# Amit Kumar Kataria (In Jail) v. State of U.P. & Anr

- **Citation:** (2021) 3 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-22
- **Case number:** Criminal Misc. Bail Application No. 4718 of 2021
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-kumar-kataria-in-jail-v-state-of-u-p-anr-46861
- **Pages:** 10

## Headnote

A. Civil Law - Central Goods and Services
Tax Act, 2017-Section 69,70, 132(1)(c)
and 132(1)(i)-application- modification of
bail order condition-applicant directed to
deposit remaining amount of ITC Rs. 4
Crore 51 lac-unsustainable, because it is
too harsh and unreasonable where the
investigation is still pending and applicant
has already deposited Rs. 5 Crore out of
disputed amount of Rs. 9 crore 51 lacunder the Act, there is no staturtory
provision for compelling the applicant to
deposit
the
entire
amount
without
completing
the
inquiry
or
without
initiating any recovery proceedings u/s 73
or 74 of the C.G.S.T. Act-object of
imposing bail conditions is to secure
attendance of the accused and to protect
the interest of revenue not ruin the
business of accused-applicant to submit
security equivalent to remaining disputed
amount
other
than
cash
and
bank
gurantee along with affidavit before the
Senior Intelligence Officer.(Para 1 to 25)

The Bail Application is disposed of. (E-5)

List of Cases cited: -

## Text

3 All. Amit Kumar Kataria Vs. State of U.P. & Anr.
1
(2021)03ILR A1
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.02.2021

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Misc. Bail Application No. 4718 of 2021

Amit Kumar Kataria ...Applicant(In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri
Anurag
Khanna(Senior
Adv.),
Sri
Raghav Dev Garg

Counsel for the Respondents:
A.G.A., Sri Dileep Chandra Mathur

A. Civil Law - Central Goods and Services
Tax Act, 2017-Section 69,70, 132(1)(c)
and 132(1)(i)-application- modification of
bail order condition-applicant directed to
deposit remaining amount of ITC Rs. 4
Crore 51 lac-unsustainable, because it is
too harsh and unreasonable where the
investigation is still pending and applicant
has already deposited Rs. 5 Crore out of
disputed amount of Rs. 9 crore 51 lacunder the Act, there is no staturtory
provision for compelling the applicant to
deposit
the
entire
amount
without
completing
the
inquiry
or
without
initiating any recovery proceedings u/s 73
or 74 of the C.G.S.T. Act-object of
imposing bail conditions is to secure
attendance of the accused and to protect
the interest of revenue not ruin the
business of accused-applicant to submit
security equivalent to remaining disputed
amount
other
than
cash
and
bank
gurantee along with affidavit before the
Senior Intelligence Officer.(Para 1 to 25)

The Bail Application is disposed of. (E-5)

List of Cases cited: -

1. Sandeep Jain Vs NCT of Delhi, (2000) 2 SCC
66

2. Amarjit Singh Vs St. of NCT of Delhi, JT
(2002) SC 291

3. Sheikh Ayub Vs St. of M.P., (2004) 13 SCC
457

4. Ramathal & ors. Vs Insptr. Of Police & anr.,
(2009) Cr.L.J. 2271

5. Munish Bhasin & ors. Vs St. of NCT of Delhi &
anr., (2009) 4 SCC 45

6. Sumit Mehta Vs St.of NCT of Delhi,(2013) 15
SCC 570

7. Dilip Singh Vs St. of M.P. & anr., CRLA No. 53
of 2021

8. Suresh Kumar P.P. & anr. Vs The Deputy
Director,
Directorate
General
of
GST
Intelligence (DGGI) & ors.(SLP(C) No. 13128
of 2020

9. Vikalp Jain Vs U.O.I. & ors.,(Matter U/A 227
No. 5789 of 2019

(Delivered by Hon'ble Sanjay Kumar Singh, J.)

1. Second supplementary affidavit
dated 22.02.2021 filed on behalf of the
applicant
and
supplementary
counter
affidavit dated 22.02.2021 filed on behalf
of opposite party No. 2, are taken on
record.

