2024 (4) TMI 1193 - HC - GST

Grant of anticipatory bail - creation of forged and fabricated bills of purchase of betel nuts - true and genuine for creating forged documentary evidence - offence punishable under Sections 420, 465, 467, 468, 120 (B), 201, 472 and 114 of the Indian Penal Code - HELD THAT - It appears from the investigation papers that present petitioner is one of the main active partner in the company; the documents were forged and prepared and submitting before the concerned authority as genuine one to imply that salt has been imported; but in reality betel nut was imported. Whether the GST Department has taken any cognizance or not for evasion of tax duty is another aspect; but prima facie, offence of creating a forged and fabricated documents and used them as genuine one is made out against the petitioner. The other accused are granted regular bail and that too after filing of the charge-sheet; but the said ratio cannot be applied at this stage since the custodial interrogation is required in view of the fact that as per statement of one Mr. Ashishkumar, petitioner has played major role in commission of the offence. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused, but several other purposes. Power u/s 438 of the Code is an extraordinary power and the same has to be exercise sparingly in appropriate and fit case. This privilege should be extended only in exceptional cases - It is a judicial discretion conferred upon the court, and it is to be properly exercised after application of mind as to the nature and gravity of the accusation, possibility of the applicant fleeing from justice and other factors to decide whether it is a fit case for grant of anticipatory bail. The fact of the case demands custodial interrogation of the petitioner. Under the circumstances, the petitioner is not entitled for anticipatory bail - Petition dismissed.

Summary

Issues Involved:
1. Whether the petitioner is entitled to anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.
2. The applicability of the GST Act in conjunction with the Indian Penal Code (IPC) for the alleged offences.
3. The consideration of the petitioner as an absconding accused and its impact on the bail application.
4. The principle of parity in granting bail and its relevance in this case.
5. The necessity of custodial interrogation of the petitioner.

Detailed Analysis:

1. Entitlement to Anticipatory Bail:
The petitioner sought anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, in connection with an FIR for offences under Sections 420, 465, 467, 468, 120(B), 201, 472, and 114 of the IPC. The court emphasized that anticipatory bail is an extraordinary remedy to be exercised sparingly and only in exceptional cases. It highlighted the need to consider the nature and gravity of the accusation, the possibility of the applicant fleeing from justice, and other relevant factors. The court concluded that the petitioner, being treated as an absconding accused, was not entitled to anticipatory bail due to the necessity of custodial interrogation.

2. Applicability of GST Act and IPC:
The petitioner argued that the FIR, although filed under various IPC provisions, essentially pertained to tax evasion, thereby invoking the GST Act. It was contended that the prosecution was invalid without prior sanction from the Commissioner under Section 132 of the GST Act. However, the court noted that the FIR was maintainable under the IPC for forging documents and presenting them as genuine to avail tax benefits. The court underscored that the GST Department's actions or inactions did not preclude the prosecution under the IPC for the alleged forgery and fabrication of documents.

3. Absconding Accused Status:
The court observed that the petitioner was declared absconding, as mentioned in the charge-sheet, and had not cooperated with the investigation. The court referenced precedents indicating that an absconding accused is generally ineligible for anticipatory bail. The petitioner's delayed approach to the court after being named in the charge-sheet further supported the court's decision to deny anticipatory bail.

4. Principle of Parity:
The petitioner invoked the principle of parity, arguing that other active partners in the company had been granted regular bail. The court, however, distinguished the petitioner's case, noting that the other accused were granted bail post-charge-sheet and that the petitioner's custodial interrogation was necessary due to her alleged major role in the offence. The principle of parity was deemed inapplicable at this stage due to the specific circumstances of the petitioner's involvement.

5. Necessity of Custodial Interrogation:
The court highlighted the need for custodial interrogation, given the petitioner's alleged active role in the commission of the offence, as per the statement of a co-accused. The court emphasized that arrest is part of the investigation process to secure the presence of the accused and fulfill other investigative purposes. The court concluded that the balance between investigation needs and personal liberty justified the denial of anticipatory bail.

Conclusion:
The court dismissed the petition for anticipatory bail, emphasizing the extraordinary nature of such relief and the necessity of custodial interrogation in this case. The judgment underscored the importance of considering the gravity of the offence, the petitioner's conduct, and the requirements of a fair investigation in deciding bail applications.