Punjab-Haryana High Court
Gopi Chand Chaudhary vs State Of Haryana on 22 December, 2023
Neutral Citation No:=2023:PHHC:165782
CRM-M-57541-2023 -1. 2023:PHHC:165782
218-2 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-57541-2023
Date of Decision:22.12.2023
Gopi Chand Chaudhary ...Petitioner
Vs.
State of Haryana ...Respondent
Coram : Hon'ble Mr. Justice N.S.Shekhawat
Present: Mr. Aman Pal, Advocate
for the petitioner.
Ms. Sheenu Sura, Deputy Advocate General, Haryana.
***
N.S.Shekhawat J.
1. The petitioner has filed the present petition under Section 439 Cr.
P.C with a prayer to grant regular bail to him in case FIR No.646 dated 24.10.2020, under Sections 406,409,419,420,465,467,468,471 of IPC registered at Police Station City, Sirsa, District Sirsa, Haryana.
2. The FIR in the present case was registered on the basis of a complaint filed by Excise and Taxation Officer, Ward No.-5, Sirsa and the same has been reproduced as below:-
OFFICE OF DY EXCISE G TAXATION COMMISSIONER (ST) SIRSA, VANIJYA BHAWAN, BARNALA ROAD SIRSA From Excise Taxation Officer Ward No. 5 Sirsa To, The Superintendent of Police Sirsa No. 3594/dated 11-12-19 Subject-Regarding registration of FIR against Sh. Basant Singh S/o Sh. Motu Singh R/o H. No 900A Chattergarh Patti Sirsa Prop M/s Shree Triputi Traders Sirsa TIN 06302918811 Memo On the subject cited above, it is informed that a firm in the name of M/s Shree Triputi Traders Sirsa TIN 06302918811 is found involved in claiming bogus refund on account of input tax credit. During the assessment period 2011- 12, this dealer has fraudulently obtained refund of Rs. 1496312/-
1 of 10 ::: Downloaded on - 24-12-2023 22:04:08 ::: Neutral Citation No:=2023:PHHC:165782 CRM-M-57541-2023 -2. 2023:PHHC:165782 by using false and fabricated documents which includes sale invoices of cigarettes/Tiles regarding inter state sale to Rajasthan, VAT D-3 forms showing sale of cigarettes/tiles and C forms bearing No. RJ/C/2011-12/000001298. R/C/2009/4444760, R/C/2009/4444752. These refunds were obtained by using the above mentioned C forms procured from the dealers of Rajasthan who used to deal in the trading of tax free commodity i.e. khal, binola etc, on account of showing interstate sale of cigarettes/Tiles against said C forms. On perusal of the record, it has been found that actually dealer has used forged and false documents of sale (as mentioned above) and without making any actual movement of goods during the course of inter state sale, dealer has obtained the refund to the tune of Rs. 1496312/-. This dealer has claimed input tax credit @13.125% 21% on account of purchases of Tiles/cigarettes and further shown disposal of these goods @2% in the course of interstate sale against C forms. On verification from the office of Commercial Taxation Officer Circle A Hanumangarh (Raj) conveyed vide memo No. 580 dated 17.11.2014, it has been found that no taxable against these C forms, tax free goods (khal/Binola) have been shown accounted for which shows that benefit of input tax credit has been claimed and obtained by M/s Shree Triputi Traders Sirsa despite the fact that no tax has been paid at any stage by the dealer. Moreover, claim of sale at concessional rate of tax against C forms has been claimed wrongly. In this way, by claiming false ITC and claiming sales at concessional rate of tax against the C forms by submitting false and fabricated documents, have caused revenue loss amounting to Rs. 3032548/- (Refund Interest) to the State Exchequer as per re-
assessment order No. 1488F dated 13.1.2016. It is accordingly, requested to register FIR against Sh. Basant Singh S/0 Sh. Mota Singh Ro H. No 900A Chattergarh Patti Sirsa, Prop M/s Shree Triputi Traders Sirsa TIN 06302918811 as per relevant provisions/sections of IPC and any ther penal law if applicable, for 2 of 10 ::: Downloaded on - 24-12-2023 22:04:09 ::: Neutral Citation No:=2023:PHHC:165782 CRM-M-57541-2023 -3. 2023:PHHC:165782 investigation in the matter as per law. S/d Chap Singh Excise Taxation Officer Ward no. 5 Sirsa Endst No 3595-96 /TI dated 11- 12- A copy is forwarded to the following for information please:-
1. The Excise Txation Commissioner, Haryana Panchkula 2. The Dy Excise Taxation Commissioner (ST) Sirsa Excise, S/d Chap Singh Excise Taxation Officer Ward no. 5 Sirsa.