2. Heard Mr. Anurag Khanna, learned
Senior Advocate assisted by Mr. Raghav
Dev
Garg,
learned
counsel
for
the
applicant, Mr. Rabindra Singh, learned
Additional Government Advocate for the
State/opposite party No.1 and Mr. D.C.
Mathur, learned counsel appearing on
behalf of opposite party No.2, Directorate
General of G.S.T. Intelligence, Kaushambi,
Ghaziabad.
2 INDIAN LAW REPORTS ALLAHABAD SERIES

3. This application under section 439
(1)(b) of Code of Criminal Procedure has
been filed by the applicant to set aside the
condition No. 4 of the bail order dated
24.11.2020 passed by the Special Chief
Judicial
Magistrate,
Meerut,
whereby
following conditions have been imposed
upon the applicant while granting bail to
him:

"1- vfHk;qDr }kjk vadu chl&chl yk[k
#i;s dh nks tekur o lkeku /kujkf'k dk futh ca/k
i= nkf[ky djus ij tekur ij fjgk fd;k tk;sA nks
tekufr;ksa esa ls ,d tekurh vfHk;qDr ds ifjokj dk
utnhdh lnL; gksA

2- vfHk;qDr dks vknsf'kr fd;k tkrk gS
fd ;fn og ikliksVZ /kkjd gks rks og viuk ikliksVZ
vfoyEc U;k;;y; esa tek djk;sA

3- tekur ij NwVus ds i'pkr vfHk;qDr
foHkkxh; tkap esa lg;ksx djsxkA

4- vfHk;qDr dks ;g Hkh vknsf'kr fd;k
tkrk gS fd og vkbZ0 Vh0 lh0 dh 'ks"k /kujkf'k 3
ekg esa foHkkx esa tek djkdj U;k;ky; dks voxr
djkuk lqfuf'pr djsxkA vfHk;qDr bl vk'k; dh
vUMj Vsfdax nkf[ky djsxkA"

4. The brief facts of the case, which
are relevant for the purpose of deciding this
case, as submitted by the learned counsel
for the applicant, are that the applicant is
the sole proprietor of firm registered in the
name and style of M/s LAN Engineering
and Technologies. The firm is involved in
the business of manufacturing and supply
of meter boxes and distribution boxes to
Government utilities. The applicant is also
taking care of another firm namely, M/s
Neelu Packing Industries, of which Mr.
Balbir Singh, who is the father of the
applicant, is the sole proprietor. On
06.08.2020, a joint team of officers of
Department of C.G.S.T. Commissionerate,
NOIDA and C.G.S.T. Commissionerate,
Meerut, visited the premises of M/s LAN
Engineering and Technologies and M/s
Neelu Packing Industries. Thereafter, on
11.11.2020 summons under section 70 of
Central Goods and Services Tax Act, 2017
(herein-after referred to as "C.G.S.T Act")
was served upon the applicant requiring his
presence on 11.11.2020 at 14:00 hours
before Senior Intelligence Officer, DGGI,
Ghaziabad. The applicant appeared before
the Authorities concerned on behalf of both
the aforesaid firms and his statement under
section 70 of C.G.S.T. Act was recorded on
11.11.2020. Main allegation against the
applicant is that the four firms, namely, M/s
Jain Polymer, M/s Keval Polymer, M/s
Balaji Trading Company and M/s Sai Nath
Plastics, which are supplier's firms of
plastic scrap for both the aforesaid firms of
the applicant, are not found in existence as
per information of the Department. M/s
LAN Engineering and Technologies and
M/s
Neelu
Packing
Industries
have
fraudulently
availed
input
tax
credit
approximately, a sum of Rs. 9,51,00,000/-
(Rupees nine crores fifty one lac only), out
of which rupees six crore sixty lac for M/s
Neelu Packing Industries and rupees two
crore ninety one lac for M/s LAN
Engineering
and
Technologies.
After
recording the statement of the applicant
under section 70 of C.G.S.T. Act, he was
arrested on 12.11.2020 in accordance with
the provisions of section 69 of C.G.S.T.
Act, as the response of the applicant was
not found satisfactory, and he was sent in
judicial custody for the offence under
section 132 (1)(c) and 132(1)((i) of the
C.G.S.T. Act, 2017, and thereafter he was
granted bail vide order dated 24.11.2020
passed
by
Special
Chief
Judicial
Magistrate, Meerut, subject to abovementioned conditions.

