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TMI Blog2024 (4) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. - HONOURABLE MR. JUSTICE J. C. DOSHI Appearance: For the Applicant : Mr. Jal S Unwala, Senior Counsel With Mr Darshan M Varandani (7357). For the Respondent : Mr Soham Joshi App. CAV JUDGMENT Heard learned Senior Counsel Mr. Jal S U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and thus the police has taken the revengeful action. He would further submit that in this FIR some of the police officials are behind bars and some of them denied bail and thus police has with a view to take revenge filed the present FIR, falsely implicating the present petitioner. 4.2 Learned Senior Counsel Mr. Jal Unwala would further submit that under Section 132 of the GST Act, punishment of certain offences are defined which may extend to five years or with fine and in view of sub-section (6) of Section 132, the person cannot be prosecuted for any offence under the GST Act; except with the previous sanction of Commissioner. He would further submit that though in the present case FIR is filed under the various provisions of IPC, in true sense it is the FIR for evasion of tax benefits and therefore the GST Act would also be attracted in the present case and in absence of any previous permission from the Commissioner to prosecute the petitioner, launching of prosecution against the petitioner itself is invalid and thus the petitioner may be enlarged on anticipatory bail. 4.3 Learned Senior Counsel Mr. Jal S Unwala would further submit that petitioner is readily available for in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner is declared as proclaimed offender or absconding, it cannot be said that the petitioner is running away from the investigation and she is not co-operative with the investigation. It is therefore submitted to allow this application. 7. Having heard the learned advocates appearing for the rival sides, at the outset, certain dates are required to be noted. On 29/10/2023, three days after filing of the FIR, Gandhidham B Division Police Station declared that the petitioner is running and not co-operating with the investigation. Charge-sheet in the present case against other accused is filed on 23/01/2024. In column no.2 (Annexure-H), it is clearly mentioned that petitioner is not found despite the police has repeatedly tried to contact and therefore, no charge-sheet is filed against the petitioner. Thereby the status of petitioner is termed as absconding accused. This indicates absconding nature of the petitioner. The petitioner, knowing fully well about filing of the charge-sheet on 23/01/2024, approached this Court only on 04/04/2024 seeking anticipatory bail. She approached the learned Sessions Court on 07/11/2023 and the said application came to be decided against her on 02/12/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. In case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat reported in AIR 2015 SC 3090 , the Hon ble Apex Court delineated the following factors and parameters that needs to be taken into consideration while dealing with the anticipatory bail. (a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (c) The possibility of the applicant to flee from justice; (d) The possibility of the accused's likelihood to repeat similar or other offences; (e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ph 22 as under: 22. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. NCT, Delhi and another (2001) 4 SCC 280). There is no Licenced to : Adv.Urvashi Purohit. hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the court has to be exercised judi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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