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TMI Blog2021 (10) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of law and facts projected by the petitioners, the case has to be examined by this Court whether the petitioners are entitled to get default bail as provided in Section 167(2) of the Cr.P.C. on count of non filing of final report within 60 days or not. The GST officers are not the police officers, therefore, they are not required to submit final report as envisaged in Section 173 of Cr.P.C. It is quite clear that complaint has been filed within 60 days of their arrest which is within the time prescribed for filing of complaint to entitle or disentitle the accused persons for default bail - the writ petition (criminal) is dismissed. - WPCR No. 469 of 2021 - - - Dated:- 1-10-2021 - Hon'ble Shri Justice Narendra Kumar Vyas For the Petitioners : Shri B.P. Sharma, Advocate For the State : Shri D.P. Singh, Deputy Advocate General For the Respondent No. 2 : Shri Manish Sharma, Advocate ORDER C.A.V. ORDER 1. The petitioners have filed this writ petition (criminal) under Article 226 of the Constitution of India challenging the legality and propriety of the order dated 26.06.2021 passed in Criminal Revision No. 62/2021 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Chief Judicial Magistrate, Raipur till 08.02.2021. 4. It has been further contended by the learned counsel for the petitioners that they have collected remand order sheets which show that investigation has not been completed, therefore, they seek further time to file charge-sheet, therefore, the petitioners have been taken into judicial custody. Thereafter, one Bharat Bhushan Sahu who claims himself to be Senior Intelligence Officer in the Office of GST, Raipur filed application on 25.01.2021 and sought judicial custody for 14 days which was accepted and extended by the Court. 5. Learned counsel for the petitioners would submit that as per the provisions of Cr.P.C. it is responsibility of the respondent authority to submit charge sheet within 60 days, however, in the present case, no charge-sheet has been filed, therefore, the petitioners are entitled to be released on bail but the same has been denied by the Chief Judicial Magistrate, Raipur vide order dated 12.05.2021 against which revision was preferred which was also dismissed vide impugned order dated 26.06.2021. Thereafter, the present writ petition (criminal) has been filed. 6. Learned counsel for the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without any delay. He would draw attention of this Court towards Section 190 of the Cr.P.C. which is extracted below:- 190. Cognizance of offences by Magistrates:- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2)The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try. 9. The learned counsel for the petitioners would submit that respondent authorities cannot discharge their responsibility by filing complaint in place of charge-sheet, therefore, the procedure followed by the respondent authority, void ab initio, deserves to be quashed and deserves to be interfered by this Court. The order of the Magistrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad with Sub-section (5) of Section 132 of the Act of 2017. 12. Learned counsel for respondent No. 2 would further submit that as per Section 4(2) of Cr.P.C. read with Section 5 of the Cr.P.C. all the offences under any law other than IPC will also be investigated, inquired into, tried according to the provisions of Cr.P.C. subject to any enactment for the time being in force regulating them. Sections 4 and 5 of the Cr.P.C. are reproduced below:- 4. Trial of offences under the Indian Penal Code and other laws:- (1) All offences under the Indian Penal Code (45 of 1860 ) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 5. Saving. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amine the provisions of Section 167(2) of Cr.P.C. which are extracted below for convenience:- Section 167(2) in The Code Of Criminal Procedure, 1973 - (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s wrongly entered into merits of the matter while coming to the conclusion. The reasons assigned and the conclusions arrived at by the High Court are unacceptable. 25.2. The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court. 19. Thus, from the above stated provisions of law, it is abundantly clear that default bail is indefensible right of the petitioner. The same cannot be violated by prosecution. On above legal provisions of law and facts projected by the petitioners, the case has to be examined by this Court whether the petitioners are entitled to get default bail as provided in Section 167(2) of the Cr.P.C. on count of non filing of final report within 60 days or not. 20. For examining this aspect of the matter the relevant provisions the Act of 2017 have to be seen. Section 69 of the Act deals with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) supplies any goods or services or both without issue of any invoice, in violation of the provisions of this Act or the rules made thereunder, with the intention to evade tax; (b) issues any invoice or bill without supply of goods or services or both in violation of the provisions of this Act, or the rules