Khayatiben Hitendrabhai Shah vs. State Of Gujarat
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The applicant, Khayatiben Hitendrabhai Shah, filed an application under Section 438 of the Code of Criminal Procedure, 1973, seeking anticipatory bail. This application was made in response to a witness summons dated 25.02.2019 issued by the Additional Commissioner of State Tax Enforcement, Gujarat State, Ahmedabad, concerning M/s Arihand Silver and Gold. The applicant apprehended arrest by the SGST. An earlier application for anticipatory bail filed before the learned Sessions Court was disallowed. The applicant contended that a false complaint was created to pressurize her and that she would cooperate with the investigation and trial.
Held
The Court held that the applicant was entitled to anticipatory bail. It considered two primary factors for granting anticipatory bail: the existence of a prima facie case and the requirement for custodial interrogation. The Court found that while the offence involved tax evasion, custodial interrogation was not required at this stage. It also noted that the applicant is a lady. The Court relied on several Supreme Court judgments, including Sushila Aggarwal & Ors. Vs. State (NCT of Delhi)- Anr., Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., and Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab. The applicant was ordered to be released on bail upon executing a personal bond of Rs. 10,000/- with one surety, subject to several conditions, including cooperation with the investigation, appearance on specific dates, not tampering with evidence, and furnishing address. The Court also clarified that the Investigating Officer could file for remand, and the Magistrate would decide it without being influenced by the High Court's observations. The trial court was also directed not to be influenced by the prima facie observations made in this order.
Key Issues
1. Whether the applicant is entitled to anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, considering the nature and gravity of the alleged offence under GST laws? The applicant argued that the complaint was false and frivolous, created to exert pressure, and that she would remain available for investigation and trial. She was willing to abide by all conditions, including those related to remand. The State opposed the grant of anticipatory bail, citing the nature and gravity of the offence, and specifically mentioning a potential loss of more than Rs. 1.5 crore and a stock value of Rs. 184,60,03,978/- as per books. The State also noted that the applicant's husband had already been arrested.
Sections Cited
Section 438
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Cause title — parties, addresses and appearances
ORAL ORDER
Heard learned Advocate Mr. Rohankumar Amin for the Applicant and learned APP Ms. Moxa Thakkar, for the Respondent – State of Gujarat.
By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant has prayed for anticipatory bail for summons to witness dated 25.02.2019 by Additional Commissioner of State Tax Enforcement Gujarat State Ahmedabad for M/s Arihand Silver and Gold, in the event of her arrest by the SGST.
Learned Advocate for the Applicant has submitted that the Applicant is apprehending his arrest in connection the aforesaid witness summons and in this connection the earlier application filed by the Applicant before the learned Sessions Court came to be dis- allowed. Learned Advocate for the Applicant has submitted that just to give criminal colour, a false and frivolous complaint is created to R/CR.MA/5502/2019 ORDER DATED: 29/11/2021 pressurize the present applicant, and therefore, the present application may kindly be allowed.
Learned Advocate for the Applicant has further argued that the applicant will keep himself available during the course of investigation and trial also and will not flee from justice.
Learned advocate for the applicant on instructions states that the applicant is ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for his remand. He further submitted that upon filing of such application by the Investigating Agency, the right of applicant accused to oppose such application on merits may be kept open. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted anticipatory bail.
Learned Additional Public Prosecutor appearing on behalf of the respondent – State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. She has drawn the attention of this Court to the affidavit filed by Mr. Jitendra Ratilal Pandya, Assistant Commissioner of State Tax, Div-8, Enforcement, Surat wherein learned APP has drawn the attention to Para : 9 in which it is stated that there is loss of more than Rs. 1.5 crore. Further it is mentioned that the stock was of Rs. 184,60,03,978/- as per books and therefore it is a serious offence and discretion may not be exercised. She has further submitted that her husband is already arrested and therefore, this application be rejected.
Having heard the arguments advanced by the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, R/CR.MA/5502/2019 ORDER DATED: 29/11/2021 without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant.
This Court has considered following aspects, (a) as per catena of decisions of Hon'ble Supreme Court there are mainly two factors which are required to be considered by this court; (I) prima facie case (ii) requirement of accused for custodial interrogation. Therefore, in the facts and circumstances of the present case, this court is inclined to consider the case of the applicant after considering that firstly the accused is a lady accused and secondly in the present case it is a case under the evasion of tax and thirdly without going into the merits of this case this Court is of the opinion that custodial interrogation is not required and still if it is required then the investigating officer may ask for remand before the Competent Court.
This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Sushila Aggarwal & Ors. Vs. State (NCT of Delhi)- Anr. reported reported at [2011] 1 SCC 694, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at (1980) 2 SCC 565. 10. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with the witness summons on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of R/CR.MA/5502/2019 ORDER DATED: 29/11/2021 like amount on the following conditions: (a) shall cooperate with the investigation and make available for interrogation whenever required; (b) shall remain present at concerned investigating agency in the presence of a lady officer / staff on 22.12.2021 between 11.00 a.m. and 2.00 p.m. for recording of statement if required; (c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any investigating officer; (d) shall not obstruct or hamper the investigation and not to play mischief with the evidence collected or yet to be collected by the police; (e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders; (f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week; and (g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide the remand application without being influenced of the observations made by this Court;
The applicant shall remain present before the learned R/CR.MA/5502/2019 ORDER DATED: 29/11/2021 Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.
Rule is made absolute. Direct service is permitted. (A. C. JOSHI,J) SHRIJIT PILLAI/40
Reproduced from the public record of the Gujarat High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.