5. Main substratum of argument of
Mr. Anurag
Khanna,
learned
Senior
Advocate appearing on behalf of the
applicant is that out of disputed amount of
3 All. Amit Kumar Kataria Vs. State of U.P. & Anr.
3
Rs. 9,51,00,000/- (Rupees nine crore fifty
one lac only), the applicant has already
deposited a sum of Rs. 5,00,00,000/-
(rupees five crore only) under duress and
coercion on 21.11.2020 on account of
putting extreme pressure upon the applicant
by the Department. It is vehemently urged
by the learned counsel for the applicant that
till date neither any criminal complaint has
been filed nor any proceedings under
section 73 or 74 of the C.G.S.T. Act, has
been initiated against the applicant by the
Department and enquiry proceedings is still
under process. It is also submitted by the
learned counsel for the applicant that since
the determination of input tax credit
wrongly availed has not been finally made
by the Department and no order under
section 83 of C.G.S.T. Act, 2017 for
provisional attachment of any property
including bank account belonging to the
applicant has been made, therefore, the
applicant cannot be directed and forced to
deposit the remaining disputed amount of
Rs. 4,51,00,000/- (rupees four crore fifty
one lac only). It is next submitted by the
learned counsel for the applicant that under
the C.G.S.T. Act, there is no statutory
provision for compelling the applicant to
deposit
the
entire
amount
without
completing the investigation/enquiry or
without launching prosecution by filing
complaint
or
without
initiating
any
recovery proceedings under section 73 or
74 of C.G.S.T. Act. Much emphasis has
been given that under Chapter XV, there is
a complete procedure for demand and
recovery, therefore, without following the
same, the applicant cannot be compelled to
deposit the entire disputed amount. It is
submitted that any act done by the
Department otherwise in due course of law
as provided under C.G.S.T. Act, can be
termed as illegal action. It is also pointed
out by the learned counsel for the applicant
that vide two letters dated 23.11.2020
addressed to Senior Intelligence Office,
Group D, DGGI, Ghaziabad, Regional
Unit, undertakings were given by the
applicant with regard to disputed amount
against the aforesaid firms of the applicant,
by submitting that he has voluntarily
deposited a sum of Rs. 1,50,00,000/-
(Rupees one crore fifty lac only) on
21.11.2020 with regard to liability against
M/s LAN Engineering and Technologies,
NOIDA and Rs. 3,50,00,000/- (rupees three
crore fifty lac only) on 21.11.2020 with
regard to liability against M/s Neelu
Packing Industries, against reversal of
disputed ITC of IGST availed by him
during the period April, 2018 to March,
2019 on the strength of supply made by
M/s Jain Polymer, M/s Keval Polymer, M/s
Balaji Trading Company and M/s Sai Nath
Plastics, and assured that rest of the
disputed ITC of IGST will be deposited
within six months and he will fully
cooperate with the investigation, copies of
undertaking along with copies of Chalan
have been brought on record as annexure-8
to the bail application. It is also pointed out
by the learned counsel for the applicant that
the applicant, after granting bail on
24.11.2020, has also given an undertaking
on the same day, i.e. 24.11.2020 in terms of
conditions imposed upon him in the bail
order dated 24.11.2020.

6. Here, it is also relevant to mention
the contents of paragraph 2 of the second
supplementary affidavit filed today on
behalf
of
the
applicant,
which
are
reproduced here-in below:

"That the applicant submits that if
the Hon'ble Court is pleased to modify the
condition No 4 in the order dated
24.11.2020 passed by the Chief Judicial
Magistrate to the extent that instead of
4 INDIAN LAW REPORTS ALLAHABAD SERIES
depositing Rs. 4.5 crores (remaining
amount of disputed ITC availed) in cash,
the applicant be directed to deposit any
security,
other
than
cash
or
bank
guarantee, the applicant undertakes that he
shall adhere to the same and shall submit
as security, the property papers of the land
being lease hold property No. "100" with
an area admeasuring 496 Sq. Mtr., situated
at Block "C", Sector 50, NOIDA, Gautam
Buddh Nagar. The property is in the name
of the applicant's father and as per the
latest available valuation, the same is
worth approximately Rs. 5,60,20,000/-,
which is more than Rs. 4.5 Crores. The
applicant
further
submits
that
the
aforementioned land is free from all
encumbrances."