3. Learned counsel for the petitioner contends that the petitioner is aged about 70 years and is a senior citizen. The petitioner retired as Joint Commissioner Excise and Taxation, Haryana in the year 2014 and during his entire service career, there has not been even a single complaint against him, except the abovementioned FIR and 21 similar FIRs. He further submits that the petitioner is also suffering from hypertension and diabetes also and deserves sympathetic consideration by this Court. He further submitted that the petitioner remained posted as Deputy Excise and Taxation Commissioner, Sirsa from 2009 to 03.07.2012 and all the refunds during the said tenure as D.E.T.C were approved by the petitioner on the provisional assessment of E.T.O of the Excise Department. He further submits that as per the provisions of Haryana VAT,2003, the responsibility of the D.E.T.C was to approve the refund only after the same has been approved by the E.T.O. He further submits that in the present case, the petitioner has been falsely involved only on the basis of suspicion. Even, otherwise there was no any documentary evidence to connect the petitioner with the alleged crime. He further submits that the petitioner was arrested in the present case on 05.07.2023 and is in custody since then. He further submits that in the present case, the challan has already been presented by the police and the custody of the petitioner will not serve any meaningful purpose.
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4. On the other learned State counsel has vehemently opposed the submissions made by learned counsel for the petitioner on the ground that the serious allegations have been levelled against the present petitioner and does not deserve the concession of bail.
5. I have heard learned counsel for the parties and perused the record.
6. At this stage, it is observed that the object of the bail is to secure the presence of the accused at the trial only. It is also observed that the object of bail is neither punitive nor preventive and deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. Hon'ble the Supreme Court has observed in catena of judgments that when a person is punished by denial of bail in respect of any matter upon which he has not been convicted, it would be contrary to the concept of personal liberty enshrined in the Constitution except in cases where there is reason to believe that he may influence the witnesses. It is appropriate to say that pre-conviction detention should not be resorted to, except in cases of necessity to secure attendance at the trial or upon material that the accused will tamper with the witnesses if left at liberty.
7. Hon'ble the Supreme Court in Gudikanti Narasimhulu and others v. Public Prosecutor, AIR 1978 SC 429 has held as under:-
"Bail or Jail"- at the pre-trial or post-conviction stage - largely hinged on judicial discretion. The learned Judge held that personal liberty was too precious a value of our constitutional system recognised under Article 21 that the crucial power to negate it was a great trust exercisable not casually but judicially, with lively concern for the cost to the individual and the community. It was further held that deprivation of personal freedom must be founded on the most serious considerations 4 of 10 ::: Downloaded on - 24-12-2023 22:04:09 ::: Neutral Citation No:=2023:PHHC:165782 CRM-M-57541-2023 -5. 2023:PHHC:165782 relevant to the welfare objectives of society specified in the Constitution. The learned Judge quoted Lord Russel who had said that bail was not to be withheld as a punishment and that the requirements as to bail were merely to secure the attendance of the prisoner at trial. According to V.R. Krishna Iyer, J., the principal rule to guide release on bail should be to secure the presence of the applicant to take judgment and serve sentence in the event of the Court punishing him with imprisonment. After holding that it makes sense to assume that a man on bail has a better chance to prepare and present his case than one remanded in custody the learned Judge observed that if public justice is to be promoted mechanical detention should be demoted.
