Gaurav Dhir vs CGST

Punjab and Haryana High Court grants Regular Bail (U/s 439 of Cr. P.C.) to CA. Gaurav Dhir in Gurgaon Refund 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.

The present petition has been filed under Section 439 Cr.P.C. for grant of regular bail to the petitioner in a case registered under Section 132(1)(i) read with Section 132(1)(b)(c)(e)(f) of the Central Goods and Services Tax Act, 2017. Learned Senior counsel submits that 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 Sunil Mahalawat were colleagues, as such the UDIN was borrowed by the petitioner from him for uploading and issuance of the CA certificate. He, however, further submits that otherwise as per Rule 89(m) of CGST Rules, CA certificate is not required for the aforesaid purpose. He further submits that pursuant to the notice by which, the petitioner was summoned, he appeared to join the investigation on 17.5.2022 but was arrested there and then. 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.

He further submits that 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. He further refers to the statement of co accused-Lalit Dogra, who in response to question No.6 had stated that he had engaged the petitioner to render professional service against payment of fee. It is stated that the maximum sentence for the alleged offence is 5 years and it is a Magisterial trial, which is likely to take a considerable time. It is his further submission that there is no allegation against him that he in any way was the beneficiary of the excess Input Tax Credit, allegedly received by the companies. He is also not involved in any other case.

“21. Thus from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that 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. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of “grave offence” and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused.

One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial.”

Although there is no quarrel with respect to the legal propositions canvassed by the learned counsels, it should be noted that there is no straight jacket formula for consideration of grant of bail to an accused. It all depends upon the facts and circumstances of each case.

The Government’s interest in preventing crime by arrestees is both legitimate and compelling. So also is the cherished right of personal liberty envisaged under Article 21 of the Constitution. Section 439 of The Code of Criminal Procedure, 1973, which is the bail provision, places responsibility upon the courts to uphold procedural fairness before a person’s liberty is abridged.

Although ‘bail is the rule and jail is an exception’ is well established in our jurisprudence, we have to measure competing forces present in facts and circumstances of each case before enlarging a person on bail.

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