7. On the strength of aforesaid facts, it
is submitted by the learned counsel for the
applicant that condition No. 4 of the bail
order dated 24.11.2020 is onerous and
unreasonable under the facts of this case.
Object of imposing conditions is to secure
the attendance of the accused and to protect
the interest of revenue, instead ruins the
business of accused, therefore he can be
directed to give security other than cash or
bank guarantee as per his undertaking, as
mentioned in paragraph 2 of the second
supplementary affidavit dated 22.02.2021.

8. In support of aforesaid contentions,
learned counsel for the applicant has placed
reliance upon the following judgments of
the Supreme Court:

1. Sandeep Jain v. National
Capital Territory of Delhi, 2000 (2) SCC
66,

2. Amarjit Singh v. State of
NCT of Delhi, JT 2002 (1) SC 291,

3. Sheikh Ayub vs State of M.P.,
2004 (13) SCC 457

4.
Ramathal
&
others
vs
Inspector of Police & Another, 2009
Cr.L.J. 2271,

5. Munish Bhasin & Others vs
State (Govt. of N.C.T. of Delhi) &
Another, 2009 (4) SCC 45,

6. Sumit Mehta vs State (N.C.T.
of Delhi), 2013 (15) SCC 570,

7. Dilip Singh vs State of M.P.
and another, Criminal Appeal No. 53 of
2021 decided on 19.01.2021.

9. In the case of Sandeep Jain
(supra) the Apex Court held that:

"We are unable to appreciate
even the first order passed by the
Metropolitan Magistrate imposing the
onerous condition that an accused at the
FIR stage should pay a huge sum of Rs. 2
lakhs to be set at liberty. If he had paid it is
a different matter. But the fact that he was
not able to pay that amount and in default
thereof he is to languish in jail for more
than 10 months now, is sufficient indication
that he was unable to make up the amount.
Can he be detained in custody endlessly for
his inability to pay the amount in the range
of Rs. 2 lakhs. If the cheques issued by his
surety were dishonoured, the Court could
perhaps have taken it as a ground to
suggest to the payee of the cheques to
resort to his legal remedies provided by
law. Similarly if the court was dissatisfied
with the conduct of the surety as for his
failure to raise funds for honouring the
cheques issued by him, the court could
have directed the appellant to substitute
him with another surety. But to keep him in
prison for such a long period, that too in a
case where bail would normally be granted
for the offences alleged, is not only hard
but improper. It must be remembered that
the Court has not even come to the
conclusion that the allegations made in the
3 All. Amit Kumar Kataria Vs. State of U.P. & Anr.
5
FIR are true. That can be decided only
when the trial concludes, if the case is
charge-sheeted by the police".

10. The Apex Court in Amarjit Singh
(supra), held as under:-

"4. Having regard to the facts and
circumstances of the present case, we have
no hesitation in coming to the conclusion
that the imposition of condition to deposit
the sum of Rs. 15 lacks in the form of FDR
in the Trial Court is an unreasonable
condition and, therefore, we set aside the
said condition as a condition precedent for
granting
anticipatory
bail
to
the
accused/appellant......."

11. In the case of Sheikh Ayub
(supra), facts of the case before the Apex
Court were that by the impugned order the
appellant was granted bail and directed to
deposit Rs.2,50,000/- which is alleged to be
the
amount
misappropriated
by
the
appellant. There was also condition for
furnishing surety bond for Rs. 50,000/-. In
the circumstances of the case, Apex Court
held that direction to deposit Rs. 2,50,000
was not warranted, as part of the conditions
for granting bail and observed that the
direction to deposit Rs. 2,50,000/- is
deleted and subject to this modification the
order passed by the learned Single Judge
granting bail is confirmed.

