GRANT OF BAIL UNDER GST LAW

[Dr. Sanjiv Agarwal]

Meaning of ‘bail’ and ‘bailable offence’

The offences from ‘bail’ point of view can be categorized into two types – bailable and non-bailable. While in a bailable offence, granting of bail is done in normal course whereas in case of non-bailable offence, an arrest can be effected, even for the purpose of investigation implying that offenders detention is discretionary. Non-bailable offence means where arrested person may be released on bail only by the Magistrate. Bail is basically a concept used to ensure offender’s appearance to answer the charges made. The criminal offences where detention of the accused is deemed necessary to ensure his or her appearance for investigation and trial are termed as ‘non-bailable’. The offences where detention may not be warranted are bailable offences.

For non cognizable offences, the Assistant Commissioner or Deputy Commissioner is bound to release a person on bail against a bail bond. The bail conditions should be informed in writing to the arrested person and also informed on telephone to the nominated person of the person arrested .The arrested person should be also allowed to talk to a nominated person. The conditions will relate to, inter alia, execution of a personal bail bond and one surety of like amount given by a local person of repute, appearance before the investigating officer when required and not leaving the country without informing the officer. The amount to be indicated in the personal bail bond and security will depend, inter alia, on the amount of tax involved.

If the conditions of the bail are fulfilled by the arrested person, he shall be released by the

officer concerned on bail forthwith. However, only in cases where the conditions for granting bail are not fulfilled, the arrested person shall be produced before the appropriate Magistrate without unnecessary delay and within twenty-four (24) hours of arrest. The arrested person may be handed over to the nearest police station for his safe custody, within 24 hours, during the night under a challan, before he is produced before the Court.

In the event of circumstances preventing the production of the arrested person before a Magistrate without unnecessary delay, the arrested person may be handed over to nearest Police Station for his safe custody, within 24 hours, under a proper challan, and produced before the Magistrate on the next day, and the nominated person of the arrested person may be also informed accordingly.

Department is required to maintain Bail Register with requisite details and should follow the reporting system- daily or monthly.

Bail is basically a concept used to ensure offender’s appearance to answer the charges pressed on him. The criminal offences where detention of the accused is deemed necessary to ensure his or her appearance for investigation and trial are termed as ‘non bailable’. The offences where detention may not be warranted are bailable offences.

The offences from ‘bail’ point of view can be categorized into two types – bailable and non-bailable. While in a bailable offence, granting of bail is done in normal course whereas in case of non-bailable offence, an arrest can be effected, even for the purpose of investigation, implying that offender’s detention is non- discretionary. Non-bailable offence means where arrested person may be released on bail only by the Magistrate.

Types of Bail

In India, generally following types of bail are granted:

• Regular Bail – Generally granted to a person who has been arrested or in police custody. A bail application can be filed for the regular bail under sections 437 and 439 of Cr.P.C.
• Interim Bail- This type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.
• Anticipatory Bail- It is granted under section 438 of Cr.P.C. either by Session Court or High Court. An application for grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non-bailable offence.

Release of arrested persons

Section 69(3) of the CGST Act, 2017 law empowers the Deputy Commissioner or the Assistant Commissioner of GST to release the person so arrested on bail in case of non-cognizable and bailable offences, and for this purpose they have the same power as that of an officer-in-charge of a police station but subject to provision under section 436 of the Code of Criminal Procedure, 1973.

Thus, a person may be released subject to the following:

(a)   Release may be on bail or otherwise;

(b)  Release of arrested person is allowed only in case of a non-cognizable offence and bailable offence;

(c)   Release can be made by the Deputy Commissioner or Assistant Commissioner of CGST/SGST;

(d)  The officer has the same powers and subject to same powers as that of an officer-in-charge of police station;

(e)   Provision of release is subject to provisions of Code of Criminal Procedure, 1973 (Section 436).