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2024 DIGILAW 1017 (GUJ)

Surekha W/o Sanjay Sheth v. State of Gujarat

2024-04-25

J.C.DOSHI

body2024
JUDGMENT : Heard learned Senior Counsel Mr.Jal S Unwala with Mr.Darshan M Varandani, learned advocate for the applicant and learned APP Mr.Soham Joshi, for respondent – State. 2. By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R. No.11205032231414/2023 registered with the Mundra Police Station, Kutch for the offence punishable under Sections 420, 465, 467, 468, 120(B), 201, 472 and 114 of the Indian Penal Code. 3. It is the case of the prosecution in FIR that accused persons with a view to financial gain and with an intention of committing cheating with the Government by making evasion of tax amount had created a forged and fabricated bills of purchase of betel nuts and used them as if they are true and genuine for creating forged documentary evidence and thereby committed the aforesaid offence for which the FIR came to be filed against the accused persons as narrated in the FIR in detail. 4. It is sought to be submitted by learned Senior Counsel Mr.Jal Unwala that petitioner is a lady accused living at Delhi and she is not active partner in Forfox Company Pvt Ltd. (for short ‘the Company’) He would further submit that allegations are made in the FIR to the extent that by forging documents and placing them as genuine one, the said company made evasion of GST running in lacks of rupees. He would submit that though principal allegations is of evasion of duty, GST Department has not issued any notice to the company. He would further submit that though it is alleged that under the pretext of importing salt, betel nuts are imported as to avoid the GST upon betel nuts which is higher than the GST on salt, the concerned GST Department has not registered any case and commenced any proceedings, even did not issue single notice to the company. 4.1 Learned Senior Counsel Mr.Jal S Unwala would further submit that active partners are given regular bail by the concerned Court and therefore principle of parity would attract in the present case. 4.1 Learned Senior Counsel Mr.Jal S Unwala would further submit that active partners are given regular bail by the concerned Court and therefore principle of parity would attract in the present case. He would further submit that one of the accused viz., Mr.Anil Tarun Pandit had filed FIR against the police officers working in crime branch at Gandhidham for the offences punishable under Sections 365, 342, 384, 120-B and 114 of the IPC and under Sections 7, 8, 12, 13 and 13(2) of the Prevention of Corruption Act 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 investigation and would join the investigation as and when required. There are no antecedents against her and therefore there is no flight risk if the petitioner is enlarged on anticipatory bail. 4.4 Upon above submissions, learned Senior Counsel Mr.Jal Unwala prayed to grant anticipatory bail to the petitioner. 5. Per contra, learned APP objecting to grant of this application firstly would submit that even if the offence under the GST Act is attracted; separate FIR for forging documents and placing them as genuine before authority is maintainable. 4.4 Upon above submissions, learned Senior Counsel Mr.Jal Unwala prayed to grant anticipatory bail to the petitioner. 5. Per contra, learned APP objecting to grant of this application firstly would submit that even if the offence under the GST Act is attracted; separate FIR for forging documents and placing them as genuine before authority is maintainable. He would submit that identical submission was made on earlier occasion when one of the accused has sought regular bail prior to filing of the charge-sheet. The co-ordinate Bench has dealt with the said submission and denied to believe that since there is evasion of tax offence under the GST Act can only be made out. He would further submit that it is the prerogative of the Investigating Agency to launch the prosecution under the IPC as the forged and false documents were presented before the authority as genuine to wrongly avail benefits of tax. He would submit that GST Department has its own idea but since false and fabricated documents are presented before the authority for wrongly availing tax input, prima facie, offence under the IPC is made out. He would further submit that in view of statement of one Mr.Ashishkumar Chabhaiya, present petitioner is the main accused and she is one of the main partner in the company and time and again she comes to the office of the company and she knew about the administration of the company and therefore it is incorrect to say that petitioner is sleeping partner. He would further submit that petitioner is absconding since long as in press note dated 29/10/2023 the Gandhidham Police has clearly demonstrated that petitioner is absconding. Not only that, in charge-sheet papers she is slated to be absconding accused and her name is shown in column no.2 which indicates that petitioner is on run and as such she is not co-operating with the investigation and therefore she is not entitled to have anticipatory bail. 5.1 Making above submissions, learned APP would submit to reject this application. 