9911796707
TMI Blog2025 (3) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... ces Tax Act, 2017 (for short 'CGST Act') read with the corresponding provisions of the Punjab Goods and Services Tax Act, 2007 (for short 'PGST Act'), and the Integrated Goods and Services Tax Act, 2017 (for short 'IGST Act'). According to the allegations in the complaint, co-accused Sahil Jain was the principal orchestrator of a fraudulent scheme involving fake transactions. He allegedly created 14 firms in the names of his family members and close associates, designating them as proprietors or partners. By generating fictitious invoices, he unlawfully availed ineligible input tax credit and further passed on fraudulent input tax credits to purchasers based on these fabricated invoices amounting to Rs. 17.65 crores. The petitioner was arrested in connection with the case on 12.01.2021. However, the prosecution failed to complete the investigation and to file the final report under Section 173 of Cr.P.C. within the statutory period of 60 days. Consequently, petitioner Pawan Kumar moved an application under Section 167 (2) of Cr.P.C. seeking default bail. The said application was allowed and he was accordingly granted bail vide order dated 15.03.2021 subject to his furnishing bail b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violate the fundamental right as enumerated in Article 21 of the Constitution of India, grossly infringing the personal liberty of the petitioner. Lastly, it is contended that the maximum punishment as prescribed under Section 132 of CGST Act is five years and woefully, the petitioner has already undergone more than 4 years of custody. This is all the more egregious given that, till date, the charges have not been framed against the petitioner and the trial is yet to commence. 4. Per contra, learned counsel for the respondent submits that the conditions imposed upon the petitioner cannot be said to be stringent or onerous, given that the petitioner and his co-accused are involved in a serious economic offence, causing loss worth crores of rupees to the Government exchequer. The petitioner, in connivance with co-accused namely Sahil Jain, created bogus firms in his name and issue GST invoices without any movement of goods. The petitioner also made a voluntary statement dated 11.01.20121, wherein he admitted the fact regarding opening different firms on asking of Sahil Jain in lieu a handsome reward. He also provided his Aadhar Card and PAN Card to create and register fake firms as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in case he do not hold any passport his undertaking in form of an affidavit that he will not get any passport issued in his name without permission of the court. 4. Accused shall not commit any offence of like nature or any other offence punishable under law. 5. Accused shall not try to influence the witnesses of the prosecution or tamper with the evidence. 6. Accused shall not change his appearance during the course of trial. 7. Accused shall not change his address without prior intimation to this Court. 8. Accused shall not induce, threat or promise any witness to refrain him/her from deposing in the case during the investigation or trial. Accused shall make available himself before I.O./Authority holding investigation to assist the investigating machinery as and when called upon to appear before the authority concerned till final investigation or as and when directed by the Court and accused will cooperate with the investigation even during his release on bail. 9. In case of default by the accused in complying with the conditions of bail enumerated above, his bail shall be cancelled, his bail bonds and surety bonds liable to be canceled and forfeited to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onomic condition of the accused, may take help of the Probation Officers or the Para Legal Volunteers to prepare a report on the socio-economic conditions of the inmate which may be placed before the concerned Court with a request to relax the condition(s) of bail/surety. 5) In cases where the undertrial or convict requests that he can furnish bail bond or sureties once released, then in an appropriate case, the Court may consider granting temporary bail for a specified period to the accused so that he can furnish bail bond or sureties. 6) If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation. 7) One of the reasons which delays the release of the accused/ convict is the insistence upon local surety. It is suggested that in such cases, the courts may not impose the condition of local surety." 8. Adverting to the matter at hand, it appears that, in violation of the above-mentioned directions, the District Legal Services Authority (for short 'DLSA') has made no efforts to assist the petitioner in securing his release. Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond: Provided also that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. Explanation.