V.S. Dave, J. - (1.) This is an application under S. 276(C) read with S. 278-B and 277 read with S. 278-B of the Income Tax Act Learned Chief Judicial Magistrate (Economic Offences). Jaipur issued non-bailable warrants against the petitioners in first instance and, therefore, the petitioners apprehending their arrest moved an application for grant of anticipatory bail. Learned counsel for the petitioners submits that the learned Magistrate has not exercised his judicial discretion by issuing warrant of arrest in the first instance and this has been done by him without properly applying his mind to the facts of the case. It is further submitted that complaints are filed after several years of the original assessment when much water had flowed under the bridge and the status of the parties have also undergone a considerable change, including that one of the accused who has joined the Government service. It has been further submitted that accused is neither required for investigation nor by department, nor by the police, more so it a complaint case though, of course warrant procedure is provided. It is submitted that the learned Magistrate should issue process in a manner that it does not become punitive against the accused but it should serve purpose for which the process is issued. Mr. Khandewal has also drawn my attention towards the order of my brother Hon'ble M.B. Sharma J. in a case of Ram Ratan v. State of Rajasthan, decided on 2.5.1986 wherein though there was a concealment of a very huge amount as compared to the present case, this court converted non-bailable warrants in to bailable warrants. Mr, Wali appeared on behalf of the complainant Revenue Department and submitted that the purpose of issuance of the non-bailable warrants, is keeping in view the policies of the Government in Economic Offences, that terror in the mind of the people should also be created. He however, agreed that accused is not required by the Department or the police for any purpose. He has further submitted that it is after the proper adjudication by the Department that the complaints are filed and thus there is a strong prima facie case against the accused already established on the record. He relied on Income Tax Officer v. Gopal Dhamani, decided on 7.1.87 by Hon'ble G.M. Lodha J.
(2.) I have considered the rival contentions, perused the record of the case and the orders passed by Hon'ble Sharma J. and Hon'ble Lodha J. Hon'ble Sharma J. after considering the entire circumstances of the case directed that non-bailable warrants issued by the Chief Judicial Magistrate (Economic Offences) should be converted in to bailable warrants and Hon'ble Lodha J. while dealing with a case of cancellation of bail granted in a similar matter, held that even in bailable cases court has a right to refuse bail if there are reasons to believe that the accused would either not face the trial or otherwise tamper with the evidence. He however, refused to cancel the bail in that case,
(3.) Purpose of issuing the process at the stage of entertaining the complaint is to ensure the presence of the accused before the court and cannot be as to what effect it is going to have on the mind of the people at large. I am not prepared to accept the contention of Mr. Wali that non-bailable warrants should be issued in the first instance and the accused should be arrested so that it may create terror in the mind of the public. I am also unable to accept for a moment that this is one of the declared policies of either the Central Government or the State Government. Ours is a country based on rule of law and is governed by the Constitution where fundamental rights are guaranteed. The human liberty cannot be jeopardised for setting an example for others. It is one thing to arrest a man when suspected or a crime and to refuse bail to him on the principles governing the grant or refusal of the bail and it is absolutely different that he should only be arrested so that it may be creating terror in the mind of other business men. Their Lordships of the Supreme Court in a very recent decision while dealing the case of detenue under National Security Act, did not approve the delay caused in dealing with the representation of the petitioner moved to the Chief Minister of Maharashtra. The Chief Minister of Maharashtra, it was contended, was extremely busy in official work & was out of station and it was due to administrative exigencies that some delay was caused. Their Lordships disapproved and while releasing the detenu reiterated the law governing human liberty. I am, therefore, firmly of the opinion that creating terror at the cost of some boy else can neither be said to be the policy of the Governor can be considered as the one for the purpose of accepting or refusal of the bail. It is always for the Magistrate to consider in the facts and circumstance of each case as to what mode he should adopt for causing the accused to be brought before him.;