8. In Gurbaksh Singh Sibbia etc Vs The State of Punjab, AIR 1980 SC 1632, Hon'ble the Supreme Court has observed as under:-
"Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. The Court has also observed that in which case bail should be granted and in which case it should be refused is a matter of discretion. The court found it interesting to note that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Vs. King Emperor, AIR 1924 Calcutta 476, that the object of bail was to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused was whether it was probable that the party would appear to take his trial and that it was indisputable that bail was not to be withheld as a punishment. The Supreme Court also referred to the observation of the Allahabad High Court in K.N. Joglekar Vs. Emperor, AIR 1931 Allahabad 504, that Section 498 of the Old Code which corresponds to Section 439 of the New Code, conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not 5 of 10 ::: Downloaded on - 24-12-2023 22:04:09 ::: Neutral Citation No:=2023:PHHC:165782 CRM-M-57541-2023 -6. 2023:PHHC:165782 handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. The Allahabad High Court had also observed that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. The Supreme Court referred also the decision of the Allahabad High Court in Emperor Vs. H.L. Hutchinson, AIR 1931 Allahabad 356, wherein it was held that the principle to be deduced from the various sections in the Cr.P.C. was that grant of bail is the rule and refusal is the exception, that as a presumably innocent person, the accused person is entitled to freedom and every opportunity to look after his own case and to establish his innocence and that an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. The High Court had also held that it would be very unwise to make an attempt to lay down any particular rules which would bind the High Court, having regard to the fact that the legislature itself left the discretion of the Court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes bail may be granted but not in other classes. The Supreme Court apparently approved the above views and observations and held (vide paragraph 30) as follows :
"It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
The legal position emerging from the above discussion can be 6 of 10 ::: Downloaded on - 24-12-2023 22:04:09 ::: Neutral Citation No:=2023:PHHC:165782 CRM-M-57541-2023 -7. 2023:PHHC:165782 summarised as follows :
"(a) Personal liberty is too precious a value of our Constitutional System recognised under Article 21 that the crucial power to negate it is a great trust exercisable not casually but judicially, with lively concern for the cost to the individual and the community. Deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objectives of society specified in the Constitution.
(b) As a presumably innocent person the accused person is entitled to freedom and every opportunity to look after his own case and to establish his innocence. A man on bail has a better chance to prepare and present his case than one remanded in custody. An accused person who enjoys freedom is in a much better position to look after his case and properly defend himself than if he were in custody. Hence grant of bail is the rule and refusal is the exception.
(c) The object of bail is to secure the attendance of the accused at the trial. The principal rule to guide release on bail should be to secure the presence of the applicant to take judgment and serve sentence in the event of the Court punishing him with imprisonment.
(d) Bail is not to be withheld as a punishment. Even assuming that the accused is prima facie guilty of a grave offence, bail cannot be refused in an indirect process of punishing the accused person before he is convicted.
(e) Judges have to consider applications for bail keeping passions and prejudices out of their decisions.
(f) In which case bail should be granted and in which case it should be refused is a matter of discretion subject only to the restrictions contained in Section 437(1) of the Criminal Procedure Code. But the said discretion should be exercised judiciously.
(g) The powers of the Court of Session or the High Court to grant bail under Section 439(1) of Criminal Procedure Code are very
7 of 10 ::: Downloaded on - 24-12-2023 22:04:09 ::: Neutral Citation No:=2023:PHHC:165782 CRM-M-57541-2023 -8. 2023:PHHC:165782 wide and unrestricted. The restrictions mentioned in Section 437(1) do not apply to the special powers of the High Court or the Court of Session to grant bail under Section 439(1). Unlike under Section 437 (1), there is no ban imposed under Section 439(1) against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. However while considering an application for Bail under Section 439(1), the High Court or the Court of Sessions will have to exercise its judicial discretion also bearing in mind, among other things, the rationale behind the ban imposed under Section 437(1) against granting bail to persons accused of offences punishable with death or imprisonment for life.
