Sanjay Kumar Bhuwalka, Neeraj Jain Versus Union of India
GST
2018 (10) TMI 1241 – CALCUTTA HIGH COURT – 2018 (19) G. S. T. L. 591 (Cal.)
CALCUTTA HIGH COURT – HC
Dated:- 9-10-2018
CRAN 2698 of 2018, CRM 3327 of 2018 And CRAN 2700 of 2018, CRM 3328 of 2018
GST
Shivakant Prasad, J.
For the Petitioner : Mr. Sudipto Moitra, Mr. Abhra Mukherjee, Mr. D. Bhattacharyya, Mr. Prasun Mukherjee And Mr. Sauradeep Dutta
For the UOI : Mr. K.K. Maity
ORDER
This is the third round of prayer made for relaxation and/or modification and/or waiver of the conditions of the bail granted on July 9, 2018 and subsequently modified on July 12, 2018 in CRAN 1800 of 2018 whereby this Court granted the petitioners bail in connection with Case No. C 216 of 2018 under Section 131(1)(a)(b)(c) of the Central Goods and Services Tax Act, 2017 on condition of furnishing a bail bond of Rs. 50,00,000/- and on further condition to deposit Rs. 39 crore to the Government Exchequer through the Competen
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ial Leave to Appeal (Crl.) No(s). 6269-6270 of 2018 dated September 12, 2018 whereby the petitioners were granted permission to withdraw the Special Leave Petitions, without prejudice to the liberty available to the petitioner(s) to take recourse to appropriate remedy before an appropriate forum.
Mr. Sudipto Moitra, learned advocate for the petitioners has invited my attention to the order dated August 8, 2018 passed in Criminal Misc. Case No. 4063 of 2018 before the learned Sessions Judge, South 24-Parganas, Alipore wherefrom it is revealed that a co-accused namely, Binod Kumar Kedia @ Vinod Kedia was admitted on anticipatory bail of Rs. 20,000/- with two sureties of Rs. 10,000/- each subject to the compliance of the provisions of Section 438(2) Cr.P.C.
My attention is also invited to an order of bail passed by the Hon'ble High Court of Jharkhand at Ranchi dated September 25, 2018 in B.A. No. 6909 of 2018 whereby the accused was admitted in connection with similar type offence commi
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posed in the Bail Order. Their Lordships had emphasized that while exercising jurisdiction under Section 438(2) of the Cr.P.C, the Court ought only to impose such conditions/terms for enlarging an accused on bail as would ensure that the accused does not abscond. These conditions should not be intended or calculated to carry out and effect recoveries from the accused. In Sandeep Jain v. State of Delhi I(2000) SLT 368 a direction to deposit Rs. 2 lacs apart from furnishing of a bond of Rs. 50,000/- with two solvent sureties was held to be unreasonable.
In Sheikh Ayub v. State of M.P. (2004) 13 SCC 457 the Supreme Court deleted the direction to deposit a sum of Rs. 2,50,000/-, which was the amount allegedly misappropriated by the accused.
In Shyam Singh v. State (2006) 9 SCC 169 the condition that the accused should make a payment of Rs. 1,00,000/- per month after his release on bail was found by the Apex Court not to be justified. It is observed that while it is open to a Court to gra
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under Section 145 of the Cr.P.C. to seek permission from the Court to deposit a sum of money or Government promissory notes in lieu of executing a bond. This is so because a mere deposit of money may in some cases prove to defeat the purpose behind sureties being made available since the source of the monetary deposit is untraceable and an accused can abscond if he finds the deposit to be trivially incommensurate to his freedom.”
Mr. Moitra submits with regard to the statutory right of the petitioners to be released on bail with reference to provisions of Section 167 of the Code of Criminal Procedure and points out that the petitioners though have been admitted on bail but they could not meet the stringent conditions imposed on them and also submitted that the GST Authority/ Investigating Officer has not yet submitted Charge Sheet.
To justify his argument, Mr. Moitra submits with regard to the statutory reReference is also made to a decision in Hitendra Vishnu Thakur & Ors. v. State
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s to be released on bail on account o f the 'default' of the investigating/prosecuting agency and once such an application is made, the court should issue a notice to the public prosecutor who may either show that the prosecution has obtained the order for extension for completion of investigation from the Court under clause (bb) or that the challan has been filed in the Designated Court before the expiry of the prescribed period or even that the prescribed period has actually not expired and thus resist the grant of bail on the alleged ground of 'default'. The issuance of notice would avoid the possibility of an accused obtaining an order of bail under 'default' clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings. It would, therefore, serve the ends sof justice if both sides are heard on a petition for grant of bail on account of the prosecution's ' default'. Similarly, when a report is submitted by the public prosecutor
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of such a notice to the accused or the public prosecutor in the scheme of the Act and no prejudice whatsoever can be caused by the issuance of such a notice to any party. We must as already noticed reiterate that the objection to the grant of bail to an accused on account of the 'default' of the prosecution to complete the investigation and file the challan within the maximum period prescribed under clause (b) of sub-section (4) of Section 20 TADA or within the extended period as envisaged by clause (bb) has to be limited to cases where either the factual basis for invoking the ' default' clause is not available or the period for completion of investigation has been extended under clause (bb) and the like. No other condition like the gravity of the case, seriousness of the offence or character of the offender etc. can weigh with the Court at that stage to refuse the grant of bail to an accused under sub-section (4) of Section 20 TADA on account of the 'default' of the prosecution.”
I
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he investigation associated therewith, any further investigation would continue to relate to the same arrest and hence the period envisaged in the proviso to Section 167(2) would remain unextendable.”
In the case of Union of India through C.B.I. v. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, reported in AIR 2014 SC 3036 my attention is prayed to the observation made in paragraph 21 of the decision which reads thus:-
” Elaborating further, the Court held that if the charge sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished and, therefore, if an accused is entitled to be released on bail by application of the proviso to sub-section (2) of Section 167 Cr.P.C., makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the mater remains pending before the higher forum for considera
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iately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period.
The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not Court's discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.”
In rebuttal Mr. Maity refers to a decision in the case of State of Bihar & Anr v. Amit Kumar @ Bachcha Rai, reported in (2017) 13 SCC 751 to content that where the economic offence is committed, the petitioners are required to be put behind the bar and to hold the trial.
I am unable to accept such contention in view of the fact that
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