TMI Blog2022 (3) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... answered by the discussion that an application under Section 438 Cr.P.C. is only maintainable by a person who has apprehension of his arrest on accusation of having committed a non - bailable offence. Section 132 of the Act lists 12 offences that are punishable with imprisonment and/or a fine. The terms of imprisonment and the amount of fine, is dependent on the amount involved in the offence, or in some cases, the act committed by the offender - In the present case, it is a common ground between the applicants and the opposite party No. 3 that the offences are bailable. Even para-28 of the counter affidavit to the said effect stands unrebutted. The question thus being answered by holding that granting of anticipatory bail does not arise for an offence which is bailable and a direction for the same can be issued only in respect of non-bailable and cognizable offences, the present anticipatory bail application deserves rejection - Application rejected. - Criminal Misc Anticipatory Bail Application U/S 438 CR.P.C. No. - 19059 of 2021 - - - Dated:- 8-3-2022 - Hon'ble Samit Gopal, J. For the Applicant : Atiqur Rahman Siddiqui, Vishakha Pande For the Opposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich tax evasion is less than ₹ 5 crore remain bailable and only most grave offences involving tax evasion above ₹ 5 crore have been made non-bailable and cognizable offences and, as such, the amount in the present dispute is much less than ₹ 5 crore, and, hence the offences are bailable. It is argued that as such the applicant is entitled to be granted anticipatory bail. 7. Per contra, learned counsel appearing for the opposite party no. 3 opposed the prayer for anticipatory bail and argued that the present anticipatory bail application under Section 438 Cr.P.C. is not maintainable inasmuch as the amount involved, which has been availed by M/s V.K. Traders the applicant no. 1 and is an inadmissible Input Tax Credit is ₹ 1,80,86,343/- which is much less than the amount which would make the offence non - bailable and cognizable. 8. This Court without going into the merits of the case proceeds to examine the following question which arises before it for its adjudication : Whether an application under Section 438 Cr.P.C. would lie and is maintainable for an offence which has been declared by the concerned statute as a bailable offence ? 9. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt; and (iv) such other conditions as may be imposed under sub - section (3) of section 437, as if the bail were granted under that section. Explanation: The final order made on an application for direction under sub - section (1); shall not be construed as an interlocutory order for the purpose of this Code. (3) Where the Court grants an interim order under sub - section (l), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (4) On the date indicated in the interim order under sub - section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order. (5) The High Court or the Court of Session, as the case may be, shall finally dispose of an application for grant of anticipatory bail under subsection (l), within thirty days of the date of such application. (6) Provisions of this sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jindi vs. State of Haryana : (2008) 10 SCC 138 the Apex Court has also held that Section 438 Cr.P.C. relates to non - bailable offences and a petition under Section 438 Cr.P.C. in relation to bailable offences is misconceived. 14. In the case of R. K. Krishna Kumar Vs. State of Assam : (1998) 1 SCC 474 it has been held by the Apex Court that anticipatory bail cannot be granted in offences which are bailable. 15. It is thus concluded that the conditions prerequisite for the court's exercise of its discretion under Section 438 Cr.P.C. is that the person seeking such relief must have a reasonable apprehension of his arrest on an accusation of having committed a non-bailable offence. 16. The question thus gets answered by the above mentioned discussion that an application under Section 438 Cr.P.C. is only maintainable by a person who has apprehension of his arrest on accusation of having committed a non - bailable offence. 17. Section 132 of The Central Goods and Services Tax Act, 2017 (hereinafter referred as the 'Act') is as follows: Section 132 : Punishment for certain offences (1) Whoever commits,or causes to commit and retain the benefits arising out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term which may extend to five years and with fine; (ii) in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds two hundred lakh rupees but does not exceed five hundred lakh rupees, with imprisonment for a term which may extend to three years and with fine; (iii) in the case of any other offence where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds one hundred lakh rupees but does not exceed two hundred lakh rupees, with imprisonment for a term which may extend to one year and with fine; (iv) in cases where he commits or abets the commission of an offence specified in clause (f) or clause (g) or clause (j), he shall be punishable with imprisonment for a term which may extend to six months or with fine or with both. (2) Where any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to five years and with fine. (3) The impris ..... X X X X Extracts X X X X X X X X Extracts X X X X
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