the applicants. The applicants had cooperated with the investigating agency, and the offence was not punishable for more than 5 years. The counsel highlighted that the accused were not fly-by-night entities and had been frequent travelers for business purposes.

The court considered various legal precedents and emphasized that while imposing conditions for bail, the court must balance the personal liberty of the accused with the interests of justice and society. It highlighted that the accused, presumed innocent until proven guilty, had fundamental rights, including the right to travel. The court stressed the need to protect the rights of the accused while ensuring the integrity of the investigation and trial process.

Ultimately, the court modified the bail condition, requiring the applicants to provide 7 working days' prior intimation to the Department before any foreign travel. They were directed to furnish detailed travel itineraries, flight details, stay information, and ensure no travel dates clashed with court or investigative agency requirements. Additionally, the applicants were instructed to provide a surety bond of Rs. 20,00,000 each. The Department was granted liberty to revoke the order if the applicants failed to comply at any point during the investigation or trial. The application seeking modification of bail conditions was disposed of accordingly.