2022 (7) TMI 71 - HC - GST

Seeking Bail - Pre-trial incarceration - fraud related to GST invoices - petitioner contends that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family - HELD THAT - A perusal of para 6 of the status report filed by concerned Dy SP it is revealed that the petitioner had confessed during his interrogation that a sum of Rs.10 lacs had fallen to his share. The petitioner is in custody since 26-01-2022 i.e. for five months. Given the period of incarceration viz-a-viz the amount fallen to the petitioner s share coupled with the petitioner being a senior citizen further pre-trial incarceration might not be justiciable. In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB 1980 (4) TMI 295 - SUPREME COURT a Constitutional Bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail - In KALYAN CHANDRA SARKAR VERSUS RAJESH RANJAN @ PAPPU YADAV ANR. 2005 (1) TMI 704 - SUPREME COURT a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him or despite the existence of a prima facie case the Court records reasons for its satisfaction for the need to release such person on bail in the given fact situations. The rejection of bail does not preclude filing a subsequent application. The courts can release on bail provided the circumstances then prevailing requires and a change in the fact situation. The possibility of the accused influencing the investigation tampering with evidence intimidating witnesses and the likelihood of fleeing justice can be taken care of by imposing elaborative and stringent conditions. In SUSHILA AGGARWAL AND OTHERS VERSUS STATE (NCT OF DELHI) AND ANOTHER 2020 (1) TMI 1193 - SUPREME COURT the Constitutional Bench held that unusually subject to the evidence produced the Courts can impose restrictive conditions. Without commenting on the case s merits in the facts and circumstances peculiar to this case and for the reasons mentioned above the petitioner makes a case for bail subject to the following terms and conditions which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC 1973. The petitioner is allowed to be release subject to fulfillment of various condition imposed - bail application allowed.

Summary

ISSUES PRESENTED and CONSIDERED

The primary issue considered in this judgment is whether the petitioner, accused of fraud related to GST invoices and charged under various sections of the Indian Penal Code (IPC) and the GST Act, should be granted bail under Section 439 of the Code of Criminal Procedure, 1973 (CrPC). The Court also considers the conditions under which bail can be granted, examining the potential risks of the petitioner influencing the investigation, tampering with evidence, or fleeing from justice.

ISSUE-WISE DETAILED ANALYSIS

Relevant Legal Framework and Precedents

The Court references several precedents to guide its decision on bail. In Gurbaksh Singh Sibbia v State of Punjab, the Supreme Court emphasized considering the cumulative effect of various circumstances in bail decisions. Kalyan Chandra Sarkar v Rajesh Ranjan highlighted that bail could be granted if a prima facie case is not established or if the court finds reasons to release the accused on bail. The principle of "bail, not jail" was underscored in State of Rajasthan v Balchand, suggesting bail should be granted unless there are compelling reasons to deny it. The discretion of the judge in granting bail was emphasized in Dataram Singh v State of Uttar Pradesh.

Court's Interpretation and Reasoning

The Court considers the duration of the petitioner's incarceration, the amount allegedly involved, and the petitioner's status as a senior citizen. It reasons that further pre-trial incarceration might not be justifiable given these factors. The Court also considers the possibility of imposing conditions to mitigate risks associated with granting bail, such as influencing the investigation or fleeing from justice.

Key Evidence and Findings

The status report reveals that the petitioner confessed to receiving a share of Rs. 10 lacs from the fraudulent activities. The petitioner has been in custody for five months, and there is no indication of prior criminal antecedents. The Court finds these factors significant in its decision-making process.

Application of Law to Facts

The Court applies the principles from the cited precedents to the facts of the case, determining that the petitioner makes a case for bail. It considers the petitioner's age, the amount involved, and the duration of custody as mitigating factors. The Court also outlines specific conditions to ensure the petitioner does not interfere with the investigation or abscond.

Treatment of Competing Arguments

The State opposes the bail, likely arguing the seriousness of the charges and the potential risk of the petitioner influencing the investigation. The Court addresses these concerns by imposing stringent bail conditions to mitigate such risks.

Conclusions

The Court concludes that the petitioner should be granted bail, subject to specific conditions designed to ensure compliance and prevent interference with the judicial process.

SIGNIFICANT HOLDINGS

Core Principles Established

The judgment reinforces the principle that bail should be the norm unless there are compelling reasons to deny it. It emphasizes the importance of considering the cumulative effect of various circumstances and the potential for imposing conditions to mitigate risks associated with granting bail.

Final Determinations on Each Issue

The Court determines that the petitioner is entitled to bail, subject to conditions including furnishing a personal bond and surety, providing financial disclosures, and adhering to specific behavioral expectations. The Court also provides flexibility in the form of bail, allowing the petitioner to choose between surety bonds and fixed deposits.

Verbatim Quotes of Crucial Legal Reasoning

"The pragmatic approach is that while granting bail with sureties, the 'Court' and the 'Arresting Officer' should give a choice to the accused to either furnish surety bonds or to handover a fixed deposit, or direct electronic money transfer where such facility is available, or creating a lien over his bank account."

"The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously, compassionately, and in a humane manner."

The Court's decision to grant bail reflects a balanced approach, considering both the rights of the accused and the interests of justice, while setting out clear conditions to address potential risks. The judgment highlights the importance of judicial discretion and the need for conditions that are reasonable and capable of compliance.