Facts of the Case

The petitioners, Krishna Bhama, the mother of the principal accused, and Roushan Soni @ Kriti Soni @ Kiriti Soni @ Roshan @ Roshni, the wife of the principal accused, approached the Gauhati High Court seeking anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC). The application arose from Basistha P.S. Case No. 180/2022, registered under Sections 120B, 420, 468, and 471 of the Indian Penal Code (IPC).

The FIR was lodged by the Assistant Commissioner of State Tax, Guwahati Unit-D, alleging that the principal accused had engaged in fake bill trading through non-existent entities, causing loss to the State exchequer and violating provisions of the Assam GST Act, 2017. The petitioners were implicated solely because of their relationship with the principal accused.

Issues Involved

  1. Whether the petitioners were entitled to anticipatory bail under Section 438 CrPC.
  2. Whether sufficient material existed to establish the involvement of the petitioners in the alleged fake GST invoice and tax fraud.
  3. Whether the police investigation could proceed independently without the GST authorities first undertaking the statutory investigation under the Assam GST Act, 2017.

Petitioners' Arguments

  • The petitioners contended that they had no role in the alleged fake invoice transactions or GST violations.
  • They argued that no material connected them with the alleged offences.
  • It was further submitted that under the Assam GST Act, 2017, the responsibility for conducting the primary investigation lies with the GST authorities, while the police are only required to provide assistance. Since no investigation had been undertaken by the GST authorities, the criminal proceedings against them lacked foundation.

Respondent's Arguments

  • The State opposed the anticipatory bail application based on the allegations contained in the FIR.
  • It relied upon the allegations of fake bill trading and loss to the State revenue arising from the activities of the principal accused and sought continuation of the investigation.

Court Order / Findings

The Gauhati High Court observed that the case diary did not disclose sufficient material to indicate that either of the petitioners had violated the provisions of the Assam GST Act, 2017.

The Court further held that the statutory scheme of the Assam GST Act contemplates that the GST authorities are required to undertake the investigation, while the police are expected to provide assistance. In the present case, no investigation had been initiated by the GST authorities before the police action.

Considering the absence of incriminating material against the petitioners and the statutory framework governing GST investigations, the Court allowed the anticipatory bail application and made the interim bail granted to the petitioners absolute.

Important Clarification

  • Mere relationship with the principal accused does not justify criminal liability without supporting evidence.
  • Anticipatory bail may be granted where the case diary does not disclose any material connecting the accused with the alleged offence.
  • Under the Assam GST Act, 2017, GST authorities are expected to conduct the primary investigation, while police assistance is ancillary in nature.
  • Criminal proceedings should be supported by substantive evidence establishing the involvement of each accused individually.

Sections Involved

  • Section 438 of the Code of Criminal Procedure, 1973 – Anticipatory Bail
  • Section 120B of the Indian Penal Code – Criminal Conspiracy
  • Section 420 of the Indian Penal Code – Cheating
  • Section 468 of the Indian Penal Code – Forgery for the Purpose of Cheating
  • Section 471 of the Indian Penal Code – Using Forged Document as Genuine
  • Relevant provisions of the Assam GST Act, 2017

Link to Download the Order

https://mytaxexpert.co.in/uploads/1785321767_2229compressed.pdf

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