Kirtiraj Pankajbhai Sutariya vs. State Of Gujarat

Held

The Court dismissed the application for regular bail. The primary issue addressed was the legality of the arrest. The Court, drawing support from the Supreme Court's decisions in H.N. Rishbud vs. State of Delhi and another case concerning the Prevention of Corruption Act, held that a defect or illegality in the investigation does not necessarily affect the competence or jurisdiction of the court to take cognizance or proceed with the trial. The Court noted that Section 537 of the CrPC allows for proceedings to continue unless the irregularity has occasioned a failure of justice. In this case, the Court found no such failure of justice. While the petitioner argued that the arrest was illegal due to the delegation of power by an in-charge Additional Commissioner, the Court implicitly found this argument insufficient to warrant the exercise of discretion in favour of granting bail. The Court also considered the gravity of the offence and the prima facie involvement of the applicant as argued by the State. Therefore, no case was made out to exercise discretion in favour of the applicant, and the application was dismissed.

Facts

The petitioner, Kirtiraj Pankajbhai Sutariya, filed an application for regular bail under Section 439 of the Code of Criminal Procedure, 1973. The application arose from an investigation registered with the Chief Commissioner of State Tax, Enforcement, Ahmedabad. The petitioner argued that the maximum sentence for the alleged offence is 5 years, that he cooperated with the investigation, and that the offence under the GST Act is compoundable. He also contended that his role was limited to following instructions from co-accused for monetary gain and that he had no involvement in issuing invoices or claiming Input Tax Credit (ITC). Furthermore, he argued that his arrest was unauthorized due to a delegation of power by an in-charge Additional Commissioner, not a duly empowered Commissioner. The State opposed the bail, citing the gravity of the offence involving a fake billing scam and the petitioner's alleged role in procuring documents, fabricating illegal entities, and conducting transactions, supported by WhatsApp chats and seized documents.

Key Issues

1. Whether the arrest of the applicant was illegal due to the delegation of arrest powers by an in-charge Additional Commissioner, thereby vitiating the proceedings under the GST Act? 2. Whether the applicant is entitled to regular bail considering the nature of the offence, his alleged limited role, and the fact that the offence under Section 132(1)(l) of the GST Act is bailable? Petitioner's Arguments: The petitioner argued that the arrest was unauthorized because the delegation of power to the arresting authority (Sales Tax Officer) was made by an in-charge Additional Commissioner, who was holding the post of Joint Commissioner. This, he contended, meant there was no satisfaction of a Commissioner or Additional Commissioner to form a belief that the applicant committed an offence, making the arrest illegal. He also submitted that his role was limited to following instructions, receiving money, and he was not involved in invoice issuance or ITC claims. He further argued that the offence under Section 132(1)(l) of the GST Act is bailable, and the investigation is virtually complete, making his presence unnecessary. The investigation is based on documents and data already in custody. Respondent's Arguments: The respondent-State opposed the bail application, highlighting the nature and gravity of the offence, which involved a fake billing scam defrauding government revenues. They presented evidence of the petitioner's alleged involvement in procuring documents, fabricating entities, and conducting transactions, including banking transactions, supported by WhatsApp chats, seized rubber stamps of a fake company, cheques, PAN cards, and cheque books of bogus firms. The State argued that the investigation is complex, involving the analysis of huge data, and the petitioner's prima facie involvement is established.