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TMI Blog2024 (3) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... urfacing in the matter and as such ignoring the question of issuance of non-bailable warrant against the applicant during investigation, as of now, the Court has considered the matter on its own merit. In Pokar Ram v. State of Rajasthan and others [ 1985 (4) TMI 341 - SUPREME COURT] the Apex Court had observed that relevant considerations governing the court's decision in granting anticipatory bail under Section 438 Cr.P.C. are materially different from those when an application for bail by a person who is arrested in the course of investigation. It further held that courts must be cautious and circumspect in exercising powers of anticipatory bail as it intrudes the sphere of investigation. In the case of Central Bureau of Investigation Vs. Santosh Karnani and another [ 2023 (4) TMI 1302 - SUPREME COURT] the law of anticipatory bail was reiterated. It was further held that corruption poses a serious threat to our society and must be dealt with iron hands. It not only leads to abysmal loss to the public exchequer but also tramples good governance. The common man stands deprived of the benefits percolating under social welfare schemes and is the worst hit. It is held that there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal name of the business entity. The details of both the registrations as available on the GST portal which were enclosed with the complaint. It is further stated that registered address mentioned in the given two registrations are for 03AUSPD7067N1Z3 as 787, Ground Floor, Railway Office, ATI Road, Ludhiana, Punjab, 141008 and for 27AUSPD7067N1ZT as 172 Sau Alakatal Uttamrao Nikalaje Path, Solapur, Maharashtra, 413003. The said registrations have not been obtained with his permission and he is totally unaware of the person who applied for the registrations and whose contact details are updated for the registration. The said two registrations are already authenticated for Aadhaar verification whereas as on date no e-mail ID and mobile number is linked with his Aadhaar. He has further learnt that some registration has been applied in the Union Territory of Delhi, however, the same got rejected by the GST authorities. The acknowledgement number generated after filing of an application for registration is AA070323054161Q. He requests that a complaint be registered under relevant sections. 4. Learned counsel for the applicant argued the following:- (i) The applicant is not named in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.08.2023, the house of the applicant was raided where he was not found, he is absconding till date and not co-operating in the investigation. (ii) A Special Investigation Team (S.I.T.) has been constituted for investigation of the present case since it is relating to a nationwide cheating and forgery. (iii) The registration of forged GST firms have been done to avail Input Tax Credit in a forged manner which has caused huge monitory loss to the State Exchequer. (iv) Co-accused Gaurav Singhal has stated about the work of syndicate and specifically states that the persons involved in it are instrumental in making forged IDs using SIM cards from which fake GST firms are registered and forged billings are shown from the said firms which which they earn money illegally. (v) While placing paragraph 12 15 of the counter affidavit it is submitted that the investigation till date has shown that there is a gang in which several persons are involved in this nexus and have together claimed Input Tax Credit of Rs. 26,452,895,600/- (Rupees Two Thousand Six Hundred Forty Five Crore Twenty Eight Lakh Ninety Five Thousand and Six Hundred) which has caused a loss to the revenue to the said extent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief of anticipatory bail:- (i) State of M.P. Vs. Pradeep Sharma: (2014) 2 SCC 171 ; (paragraph 10). (ii) Prem Shankar Pradad Vs. State of Bihar and another: (2022) 14 SCC 516 ; (paragraph 10.2 10.3). (xi) The anticipatory bail of the applicant be thus rejected. 6. After having heard learned counsels for the parties and perusing the records, it is evident that the allegation in the first information report is of GST registration of two fake firms using the details of the informant. Looking to the nature of offence an S.I.T. was constituted which is investigating the matter. The participation of some accused surfaced initially on the basis of information received through secret informer. Subsequently the names of accused involved in the said work started to be disclosed by accused persons whose complicity surfaced and were arrested. It then transpired that this activity is PAN India scam. The Input Tax Credit was availed by the accused persons on forged and fictitious papers by registering bogus firms and without any business activity. The embezzlement till date as discovered in the on going investigation and also as reported by the DGGI Unit, Ghaziabad of the GST department shows lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565 : 1980 SCC (Cri) 561] clearly lays down that the distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest . Unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. A direction under Section 438 is intended to confer conditional immunity from the touch as envisaged by Section 46(1) or confinement. In para 31, Chandrachud, C.J. clearly demarcated the distinction between the relevant considerations while examining an application for anticipatory bail and an application for bail after arrest in the course of investigation. Says the learned Chief Justice that in regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. 9. In the case of Central Bureau of Investigation Vs. Santosh Karnani and another : 2023 SCC Online SC 427 the law of anticipatory bail was reiterated. It was further held that corruption poses a serious threat to our society and must be dealt with iron hands. It not only leads to abysmal loss to the public exchequer but also tramples good governance. The common man stands deprived of the benefits percolating under social welfare schemes and is the worst hit. It is held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garwal v. State (NCT of Delhi), (2020) 5 SCC 1, the Constitution Bench reiterated that while deciding applications for anticipatory bail, courts should be guided by factors like the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case. 24. The time-tested principles are that no straitjacket formula can be applied for grant or refusal of anticipatory bail. The judicial discretion of the Court shall be guided by various relevant factors and largely it will depend upon the facts and circumstances of each case. The Court must draw a delicate balance between liberty of an individual as guaranteed under Article 21 of the Constitution and the need for a fair and free investigation, which must be taken to its logical conclusion. Arrest has devastating and irreversible social stigma, humiliation, insult, mental pain and other fearful consequences. Regardless thereto, when the Court, on consideration of material information gathered by the Investigating Agency, is prima facie satisfied that there is something more than a mere needle of suspicion against the accused, it cannot jeopardise the investigation, more so when the allegations are grave i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement : (2019) 9 SCC 24 , the Apex Court while dealing with an anticipatory bail in a matter relating to economic offence held as under: Grant of anticipatory bail in exceptional cases 69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. **************** ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. (emphasis supplied) 82. Referring to Dukhishyam Benupani v. Arun Kumar Bajoria [Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC 52 : 1998 SCC (Cri) 261 ], in Directorate of Enforcement v. Bher Chand Tikaji Bora [Directorate of Enforcement v. Bher Chand Tikaji Bora, (1999) 5 SCC 720 : 1999 SCC (Cri) 1045], while hearing an appeal by the Enforcement Directorate against the order [Bherchand Tikaji Bora v. State of Maharashtra, Criminal Application No. 2140 of 1998, decided on 21-7-1998 (Bom)] of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail. 83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore particularly, observed in the case of P. Chidambaram (supra) in case of economic offences, which are having an impact on the society, the Court must be very slow in exercising the discretion under Section 438 of Cr.P.C. 13. In the case of Pratibha Manchanda v. State of Haryana : (2023) 8 SCC 181 the Apex Court has enumerated the factors for considering the relief of anticipatory bail. It has been held as under: 21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ens ..... 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