Anticipatory Bail Plea Not Maintainable In Case Of A Bailable Offence: Allahabad High Court

The Allahabad High Court has held that an application for grant of Anticipatory bail under Section 438 Cr.P.C. is not maintainable in case of an offence that has been declared by the concerned statute as a bailable offence.

The Bench of Justice Samit Gopal further clarified that anticipatory bail does not arise for an offence that is bailable and a direction for the same can be issued only in respect of non-bailable and cognizable offences.

The Court issued this clarification on an anticipatory bail plea filed by one Vipin Kumar who is involved in a dispute relating to an amount of Rs.1,80,86,343/- which is stated to be prima facie availed by M/s V.K. Traders (applicant being its sole proprietor) as an inadmissible Input Tax Credit (ITC).

Moving to the Court seeking pre-arrest bail, the applicant (booked under Section 132 of CGST ACT 2017) argued that all the offences in which tax evasion is less than Rs. 5 crores remain bailable and only most grave offences involving tax evasion above Rs. 5 crores have been made non-bailable and cognizable offences and, as such, since the amount in the instant dispute is much less than Rs. 5 crores, and, hence the offences are bailable.

On the other hand, the opposite party questioned the maintainability of the anticipatory bail application by arguing that the amount involved is much less than the amount (Rs. 5 crores) which would make the offence non-bailable and cognizable.

Against this backdrop, the Court, at the outset examined the question as to whether an application under Section 438 Cr.P.C. would lie and is maintainable for an offence which has been declared by the concerned statute as a bailable offence ?

Referring to Section 438 of CrPC [Direction for grant of bail to person apprehending arrest] as introduced in the State of Uttar Pradesh on June 6, 2019, the Court noted 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". 

In this regard, the Court also referred to Apex Court's ruling in the cases of Joginder @ Jindi vs. State of Haryana : (2008) 10 SCC 138 and R. K. Krishna Kumar Vs. State of Assam : (1998) 1 SCC 474, wherein it had been held that anticipatory bail cannot be granted in offences that are bailable.

Against this backdrop, the Court came to the following conclusion:

"...conditions prerequisite for the court's exercise of its discretion under Section 438 Cr.P.C. is that the person seeking such relief must have a reasonable apprehension of his arrest on an accusation of having committed a non-bailable offence. 16. The question thus gets answered by the above-mentioned discussion that an application under Section 438 Cr.P.C. is only maintainable by a person who has apprehension of his arrest on accusation of having committed a non-bailable offence."

Further, referring to Section 132 of the CGST Act, under which the bail applicant has been booked, the Court noted that it lists out 12 offences that are punishable with imprisonment and/or a fine.

The Court also observed that 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 and the provision further categorises certain offences as cognizable and non-bailable, if the amount involved exceeds Rs. 500 lakhs (5 Crores).

In this regard, noting that it is a common ground between the applicants and the opposite party No. 3 that the offences are bailable since the amount involved is less than 5 Crores, therefore, the instant anticipatory bail application was rejected on the ground that no such plea lies for an offence which is bailable. 

Case title - M/S V.K. Traders v. Union Of India And 3 Others
Case citation: 2022 LiveLaw (AB) 100

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