12. In Ramathal & Ors (supra), the
Apex Court has again considered the issue
of imposing onerous conditions while
granting Anticipatory bail to accused.
Relevant observations made by the Apex
Court in the said case are as follows:

"7. On perusal of the submissions
made and material on record, the High
Court
passed
an
order
granting
anticipatory bail as prayed for on condition
that in the event of arrest, the appellants
shall be enlarged on bail on their
depositing Rs. 32,00,000/- to the credit of
Crime No. 56 of 2008 before the Judicial
Magistrate No. 1, Coimbatore and also on
their executing a personal bond of Rs.
1,00,000/- with two sureties each for the
like sum to his satisfaction.

8. Aggrieved by the aforesaid
order, the appellants approached this Court
on the ground that the conditions imposed
by
the
High
Court
while
granting
anticipatory bail are not only unreasonable
and onerous but the same also amounts to
putting a fetter on the right of appellants
being admitted to bail, in terms of the order
passed.

15. It appears that in the
aforesaid facts and circumstances, the High
Court passed the impugned order with the
intention of protecting the interest of the
complainant
in
the
matter.
In
our
considered opinion, the approach of the
High Court was incorrect as under the
impugned order a very unreasonable and
onerous condition has been laid down by
the Court as a condition precedent for
grant of anticipatory bail."

13. In the case of Munish Bhasin
(supra), the Apex Court has held that:

"10. It is well settled that while
exercising discretion to release an accused
under Section 438 of the Code neither the
High Court nor the Sessions Court would
be justified in imposing freakish conditions.
There is no manner of doubt that the court
having
regard
to
the
facts
and
circumstances of the case can impose
necessary, just and efficacious conditions
while enlarging an accused on bail under
Section 438 of the Code. However, the
accused cannot be subjected to any
irrelevant condition at all.
6 INDIAN LAW REPORTS ALLAHABAD SERIES

11. The conditions which can be
imposed by the court while granting
anticipatory bail are enumerated in subsection (2) of Section 438 and sub-section
(3) of Section 437 of the Code. Normally,
conditions can be imposed (i) to secure the
presence of the accused before the
investigating officer or before the Court,
(ii) to prevent him from fleeing the course
of justice, (iii) to prevent him from
tampering with the evidence or to prevent
him from inducing or intimidating the
witnesses so as to dissuade them from
disclosing the facts before the police or
court, or (iv) restricting the movements of
the accused in a particular area or locality
or to maintain law and order etc. To subject
an accused to any other condition would be
beyond jurisdiction of the power conferred
on court under Section 438 of the Code.

12. While imposing conditions on
an accused who approaches the court
under Section 438 of the Code, the court
should be extremely chary in imposing
conditions and should not transgress its
jurisdiction or power by imposing the
conditions which are not called for at all.
There is no manner of doubt that the
conditions to be imposed under Section 438
of the Code cannot be harsh, onerous or
excessive so as to frustrate the very object
of grant of anticipatory bail under Section
438 of the Code.

13. In the instant case, the
question before the Court was whether
having regard to the averments made by
Ms. Renuka in her complaint, the appellant
and his parents were entitled to bail under
Section 438 of the Code. When the High
Court had found that a case for grant of
bail under Section 438 was made out, it
was not open to the Court to direct the
appellant to pay Rs. 3,00,000/- for past
maintenance and a sum of Rs.12,500 per
month as future maintenance to his wife
and child. In a proceeding under Section
438 of the Code, the Court would not be
justified in awarding maintenance to the
wife and child."

14. In the case of Sumit Mehta
(supra), the only point for consideration
was whether the condition of depositing an
amount of Rs. 1,00,00,000/- in fixed
deposit for anticipatory bail is sustainable
in law and whether such condition is
outside the purview of Section 438 of the
Code?

The observations made by the
Apex Court while deciding the aforesaid
issue are as under:

11. While exercising power under
Section 438 of the Code, the court is dutybound to strike a balance between the
individual's right to personal freedom and
the right of investigation of the police. For
the same, while granting relief under
Section 438(1), appropriate conditions can
be imposed under Section 438(2) so as to
ensure an uninterrupted investigation. The
object of putting such conditions should be
to avoid the possibility of the person
hampering the investigation. Thus, any
condition, which has no reference to the
fairness or propriety of the investigation or
trial,
cannot
be
countenanced
as
permissible
under
the
law.
So,
the
discretion of the court while imposing
conditions must be exercised with utmost
restraint.

