Punjab and Haryana HC grants Regular Bail (u/s 439 of CrPC) to CA Gaurav Dhir in Gurgaon Refund Case

Title: Gaurav Dhir vs CGST
Court: Punjab and Haryana High Court
Citation: CRM-M-29703-2022 (O&M)
Dated: 10-Oct-2022

Facts of the case

The petitioner is a Chartered Accountant by qualification, who was initially registered but had subsequently given it up. In the present case, he had been paid professional fee for uploading of the refund of Input Tax Credit.

The petitioner and his co-accused CA. Sunil Mahalawat were colleagues, as such the UDIN was borrowed by the petitioner from him for uploading and issuance of the CA certificate.

Thereafter, he was sent to the judicial remand but no request for police remand had been sought by the respondent-Department.

The recovery of laptop and other relevant documents have already been effected from the petitioner. He further submits that the entire investigation has been completed, challan stands presented and no recovery is to be effected from the petitioner.

He is in custody since the date of his arrest i.e. 17.5.2022 and in all there are a total of 21 prosecution witnesses, all of whom are officials of the Department, as is reflected from the challan.

From the challan it is apparent that before the disbursal of the amount, the Range Officer had submitted the report after conducting physical verification marked on the system and recommended that refund may be sanctioned.

As this is a Magistrate Trial which is likely to take a considerable time therefore Regular Bail application is moved before High Court.

Department Opposed the Bail

Department opposed the Bail application on the ground that huge loss has been caused to the department, though, certain bank accounts have already been freezed and certain companies have voluntarily refunded the amount due towards them.

Department is still trying to figure out as to who all are involved in the case and proceedings against certain officials have also been initiated.  

Cases discussed in this case

Department placed their reliance of these cases:

• Central Bureau of Investigation vs. Ramendu Chattopadhyay - Supreme Court (2020)
• The State of Bihar and another vs. Amit Kumar @ Bacha Rai - Supreme Court (2017)
• Nimmagadda Prasad vs. Central Bureau of Investigation - Supreme Court (2013)
• Y.S. Jagan Mohan Reddy vs. Central Bureau of Investigation - Supreme Court (2013)

Whereas in his prayer for Bail Application Petitioner relied on these cases:

• P. Chidambaram vs. Directorate of Enforcement - Supreme Court (2020)
• Sanjay Chandra vs Central Bureau of Investigation - Supreme Court (2011)

Reasons to grant bails in above mentioned cases were

We are conscious of the fact that the accused are charged with economic offences of huge magnitude. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed. Therefore, their presence in the custody may not be necessary for further investigation. - Sanjay Chandra vs CBI

The basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. - P. Chidambaram vs ED

Issues with bails

While granting bails Courts usually do the triple test or the tripod test but in the case of Economic Offence Court also checks the “gravity of offence.”  The apex court has conceded that sometimes the gravity of the offence may be an additional consideration but underscored that it cannot be used to deny bail based on allegations yet to be tested in a trial.  In my view undue delays in conducting trials and appeals should reflect favourably on an accused when courts consider their bail applications. the courts have to balance a fair investigation, fair trail ensuring that the complainant or the witnesses be not threatened or influenced, documents not tampered with, law and order in the society not disturbed, presence of the accused during trail on one hand and personal liberty of the accused as a fundamental right of life and liberty as enshrined in Article 21 of the Constitution of India on the other hand.  

Triple Test or Tripod Test are

1. Presence of the accused
2. Nature of evidence involved
3. Deep Roots in the society

Conditional Regular Bail was Granted

The petitioner is ordered to be released on regular bail, subject to his furnishing bail/surety bonds amounting to Rs.10 lakhs to the satisfaction of trial Court/Duty Magistrate concerned and subject to him not being required in any other case.

Regular Bail to CA Gaurav Dhir was provided with these conditions

1. The petitioner will not tamper with the evidence during the trial.
2. The petitioner shall surrender his passport and will not leave the country without the permission of the Trial Court.
3. The petitioner will not change his residence without prior intimation to the Department and the trial Court.
4. The petitioner will not pressurise/intimidate the prosecution witnesses.
5. The petitioner will furnishing an undertaking by way of his affidavit before the trial Court that he will appear on each and every date fixed, unless his presence is exempted by a specific order of the Court.
6. The petitioner shall not commit an offence similar to the one involved in this, which he is accused of, or for commission of which he is suspected of.
7. The petitioner shall not directly or indirectly coerce, inducement, threaten or promise to any person acquainted with the facts of the case so as to dissuade him/ her from disclosing such facts to the Court or to any police officer or tamper with the evidence in any manner.
8. The petitioner shall not in any manner misuse his liberty.
9. Any infraction shall entail in withdrawal of the benefit granted by this Court.
10. The Trial Court is at liberty to impose any other condition that it may deem appropriate.

Conclusion

Prisons in the country are flooded largely because of the number of these undertrial prisoners. Bail is a part of the Right to Life and Personal Liberty under Article 21 of the Constitution of India, 1950. Jurisprudence is ‘bail is the rule and jail is the exception.’ The denial of bail is directly related to the possibility that a remand prisoner who has been released may not appear before the court to face trial. Considering the complexities involved in granting Bails the Union government should consider enacting a ‘Bail Act’ to streamline the grant of bail. Bails are also granted in many cases where accused had been long period of custody and early conclusion of trial is not likely. It is always difficult to get bail in cases of economic offence in comparison to other cases. Bail is a part of the Right to Liberty and arrests violate this right. Life and Personal Liberty are the most prized possessions of an Individual. The amount of time the accused has served in custody matters, they do not mention a specific timeframe. Section 436A of the CrPC is the only legislative backing for this idea that ‘time served’ matters for bail. The provision states that undertrials who have served up to half of the maximum sentence must be released.’ It seems evident that, at the very least, there is a requirement to streamline the hearing of bail applications. The question remains whether this reform will come through a separate enactment or through instructions by Honourable Supreme Court.

Disclaimer: This article is for information purposes and has personal views of the Author. Author is not responsible for any loss due to action or inaction on the basis of this article.