6. In rejoinder, learned Senior Counsel Mr.Unwala referred to the decision in case of Srikant Upadhyay & Ors. vs. State of Bihar & Anr., [2024 SCC Online SC 282] to contend that until the petitioner 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. vs. State of Bihar & Anr., [2024 SCC Online SC 282] to contend that until the petitioner 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 02/12/2023. It appears that there is silent; but unexplained delay on the part of the petitioner. Petitioner approached this Court for seeking anticipatory bail, almost after four months of not granting anticipatory bail from Sessions Court. It is worth to note that the date of filing of the charge-sheet comes between the two applications firstly filed before the Sessions Court and secondly before this Court seeking anticipatory bail. Learned Senior Counsel Mr.Unwalal fails to point out as to why the petitioner waited for four months after the application for anticipatory bail before learned sessions court is rejected. It appears that once the petitioner found her name as absconding in the charge-sheet, she approached this Court seeking for anticipatory bail. 8. Petitioner is concealing from investigation. She is treated as absconding. In column no.2 of the charge-sheet, she is named which prima facie establish that petitioner is running from the investigation, she could not given relief of anticipatory bail being extraordinary in nature. Useful reference can be taken from the judgment Prem Shanker Prasad vs. State of Bihar 2022 14) SCC 516 and Lavesh Versus State (Govt Of Nct Of Delhi) [ 2012 (8) SCC 730 ]. Useful reference can be taken from the judgment Prem Shanker Prasad vs. State of Bihar 2022 14) SCC 516 and Lavesh Versus State (Govt Of Nct Of Delhi) [ 2012 (8) SCC 730 ]. In Lavesh (supra), the Hon’ble Apex court has observed in paragraph 10 as under: “10. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail.” 9. Insofar as the merits of the case is concerned, it appears from the investigation papers that present petitioner is one of the main active partner in the company; the documents were forged and prepared and submitting before the concerned authority as genuine one to imply that salt has been imported; but in reality betel nut was imported. Whether the GST Department has taken any cognizance or not for evasion of tax duty is another aspect; but prima facie, offence of creating a forged and fabricated documents and used them 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. 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 her; (f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern; (h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; (i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.” 11. In case of Pratibha Manchanda and another Vs. State of Haryana and another reported in (2023) 8 SCC 181 , the Hon’ble Apex Court in para 21, observed as under:- “21. The relief of anticipatory bail is aimed at safeguarding individual rights. In case of Pratibha Manchanda and another Vs. State of Haryana and another reported in (2023) 8 SCC 181 , the Hon’ble Apex Court in para 21, observed as under:- “21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome.” 12. In case of P.Chidambaram Versus Central Bureau Of Investigation [ 2020 (13) SCC 337 ], the Hon’ble Apex Court has observed in paragraph 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 . Page 8 of 11 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 judiciously and not in an arbitrary manner. There is no Licenced to : Adv.Urvashi Purohit . Page 8 of 11 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 judiciously and not in an arbitrary manner. At this stage itself, it is necessary for us to indicate that we are unable to accept the contention of the learned Solicitor General that "flight risk" of economic offenders should be looked at as a national phenomenon and be dealt with in that manner merely because certain other offenders have flown out of the country. The same cannot, in our view, be put in a straight-jacket formula so as to deny bail to the one who is before the Court, due to the conduct of other offenders, if the person under consideration is otherwise entitled to bail on the merits of his own case. Hence, in our view, such consideration including as to "flight risk" is to be made on individual basis being uninfluenced by the unconnected cases, more so, when the personal liberty is involved.” 13. 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. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the Court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the Court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. Striking of balance of investigation and personal liberty is another factor needs to be properly weigh. The fact of the case demands custodial interrogation of the petitioner. Striking of balance of investigation and personal liberty is another factor needs to be properly weigh. The fact of the case demands custodial interrogation of the petitioner. Under the circumstances, the petitioner is not entitled for anticipatory bail. 14. For the foregoing reasons, present petition fails and stands dismissed.