12. The law presumes an accused
to be innocent till his guilt is proved. As a
presumably innocent person, he is entitled
to all the fundamental rights including the
right to liberty guaranteed under Article 21
of the Constitution.

13. We also clarify that while
granting anticipatory bail, the courts are
expected to consider and keep in mind the
3 All. Amit Kumar Kataria Vs. State of U.P. & Anr.
7
nature
and
gravity
of
accusation,
antecedents of the applicant, namely, about
his previous involvement in such offence
and the possibility of the applicant to flee
from justice. It is also the duty of the court
to ascertain whether accusation has been
made with the object of injuring or
humiliating him by having him so arrested.
It is needless to mention that the courts are
duty-bound
to
impose
appropriate
conditions as provided under sub-section
(2) of Section 438 of the Code.

14. Thus, in the case on hand,
fixed deposit of Rs. 1,00,00,000 for a
period of six months in the name of the
complainant and to keep the FDR with the
investigating
officer
as
a
condition
precedent for grant of anticipatory bail is
evidently onerous and unreasonable. It
must be remembered that the Court has not
even come to the conclusion whether the
allegations made are true or not which can
only be ascertained after completion of
trial. Certainly, in no words are we
suggesting that the power to impose a
condition of this nature is totally excluded,
even in cases of cheating, electricity
pilferage, white-collar crimes or chit fund
scams etc.

15. The words "any condition"
used in the provision should not be
regarded as conferring absolute power on a
court of law to impose any condition that it
chooses to impose. Any condition has to be
interpreted as a reasonable condition
acceptable in the facts permissible in the
circumstance and effective in the pragmatic
sense and should not defeat the order of
grant of bail. We are of the view that the
present facts and circumstances of the case
do not warrant such extreme condition to
be imposed.

15. Quite recent the Apex Court on
January 19, 2020 has again considered the
issue of imposing onerous conditions while
granting Anticipatory bail to accused in
case of Dilip Singh v. State of Madhya
Pradesh and Another in Criminal Appeal
No.53 of 2021. Facts , observations and
findings of the Apex Court are as follow :

"2. This appeal is against an
order dated 11 September 2019 passed by
the High Court granting anticipatory bail
to the appellant, subject to the condition of
deposit of Rs 41 lakhs in court and upon his
furnishing personal bond in the sum of Rs
50,000 with one solvent surety in the like
amount to the satisfaction of the arresting
officer. It was directed that the order would
be governed by condition Nos 1 to 3 of subSection 2 of Section 438 of the Code of
Criminal Procedure. The trial court was
directed to deposit the amount so deposited
by the appellant with any nationalized
bank.

3. Ex facie, the disputes in the
instant case are civil in nature. It is the
contention of the complainant that despite
having paid Rs 41 lakhs to the appellant
pursuant to an agreement for purchase of
agricultural land, the appellant has not
executed the deed of sale in respect of the
same. It appears that the complainant has
also
filed
a
civil
suit
for
specific
performance of the said agreement, which
is pending adjudication.

4. By imposing the condition of
deposit of Rs. 41 lakhs, the High Court has,
in an application for pre-arrest bail under
Section 438 of the Criminal Procedure
Code, virtually issued directions in the
nature of recovery in a civil suit.

5. It is well settled by a plethora
of decisions of this Court that criminal
proceedings are not for realization of
disputed dues. It is open to a Court to grant
or refuse the prayer for anticipatory bail,
depending on the facts and circumstances
8 INDIAN LAW REPORTS ALLAHABAD SERIES
of the particular case. The factors to be
taken into consideration, while considering
an application for bail are the nature of
accusation
and
the
severity
of
the
punishment in the case of conviction and
the nature of the materials relied upon by
the prosecution; reasonable apprehension
of tampering with the witnesses or
apprehension of threat to the complainant
or the witnesses; reasonable possibility of
securing the presence of the accused at the
time of trial or the likelihood of his
abscondence; character behaviour and
standing
of
the
accused;
and
the
circumstances which are peculiar or the
accused and larger interest of the public or
the State and similar other considerations.
A criminal court, exercising jurisdiction to
grant bail/anticipatory bail, is not expected
to act as a recovery agent to realise the
dues of the complainant, and that too,
without any trial.

