The Allahabad High court has held that Anticipatory Bail does not arise for an offence which is bailable, but for non-bailable and cognizable offences.
The anticipatory bail application under Section 438 of the Code of Criminal Procedure, 1973 has been filed by the applicant’s M/s V.K. Traders and Vipin Kumar 1st and 2nd applicant respectively before the High Court directly without approaching the Sessions Judge.
The counsel for the opposite party opposed the prayer for anticipatory bail and argued that the present anticipatory bail application under Section 438 CrPC is not maintainable inasmuch as the amount involved, which has been availed by M/s V.K. Traders are Input Tax Credit of Rs.1,80,86,343/- which is much less than the amount which would make the offence non-bailable and cognizable.
According to section 132 of the Act 12 offences are punishable with imprisonment and/or a fine. The terms of imprisonment and the amount of fine, is dependent on the amount involved in the offence, or in some cases, the act committed by the offender. The provision further categorizes certain offences as cognizable and non-bailable, if the amount involved exceeds Rs. 500 lakhs, as stated in clause-5 of the Section. These offences relate to person who supply goods or services without issuing invoices, or issue invoices without supplying goods or services and thus wrongfully avail Input Tax Credit, or to persons who collect tax but fails to pay it to the Government beyond a period of three months from the date on which payment becomes due. All other offences listed under the Act have been categorized as non-cognizable and bailable, as per clause-4 of the Section.
The single bench of Justice Sri Samit Gopal without going into the merits of the case proceeds to examine whether an application under Section 438 CrPC would lie and is maintainable for an offence which has been declared by the concerned statute as a bailable offence. It was held by the court by rejecting the application that “The provision of anticipatory bail as per its scheme can be invoked by a person who has a “reason to believe that he may be arrested” for committing a “non – bailable offence” and resultantly, the question thus being answered by holding that granting of anticipatory bail does not arise for an offence which is bailable and a direction for the same can be issued only in respect of non-bailable and cognizable offences, the present anticipatory bail application deserves rejection and, accordingly, it is rejected”.
M/S V.K. Traders VS Union Of India
CITATION: 2022 TAXSCAN (HC) 117
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