(h) There is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the Courts. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or refusing bail. The answer to the question whether to grant bail or not depends upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.
(i) While exercising the discretion to grant or refuse bail the Court will have to take into account various considerations like the nature and seriousness of the offence; the circumstances in which the offence was committed; the character of the evidence; the circumstances which are peculiar to the accused; a reasonable apprehension of witnesses being influenced and evidence being tampered with; the larger interest of the public or the State; the position and status of the accused with reference to the victim and the witness; the likelihood of the accused fleeing from justice; the likelihood of the accused repeating the offence; the history of the case as well as the stage of investigation etc. In view of so many 8 of 10 ::: Downloaded on - 24-12-2023 22:04:09 ::: Neutral Citation No:=2023:PHHC:165782 CRM-M-57541-2023 -9. 2023:PHHC:165782 variable factors the considerations which should weigh with the Court cannot be Exhaustively set out. However, the two paramount considerations are (i) the likelihood of the accused fleeing from justice, and (ii) the likelihood of the accused tampering with prosecution evidence. These two considerations in fact relate to ensuring a fair trial of the case in a Court of justice and hence it is essential that due and proper weight should be bestowed on these two factors.
(j) While exercising the power under Section 437 of the Criminal Procedure Code in cases involving non-bailable offences except cases relating to offences punishable with death or imprisonment for life, judicial discretion would always be exercised by the Court in favour of granting bail subject to sub-section 3 of Section 437 with regard to imposition of conditions, if necessary. Unless exceptional circumstances are brought to the notice of the Court which might defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life.
(k) If investigation has not been completed and if the release of the accused on bail is likely to hamper the investigation, bail can be refused in order to ensure a proper and fair investigation.
(l) If there are sufficient reasons to have a reasonable apprehension that the accused will flee from justice or will tamper with prosecution evidence he can be refused bail in order to ensure a fair trial of the case.
(m) The Court may refuse bail if there are sufficient reasons to apprehend that the accused will repeat a serious offence if he is released on bail.
(n) For the purpose of granting or refusing bail there is no classification of the offences except the ban under Section 437(1) of the Criminal Procedure Code against grant of bail in the case of offences punishable with death or life imprisonment. Hence there is no statutory support or justification for classifying offences into 9 of 10 ::: Downloaded on - 24-12-2023 22:04:09 ::: Neutral Citation No:=2023:PHHC:165782 CRM-M-57541-2023 -10. 2023:PHHC:165782 different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. When the Court has been granted discretion in the matter of granting bail and when there is no statute prescribing a special treatment in the case of a particular offence the Court cannot classify the cases and say that in particular classes bail may be granted but not in others. Not only in the case of economic offences but also in the case of other offences the Court will have to consider the larger interest of the public or the State. Hence only the considerations which should normally weigh with the Court in the case of other nonbailable offences should apply in the case of economic offences also. It cannot be said that bail should invariably be refused in cases involving serious economic offences.
(o) Law does not authorise or permit any discrimination between a foreign National and an Indian National in the matter of granting bail. What is permissible is that, considering the facts and circumstances of each case, the Court can impose different conditions which are necessary to ensure that the accused will be available for facing trial. It cannot be said that an accused will not be granted bail because he is a foreign national."
9. Admittedly, the petitioner is a senior citizen and is in custody since 05.07.2023. The challan has already been presented against the petitioner and his co-accused.
10. Without commenting on the merits of the case, the present petition is allowed and the petitioner is ordered to be released on bail subject to his furnishing bail bonds/surety bonds to the satisfaction of the trial Court/Duty Magistrate/Chief Judicial Magistrate, concerned.
(N.S.SHEKHAWAT)
22.12.2023 JUDGE
hitesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2023:PHHC:165782
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