6. We accordingly modify the
order impugned before us by deleting the
direction to deposit Rs. 41 lakhs as directed
by the High Court. Needless to mention, the
grant of anticipatory bail shall be governed
by the conditions in Section 438(2) of the
Code of Criminal Procedure. "

16. Per contra, Mr. Rabindra Singh,
learned Additional Government Advocate
for the State of U.P./opposite party No.1 and
Mr. D.C. Mathur, learned counsel appearing
for opposite party No. 2 submit that since,
the applicant has already given undertaking
on 23.11.2020 before the Senior Intelligence
Office,
Group-D,
DGGI,
Ghaziabad,
Regional Unit, therefore, he cannot deviate
from his undertaking and as such, condition
No. 4 as imposed in the bail order dated
24.11.2020 passed by Special Chief Judicial
Magistrate, Meerut, is not liable to be
interfered with, but they do not dispute the
aforesaid factual aspect of the matter as
argued by learned counsel for the applicant.
In paragraph 21 of the counter affidavit of
opposite party No. 2, it is stated that
proceedings for demand and recovery of
disputed ITC availed by M/s NPI and M/s
LE & T under section 73 and 74 of the
C.G.S.T. Act, 2017 is the action after
completion of the investigation, which is
under progress. It is also submitted that
applicant voluntarily deposited tax amount
of Rs. 5,00,00,000/- (rupees five crore only)
under section 74(5) of the C.G.S.T. Act.

17. Mr. D.C. Mathur, learned counsel
for opposite party No. 2 has placed reliance
upon the following judgments:

1. Suresh Kumar P.P. & another
vs
The Deputy Director, Directorate
General of GST Intelligence (DGGI) &
others (Petition for Special Leave to Appeal
(C) No. 13128 of 2020 decided on
07.01.2021.

2. Vikalp Jain vs Union of India
and others, (Matter under Article 227 No.
5789 of 2019) decided on 02.08.2019.

18. In the case of Suresh Kumar
(supra), the petitioner prayed for setting
aside the impugned notice, invalidation of
search and seizure proceedings, refund or
amount collected under duress and also
challenged the simultaneous proceedings
of investigation under section 67 of the
C.G.S.T. Act having been commenced
when already an audit under section 65 of
C.G.S.T. Act is in progress and the issue
in the said case was also regarding grant
of
opportunity
of
hearing
before
attachment of the bank account under
section 83 of the C.G.S.T. Act, therefore
the aforesaid case relied upon by learned
counsel for opposite party No. 2 is
distinguishable
on
facts
and
not
applicable in the facts of present case.
3 All. Amit Kumar Kataria Vs. State of U.P. & Anr.
9

19. In the case of Vikalp Jain (supra),
the fact of the case was that the applicant
was actively involved in evasion of G.S.T.
to the tune of more than Rs. 94,00,00,00/-
(rupees ninety four crore only) in violation
of provisions of C.G.S.T. Act, 2017 and the
applicant was released on bail subject to
condition to deposit Rs. 1,00,00,000/-
(rupees one crore only) within three months
from the date of release on bail vide order
dated 19.07.2019. In the said case, prayer
was made to waive or reduce one of the
conditions
of
bail
to
deposit
Rs.
1,00,00,000/- (rupees one crore only). The
said writ petition was dismissed. Here, it is
relevant to mention that in the said case,
against the alleged evasion of tax of Rs.
94,00,00,000/- (rupees ninety four crore
only), the petitioner had not deposited any
amount, whereas in the present case against
the evasion of tax of Rs. 9,51,00,000/-
(rupees nine crore fifty one lac only), the
applicant has already deposited more than
50% of the disputed amount, therefore, on
facts the said case is also not helpful to
opposite party No. 2.

20. It is well settled that every case
turns on its own facts. Even one additional
or different fact may make big difference
between the conclusion in two cases,
because even a single significant detail may
alter entire aspect.

