2018 (1) TMI 459 - HC - VAT and Sales Tax

Bail Granted under Section 438 for Multiple Offenses: Conditions & Remand Process Explained

The Court granted bail to the applicant under Section 438 of the CrPC for multiple offenses under the IPC and Gujarat VAT Act. The applicant was directed ... Anticipatory bail under Section 438 of the Code of Criminal Procedure - conditions of anticipatory bail - police remand and magistrate's discretion to order remand - cooperation with investigation and non-tampering with evidence - deposit of passport and restriction on foreign travel - prima facie observations by the court not binding at trialAnticipatory bail under Section 438 of the Code of Criminal Procedure - conditions of anticipatory bail - Admission of the applicant to anticipatory bail in respect of offences for which FIR was registered at C.R. No.I44 of 2016 at Rakhiyal Police Station - HELD THAT: - Having regard to the admitted position that two similarly situated accused had earlier been admitted to anticipatory bail/bail (Criminal Misc. Application No. 11201 of 2017 and Criminal Misc. Application No. 17152 of 2017), the Court found that the petitioner satisfied the requirement for grant of anticipatory bail. The Court therefore enlarged the applicant on anticipatory bail on furnishing a personal bond with one surety, subject to specified conditions. The conditions require the applicant to cooperate with investigation, be available for interrogation, not tamper with witnesses or evidence, furnish and not change address without informing authorities, deposit passport and not leave India without court permission, and to attend the police station on a fixed date and time. [Paras 4, 5]Application allowed and anticipatory bail granted subject to the enumerated conditions.Police remand and magistrate's discretion to order remand - cooperation with investigation and non-tampering with evidence - Right of the Investigating Officer to seek police remand and the applicant's obligations in the event remand is sought - HELD THAT: - The Court clarified that it remains open to the Investigating Officer to apply for police remand before the competent Magistrate; the Magistrate must decide any such application on merits. The applicant is required to remain present before the Magistrate on the first and subsequent dates of hearing of any remand application so that the accused's presence may be treated as judicial custody for the purpose of entertaining the prosecution's remand application. The order preserves the accused's right to seek stay against any remand order, and the Magistrate's power to consider such applications according to law. [Paras 5, 6]Investigating Officer may apply for police remand; Magistrate to decide on merits; applicant must attend remand hearings and may challenge any remand order as permitted by law.Police remand and magistrate's discretion to order remand - anticipatory bail conditions - Effect of any period of police remand on operation of anticipatory bail order - HELD THAT: - The Court provided that if the applicant is remanded to police custody, upon completion of the remand period he shall be set free immediately subject to the other conditions of the anticipatory bail order. This preserves the anticipatory bail order's effect post-remand while ensuring lawful remand proceedings may be conducted. [Paras 6]Completion of any police remand period will not defeat the anticipatory bail; the applicant shall be released immediately thereafter subject to the bail conditions.Prima facie observations by the court not binding at trial - Binding effect of Court's prima facie observations made while enlarging applicant on bail - HELD THAT: - The Court directed that the Trial Court shall not be influenced by any prima facie observations recorded by the High Court in the course of enlarging the applicant on bail. This preserves the Trial Court's independent assessment of evidence and issues at trial. [Paras 7]Trial Court shall disregard the High Court's prima facie observations and decide the issues on merits.Final Conclusion: The application under Section 438 CrPC is allowed; anticipatory bail is granted to the applicant on furnishing the prescribed bond and surety, subject to specified conditions including cooperation with investigation, attendance for remand hearings if sought by the Investigating Officer, deposit of passport/leave restriction, non-tampering with evidence, immediate release after any completed police remand period subject to conditions, and the Trial Court is not to be influenced by the High Court's prima facie observations. Issues: Bail application under Section 438 of CrPC for multiple offenses under IPC and Gujarat VAT Act.Analysis:1. Nature of Offenses: The applicant sought bail under Section 438 of the Code of Criminal Procedure for offenses including Sections 406, 420, 465, 468, 471, 474, 477(A), 120B of the Indian Penal Code and specific sections of the Gujarat Value Added Tax Act, 2003, based on an FIR registered at Rakhiyal Police Station.2. Applicant's Submission: The applicant's advocate argued for anticipatory bail, emphasizing the willingness to comply with all conditions, including cooperation with the investigating agency and the right to oppose any remand sought by the agency.3. Opposition by State: The learned Additional Public Prosecutor representing the State opposed the bail application.4. Precedent: The Court noted that similarly situated accused had been granted anticipatory bail in two other cases, supporting the case for admitting the petitioner to bail.5. Grant of Bail: The Court allowed the application, directing the release of the applicant on bail upon arrest, with a personal bond and surety, subject to various conditions such as cooperation with the investigation, appearance at the Police Station, non-interference with evidence, and restrictions on leaving India without court permission.6. Remand and Judicial Custody: The order allowed the Investigating Agency to apply for police remand, with the applicant required to appear before the Magistrate. The Court clarified the process of remand, the right of the accused to seek a stay against remand, and the immediate release after the completion of the remand period.7. Trial Court Direction: The Trial Court was instructed not to be influenced by the observations made by the High Court during the bail order. The rule was made absolute, permitting direct service of the order.This detailed analysis covers the nature of offenses, arguments presented by both sides, the Court's decision based on precedent, conditions imposed for bail, procedures related to remand and judicial custody, and instructions for the Trial Court regarding the bail order.