Umesh A. Trivedi, J
[1.0] This application is filed under Section 438 of the Code of Criminal Procedure, 1973 praying for an order in the nature of anticipatory bail in connection with an offence registered as C.R.No.11189004210002 of 2021 with ‘B’ Division Police Station, Morbi City, Morbi for the offence punishable under Sections 406, 409 and 420 of the Indian Penal Code as also under Sections 85(1)(d) and 85(1)(g) of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as “the Act, 2003”).
[2.0] Heard Mr. Nirupam Nanavaty, senior advocate, learned counsel assisted by Mr. Yash Nanavaty, learned advocate for the applicant. According to his submission, the offence alleged under Sections 85(1)(d) and 85(1)(g) of “the Act, 2003” is not made out as applicant being Director of a Company cannot be said to have defaulted in payment of assessed tax on filing of self assessed returns and on even assessment made by the authority when their appeal is already pending before the Appellate Forum. He has further submitted that considering sub-section (g) of Section 85(1) of “the Act, 2003”, the applicant cannot be said to have willfully attempted to evade tax leviable in this case as against the order of assessment of tax by the authority when there is an appeal still pending before the Appellate Forum. He has further submitted that so far as invoking provisions of IPC into this is also out of place. He has further, drawing attention of the Court to Sections 87 and 88 of “the Act, 2003”, submitted that without invoking provisions of the Penal Code, the Officer concerned could not have registered an FIR, may be he was entitled to investigate the offence as offence under “the Act, 2003” is made cognizable.
[2.1] He has further submitted that offences under “the Act, 2003”, though cognizable, are bailable. He has further submitted that if prosecution would have been filed only for an offence under “the Act, 2003”, he would not have asked for an order of anticipatory bail. He has further submitted that the first informant, with a view to see that seriousness is added to the offence and FIR can be registered before the Police, wrongfully invoked provisions of IPC instead of investigating into the offence under “the Act, 2003” himself. He has submitted that since the date of filing of this application and when matter was first heard, the applicant was protected by the Court. He has further submitted that all other Directors, who are also named in the FIR, have been enlarged on anticipatory bail by this Court as also Sessions Court.
[2.2] In the case of Yunus Zia s/o Ziyula Sherif, who is also one of the Directors and also shown as accused in the FIR, this Court has granted anticipatory bail vide order dated 03.01.2023 in Criminal Misc. Application No.17002 of 2022. Therefore, he has submitted that the applicant is also required to be enlarged on anticipatory bail.
[3.0] As against that, Mr. Mitesh Amin, senior advocate, learned Public Prosecutor has submitted that as such by not filing true and correct returns under “the Act, 2003” they have deprived the State of huge amount by way of Value Added Tax and they misappropriated the same to their own use and therefore, they have not only prosecuted for the offence under “the Act, 2003” but also under the provisions of the IPC. He has further submitted that as such other Directors have been enlarged on anticipatory bail and on the ground of parity this application may be considered, but independently it is not required to be granted.
[4.0] Having heard Mr. Nanavaty, senior advocate, learned counsel for the applicant as also learned Public Prosecutor and going through the impugned FIR as also the papers of investigation and the documents annexed with the application, it appears that offence under “the Act, 2003” are bailable and therefore, the applicant is not entitled to anticipatory bail as it could be granted in a non-bailable offence only but for invoking Sections 406, 409 and 420 of IPC, this application would become maintainable. Not only that, the amount due as tax shown in the FIR appears to be huge. Since statutory appeal under “the Act, 2003” is already pending, prima-facie, without examining in detail the provisions of “the Act, 2003”, it cannot be said to have been evaded right now when the FIR is filed. At the same time, when other Directors, who are also similarly situated, have also been granted an order of anticipatory bail by the Coordinate Bench of this Court, more particularly, when the applicant is protected since 09.02.2021, I see no reason to reject this application praying for an order of anticipatory bail.
In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to FIR registered as C.R.No.11189004210002 of 2021 with ‘B’ Division Police Station, Morbi City, Morbi on his executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions:
(a) shall cooperate with the investigation and make himself available for interrogation whenever required;
(b) shall remain present at concerned Police Station on 13.03.2023 between 11.00 a.m. and 2.00 p.m.;
(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 police officer;
(d) shall not obstruct or hamper the police 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 it on merits;
[6.0] Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned 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.
[7.0] 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 to the aforesaid extent. Direct service is permitted.
