BAIL CONDITIONS UNDER GOODS AND SERVICES TAX

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Arrest and Bail

Section 69 of the Central Goods and Services Tax Act, 2017 (‘CGST Act’) lays down the provisions for arrest and bail. The provision states that the arrested person chargeable with cognizable and non-bailable offences shall be produced before a Magistrate before twenty-four (24) hours. However, the provision is silent regarding bail in the case of cognizable and non-bailable offences. In both the situation provisions of the Criminal Procedure Code, 1973 (‘CrPC’) must be read into for the purpose of arrest and bail and the procedures thereof.  

For CGST Act care must be taken to rely upon the provisions of the CrPC for granting/denying the bail application. If the person accused is arrested/detained he has to file Regular Bail Application under section(s) 436/437/439 of the CrPC r/w. Section 69 of the CGST Act. In case such person is having apprehension of arrest in non-bailable offences, then such person may apply for an Anticipatory Bail under section 438 of the CrPC. These Regular/Anticipatory Bail should be dealt with on the consideration of merits; however, bail is also granted upon the failure to file charge-sheet by the investigation authority within the statutorily stipulated time after detaining/arresting the accused person [See section 167(2) of the CrPC; For GST refer to section 167(2)(a)(ii) of the CrPC]  


This write-up is specifically dealing with the bail condition under GST vis-a-vis the provisions of CrPC.  


Condition for grant of bail in Bailable Offences (S. 436 of the CrPC) 

In regard to the bailable offence, Magistrate is not empowered to impose the condition. The accused has a right to be enlarged on bail. Further, the court has discretion in the matter regarding insistence on surety, it may release the accused by taking only a personal bond without insisting on surety for the appearance. The insistence of the personal bond and surety is essentially a matter of discretion and within the jurisdiction of the court. If the court insists on bond or bond and surety, then the compliance of section 441(1) of the CrPC must be fulfilled. For an indigent person, the court shall release him on the personal bond for his appearance without any surety.  

 
Condition for grant of bail in Non-Bailable Offences (S. 437/439 of the CrPC) 

Under section 437(3) the court has got the discretion to impose certain conditions, on the person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, when released on bail the court shall impose the condition. It is worth mentioning that the maximum punishment for non-bailable offence under CGST Act is imprisonment for a term which may extend to five years. Therefore, if the accused person is only charged under CGST Act then the condition cannot be imposed under section 473(3) of the CrPC. 

Supposing the accused person is charged under IPC and CGST, then the first thing is to be determined whether the alleged offences committed by the accused falls under the offences specified under section 437(3) of the CrPC. If the answer is affirmative then the court shall impose conditions as enumerated in the provisions therein. Further, the provisions of bond and surety shall also be looked into (S. 441 of the CrPC). 

The above applies to bail granted under section 439 of the CrPC. 

 
Condition for grant of bail in Anticipatory Bail Cases. 

If the charges are under CGST Act, then the High Court/Session Court has the power to impose conditions while granting anticipatory bail except the condition mentioned under section 438(2)(iv) of the CrPC. And if the charges are under IPC and CGST Act and the ingredients of section 437(3) gets satisfied, then the entire section 483(2) of the CrPC for imposing condition shall apply.  

 
Condition for Default Bail (S. 167(2) of the CrPC) 

It is clear from the provision of Section 167 that to a person released on bail under sub-section 2, the provisions of Chapter XXXII (Bail Chapter) are maid applicable as if he/she is released under the provisions of the said chapter. The provisions of sections 437 to 439 of the CrPC are thus applicable to the person for the purpose of the bail condition.  

 


The author may be reached at lawyer.akt@gmail.com and +91 9454380106.

 


Location: India

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