made thereunder leading to wrongful availment or utilisation of input tax credit or refund of tax; (c) avails input tax credit using such invoice or bill referred to in clause (b); (d) collects any amount as tax but fails to pay the same to the Government beyond a period of three months from the date on which such payment becomes due; (e) evades tax, fraudulently avails input tax credit or fraudulently obtains refund and where such offence is not covered under clauses (a) to (d); (f) falsifies or substitutes financial records or produces fake accounts or documents or furnishes any false information with an intention to evade payment of tax due under this Act; (g) obstructs or prevents any officer in the discharge of his duties under this Act; (h) acquires possession of, or in any way concerns himself in transporting, removing, depositing, ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) of sub-section (1) and sub-section (2) shall, in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, be for a term not less than six months. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences under this Act, except the offences referred to in sub-section (5) shall be noncognizable and bailable. (5) The offences specified in clause (a) or clause (b) or clause (c) or clause (d) of sub-section (1) and punishable under clause (i) of that sub-section shall be cognizable and non-bailable. (6) A person shall not be prosecuted for any offence under this section except with the previous sanction of the Commissioner. 21. From bare perusal of the provisions of Sections 69 and 70 of the Act, it is crystal clear that prosecution can be launched by way of private complaint with the previous sanction of Commissioner, no criminal proceeding can be taken to commence, the persons who are summoned under Section 70(1) and persons whose arrest is authorized under Section 69(1) of the Act are not be treated as persons accused of any offence until a prosecution is launched and that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Magistrate to make an investigation vested with the power of investigation. 116. It may be recalled, in this connection, that Section 202(1) of the Code falling under Chapter XV under the caption Complaints to Magistrates envisages that any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192 of the Code can direct an investigation to be made by a police officer or 'by such other person as he thinks fit'. As regards the conferment of power on such person, sub-section (3) of Section 202 reads: If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. The expression all the powers conferred by this Code on an officer-incharge of a police station will include the powers conferred on the police officer under the relevant provisions of Chapter XII also. 117. M.P. Thakkar, C.J. of the Gujarat High Court (as he then was) speaking for a Division Bench in N.H. Dave, Ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigating a cognizable case; Provided that.................................. It is urged that under sub-section (2) of s. 21 a Central Excise Officer under the Act has all the powers of an officer-in-charge of a police station under chapter XIV of the Code of Criminal Procedure and therefore he must be deemed to be a police officer within the meaning of those words in s. 25 of the Evidence Act. It is true that sub- section (2) confers on the Central Excise Officer under the Act the same powers as an officer-in-charge of a police station has when investigating a cognizable case; but this power is conferred for the purpose of sub-s. (1) which gives power to a Central Excise Officer to whom any arrested person is forwarded to inquire into the charge against him. Thus under s. 21 it is the duty of the Central Excise Officer to whom an arrested person is forwarded to inquire into the charge made against- such person. Further under proviso (a) to sub-s. (2)of s. 21 if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers who are authorised to arrest under Section 69 of the Act are not police officers. That order has been assailed before the Hon'ble Supreme Court in SLP (Cri.) 4430/2019, which was dismissed by the Hon'ble Supreme Court vide its order dated 27.05.2019. 25. Thus from above law laid down by the Hon ble Supreme Court it is quite clear that the authorized officer can only make complaint under Section 190(1) of the Cr.P.C. not submit final report as he is not a police officer. 26. Learned counsel for the petitioners would submit that since the final report has not been submitted and a complaint has been submitted by the Director General of GST Intelligence, they are entitled to get benefit of default bail under Section 167(2) of the Cr.P.C. This submission cannot be accepted in view of above stated legal position, therefore, contention of the petitioner for grant of default bail under Section 167(2) for non-furnishing of final report is rejected. This Court has also examined the factual foundation with regard to submission of complaint on 25.03.2021 which is within 60 days as reflected in the chart made in the foregoing paragraphs of the order. Thus, it is quite c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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