-In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded. (2) Notwithstanding anything in sub-section (1), and subject to the third proviso thereof, where an investigation, inquiry or trial in more than one offence or in multiple cases are pending against a person, he shall not be released on bail by the Court. (3) The Superintendent of jail, where the accused person is detained, on completion of one-half or one-third of the period mentioned in sub-section (1), as the case may be, shall forthwith make an application in writing to the Court to proceed under subsection (1) for the release of such person on bail. 10. While the complaint (supra) was filed before the enactment of the BNSS, the provision of Section 479 BNSS would still be applicable to the present case, as the same has been given retrospective effect by the Hon'ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h as furnishing surety bonds of Rs. 1.10 crore from each of the two sureties as well as a bank guarantee to the tune of Rs. 55.00 lakhs have been imposed as a pre-requisite for grant of bail. This Court is of the considered opinion that such an approach is antithetical to the principles of justice and fairness. The primary objective of bail is to ensure the appearance of the accused at trial, and this objective can be achieved by releasing him on bail and imposing reasonable conditions. A surety bond of such exorbitant value cannot be deemed reasonable in good conscience, as it effectively places a monetary price on liberty, which is inherently invaluable. Judicial custody, it must be underscored, is preventive in nature and not punitive. Therefore, deprivation of liberty must not be used as a form of punishment but rather as a measure of last resort to secure the ends of justice. 13. Further still, the imposition of such an egregious condition would, in almost all cases, result in the accused being unable to furnish the required surety, thereby depriving them of their liberty and subjecting them to the harsh realities of jail life. The psychological and physical toll of incarcera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has done more harm than good." 15. Further, the Hon'ble Apex Court in Hussainara Khatoon and others vs. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98, speaking through Justice P.N. Bhagwati, highlighted the dire state of affairs and opined as follows: "4. It is high time that our Parliament realises that risk of monetary loss is not the only deterrent against fleeing from justice, but there are also other factors which act as equal deterrents against fleeing. Ours is a socialist republic with social justice as the signature tune of our Constitution and Parliament would do well to consider whether it would not be more consonant with the ethos of our Constitution that instead of risk of financial loss, other relevant considerations such as family ties, roots in the community, job security, membership of stable organisations etc., should be the determinative factors in grant of bail and the accused should in appropriate cases be released on his personal bond without monetary obligation. Of course it may be necessary in such a case to provide by an amendment of the penal law that if the accused wilfully fails to appear in compliance with the promise contained in his persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Guddan alias Roop Narayan Vs. State of Rajasthan, 2023 SCC OnLine 1242, addressed the issue of excessive bail conditions imposed by the High Court. In this case, the High Court had required the accused to deposit Rs. 1,00,000 along with surety of an additional Rs. 1,00,000 and two further bail bonds of Rs. 50,000 each. The Hon'ble Supreme Court found these conditions to be excessive, effectively amounting to a denial of bail. The Court noted that since the appellant was unable to arrange the required amount and remained in jail as a result, it was evident that the conditions imposed were beyond his financial capacity. Similarly, in Saravanan Vs. State represented by the Inspector of Police, (2020) 9 SCC 101, the Hon'ble Apex Court examined a case involving default bail and held that the High Court had committed a serious error by directing the appellant to deposit Rs. 8,00,000 as a condition for release. The Court emphasized that the considerations for granting default bail under Section 167 (2) of Cr.P.C. differ from those applicable to regular bail under Section 437 of Cr.P.C. Furthermore, another condition requiring the appellant to report daily at the police station until furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l itself was an indefeasible statutory and constitutional right, reflects a glaring miscarriage of justice. The right to liberty cannot be rendered illusory by administrative inaction or judicial indifference. The present case highlights the urgent need for strict adherence to statutory safeguards meant to prevent arbitrary detention, lest the criminal justice system becomes complicit in perpetuating prolonged and unjustified incarceration. CONCLUSION 22. Correspondingly, the above cited legal query is answered in the below mentioned terms: The imposition of stringent financial and other onerous conditions while granting default bail under Section 167 (2) of Cr.P.C. or under Section 187 (3) of BNSS, and bail under Section 479 of BNSS is impermissible. The concerned Court must first ascertain from the accused whether he is prepared to furnish bail, and upon an affirmative response, grant default bail on reasonable conditions. The Court granting bail should, as far as possible, should endeavour to release the accused on personal bond in such cases. It is imperative that the test of reasonableness be satisfied at the time of passing the bail order. Bail cannot be rendered illusory ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
