2025 (4) TMI 164 - HC - GST

Seeking quashing of non-bailable warrants against the accused petitioner at the first instance - supplying of packing material in the name of fake firms with an intent to dodge the checking conducted by GST Department - when the cognizance is taken by the Competent Court on a complaint filed after completion of investigation in the matter his presence can be secured by issuing summons or bailable warrants? - HELD THAT - Issuing non-bailable warrants for securing the presence of an accused can be resorted only when an accused does not turn up even after service or execution of summons or bailable warrants. In the present case after registration of the case by the respondent- department summons were issued to the petitioner and in response to the summons the petitioner appeared before the department and he was interrogated and his statements were recorded on 08.6.2022. The department did not choose to arrest the accused petitioner at the relevant time. Para 11.2 of the complaint speaks of the fact that the accused petitioner during investigation of the matter appeared before the authorities of the Department and his statements were also recorded. By filing the application under section 72(2) of the BNSS the petitioner has made a limited prayer that the non- bailable warrants issued against him for securing his personal presence before the court below be converted into bailable warrants and his bail bonds be accepted in view of the fact that he is always ready to appear before the concerned court and he has also cooperated with the investigation in the matter by appearing before the Investigating Officer and got recorded his statements - It is a well settled law that when a cognizance is taken against an accused at the very first instance for securing his personal appearance before the concerned court summons or bailable warrants should be issued and the option of issuing non-bailable warrants should only be resorted if such an accused person does not appear before the concerned court even after service of summons or bailable warrants. The facts of the case of Tarsem Lal are quite similar to the facts of the present case. In the case of Tarsem Lal the Hon ble Apex Court has dealt with the case of accused persons therein who were not arrested after registration of the enforcement case information report till the Special Court took the cognizance against them. The cognizance was taken on the complaint filed under section 44(1)(b) of the PMLA and the Special Court issued warrants for procuring their presence. The present case is on better footings than the case of Tarsem Lal because in that case the accused appellants therein did not appear before the Special Court after summons were served upon them whereas in the present case the petitioner never avoided his appearance before the Special Court and he has appeared before the Investigating Officer. The present case may be of serious nature but along-with the seriousness of the matter it is also to be seen that whether the accused is likely to evade the process of law or tamper/ destroy the evidence. In the present case the accused petitioner is ready to join the process of law and before filing of the complainant he has also appeared before the Investigating Officer and got recorded his statements which clearly shows that there is no likelihood to evade the process of law by the accused petitioner. Though in the complaint filed by the respondent- department they have stated that the employees of the accused petitioner have destroyed the evidence however no cognizance has been taken by the Special Court against the accused petitioner for such allegations of tampering or destroying the evidence. Thus this Court can held that the issuance of non-bailable warrants at the very first instance after taking cognizance for securing the personal presence of the accused is not sustainable. After converting the non-bailable warrants into bailable warrants if the accused petitioner appears before the concerned Court whether he / she should be released on bail or he has to move an application for regular bail? - HELD THAT - The court below was under an obligation to see whether there is likelihood on the part of the accused petitioner of evading the process of law or he may tamper / destroy the evidence as has been observed by the Hon ble Apex Court in the case of Sharif Ahmed 2024 (5) TMI 1541 - SUPREME COURT . This Court in view of the assurance given by the petitioner so as to join the trial and there is no evidence or cognizance against the accused petitioner as regards tampering/ destroying the evidence feels that it is a fit case where the accused petitioner should be allowed the process of law by appearing before the court below without there being non-bailable warrants. The presumption of innocence is available to a person under the fundamental principles of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by the Competent Court. Conclusion - i) Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. ii) The Court quashed the trial court s order issuing non-bailable warrants converted them to bailable warrants and held that the accused need not apply for bail upon appearing before the court. Application disposed off.

1. ISSUES PRESENTED and CONSIDERED

The primary issues considered in this judgment are:

Whether the issuance of non-bailable warrants against the accused petitioner at the first instance was legally justified.
Whether the non-bailable warrants should be converted into bailable warrants, considering the accused's cooperation with the investigation.
Whether the accused petitioner should be required to apply for bail upon appearing before the court after the conversion of non-bailable warrants to bailable warrants.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Legality of Issuance of Non-Bailable Warrants

Relevant Legal Framework and Precedents: The issuance of non-bailable warrants is governed by the principles laid out in the Criminal Procedure Code (CrPC) and various judgments of the Hon'ble Apex Court, including Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors., Vikas v. State of Rajasthan, and Tarsem Lal v. Directorate of Enforcement. These precedents emphasize that non-bailable warrants should only be issued when summons or bailable warrants are unlikely to secure the accused's presence.
Court's Interpretation and Reasoning: The Court observed that non-bailable warrants should not be issued at the first instance unless there is a reasonable belief that the accused will not appear voluntarily, cannot be served with a summons, or poses a danger if not taken into custody.
Key Evidence and Findings: The accused petitioner had cooperated with the investigation by appearing before the Investigating Officer and recording statements. The department did not seek the accused's arrest during the investigation.
Application of Law to Facts: The Court found that the trial court did not properly apply the principles governing the issuance of non-bailable warrants, as the accused had not evaded the process of law.
Treatment of Competing Arguments: The prosecution argued that the offense was serious, involving significant GST evasion. However, the Court noted that seriousness alone does not justify non-bailable warrants without evidence of evasion or tampering.
Conclusion: The Court concluded that the issuance of non-bailable warrants at the first instance was not sustainable.

Issue 2: Conversion of Non-Bailable Warrants to Bailable Warrants

Relevant Legal Framework and Precedents: The Court referred to the case of Tarsem Lal, which outlines the procedure for converting non-bailable warrants to bailable ones when the accused has cooperated with the investigation.
Court's Interpretation and Reasoning: The Court emphasized the importance of personal liberty and the presumption of innocence, suggesting that non-bailable warrants should be converted when the accused is willing to cooperate.
Key Evidence and Findings: The accused had appeared before the authorities and recorded statements, indicating no intention to evade the process.
Application of Law to Facts: The Court applied the principles from Tarsem Lal and similar cases, determining that the accused's cooperation warranted the conversion of warrants.
Treatment of Competing Arguments: The prosecution's emphasis on the seriousness of the offense was acknowledged, but the Court prioritized the accused's demonstrated willingness to comply with legal proceedings.
Conclusion: The Court ordered the conversion of non-bailable warrants to bailable warrants.

Issue 3: Requirement for Bail Application

Relevant Legal Framework and Precedents: The Court referred to the judgment in Tarsem Lal, which states that an accused appearing pursuant to summons is not considered in custody and thus does not need to apply for bail.
Court's Interpretation and Reasoning: The Court decided that since the accused was not in custody, there was no need for a bail application upon appearing before the court.
Key Evidence and Findings: The accused's cooperation and assurance to appear before the court were pivotal.
Application of Law to Facts: The Court applied the principle that an accused not in custody need not apply for bail, aligning with the accused's compliance with legal processes.
Treatment of Competing Arguments: The prosecution's argument for a bail application was dismissed based on the accused's cooperation and the legal framework.
Conclusion: The accused need not apply for bail upon appearing before the court.

3. SIGNIFICANT HOLDINGS

Verbatim Quotes of Crucial Legal Reasoning: "Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result."
Core Principles Established: The Court reinforced the principle that non-bailable warrants should be a last resort, emphasizing the importance of personal liberty and the presumption of innocence.
Final Determinations on Each Issue: The Court quashed the trial court's order issuing non-bailable warrants, converted them to bailable warrants, and ruled that the accused need not apply for bail upon appearing before the court.

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