21. Here it is relevant to quote Subsection (3) of Section 437 Cr.P.C., which
inter alia, provides that:

"when a 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 Penal Code (45 of
1860) or abetment of, or conspiracy or
attempt to commit, any such offence, is
released on bail under sub-section (1), the
court shall impose the conditions-

"(a) that such person shall attend
in accordance with the conditions of the
bond executed under this Chapter,

(b) that such person shall not
commit an offence similar to the offence of
which he is accused, or suspected, of the
commission of which he is suspected, and

(c) that such person shall not
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the court
or to any police officer or tamper with the
evidence."

and may also impose, in the
interests of justice, such other conditions as
it considers necessary."

22. In view of aforesaid discussion,
this Court is of the view that conditions for
grant of bail ought not to be so strict as to
be incapable of compliance, thereby
making a grant of bail illusory. The
conditions while granting bail should be
reasonable, so that it may not frustrate the
very object of granting bail. Discretion
exercised by the Court while imposing
conditions should not be arbitrary, but it
should be keeping in mind to strike balance
between the accused and prosecution. In
the present case, it is admitted facts to the
counsel for the parties that as on date out of
disputed amount of Rs. 9,51,00,000/-
(rupees nine crore fifty one lac only), the
applicant has already deposited a sum of
Rs. 5,00,00,000/- (rupees five crore only).
Till date neither any criminal complaint has
been filed, nor any proceedings under
section 73 or 74 of the C.G.S.T. Act has
been initiated against the applicant by the
Department. The enquiry proceedings is
still under process. The determination of
10 INDIAN LAW REPORTS ALLAHABAD SERIES
input tax credit wrongly availed has not
been finally made by the Department and
no order under section 83 of the C.G.S.T.
Act for provisional attachment of any
property including the bank account
belonging to the applicant has been made.
The order granting bail to the applicant has
also
not
been
challenged
by
the
Department.

23.

Considering
the
facts
and
circumstances of the case as well as
averments as mentioned in paragraph 2 of the
second
supplementary
affidavit
dated
22.02.2021, this Court is of the view that
condition No. 4 imposed by Special Chief
Judicial Magistrate, Meerut directing the
applicant to deposit remaining amount of ITC
Rs. 4,51,00,000/- (rupees four crore fifty one
lac only) before the Department within three
months while granting bail to the applicant, is
unsustainable, as it is too harsh and
unreasonable, particularly in the situation
where enquiry/investigation is still pending
and applicant has already deposited Rs.
5,00,00,000/- (rupees five crore only), out of
disputed amount of Rs. 9,51,00,000/- (rupees
nine crore fifty one lac only). In view of
above, in order to save the Government
revenue, the interest of justice would be
served in case, the condition No. 4 of bail
order dated 24.11.2020 is modified directing
the applicant to submit security equivalent to
remaining
disputed
amount
of
Rs.
4,51,00,000/- (rupees four crore fifty one lac
only), other than cash and bank guarantee
along with his affidavit in place of deposit the
remaining amount of ITC of IGST, before the
Senior Intelligence Officer, DGGI, Regional
Unit, Ghaziabad within three weeks from
today, as per the undertaking given by the
applicant before this Court.

24. In view of aforesaid facts and for
the reasons stated above, the condition No.
4 of the bail order dated 24.11.2020 is
modified to the extent as mentioned above.
On non-furnishing security by the applicant
as per his undertaking before this Court, it
is open for opposite party No. 2 to move
bail cancellation application.

25. Accordingly, the bail application
under section 439 (1)(b) of the Code of
Criminal Procedure, is disposed of in the
aforesaid terms.
----------
(2021)03ILR A10
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2021

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Misc. Bail Application No. 5704 of 2021

Ram Awatar & Anr. ...Applicants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicants:
Sri Kameshwar Singh

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Indian Penal Code,
1860-Sections 304-B, 498-A & Dowry
Prohibition
Act,
1961-Section
3⁄4application-grant of bail-the entire family
has been roped in, unmindful of the fact of
interse
relationship
by
attributing
a
general and omnibus role to everybody-
she has hanged herself as per medical
report-no
evidence
collected
during
investigation that husband abetted her or
conspired or intentionally aided herHowever, she used to tell the atrocities
and
mal
treatment
to
her
parentsaffidavits of informant, his wife and his
son within 16 days of her untimely death
by somersaulting and diluting the entire