I.S.Israni, J. - (1.) THIS is an application under Section 438, Criminal Procedure Code, for grant of anticipatory bail in Criminal Case No. 340 of 1986, pending trial in the Court of the Chief Judicial Magistrate (Economic Offences), Jaipur City, Jaipur, under Section 276C of the Income-tax Act, 1961 (hereinafter referred to as "the Act").
(2.) A complaint under Sections 276C, 276CC and 277 of the Act was filed in the Court of the Chief Judicial Magistrate (Economic Offences), Jaipur City, Jaipur, by the Income-tax Officer, Central Circle-II, against the petitioner. The learned Chief Judicial Magistrate, under his order, took cognizance of the offence and directed issuance of a non-bailable warrant so as to effect attendance of the petitioner to face trial. Apprehending his arrest, a petition was moved in the court of the learned Sessions Judge, Jaipur City, Jaipur, under Section 438, Criminal Procedure Code, which was rejected by order dated December 8, 1986. Mr. Jagdeep Dhanker, learned counsel for the petitioner, has pointed out that a search was conducted at the premises of the petitioner on May 12, 1981, and cash amounting to Rs. 96,838 and ornaments valued by the Department at Rs. 48,905 were, found and, according to the Department, the petitioner could not explain the source. It is also pointed out that so far as the amount of jewellery is concerned, its value keeps on rising by passage of time and the valuation put by the Department is exaggerated. It is also pointed out that some jewellery has been shown to be owned sub-stantively by the wife of the petitioner, but protectively has also been added to the ownership of the petitioner and it has been stated that the same jewellery cannot be taken to belong to two parties. Learned counsel, therefore, points out that under the provisions of Section 276C(1)(i) of the Act, it is provided that if the amount sought to be evaded exceeds Rs. 1,00,000, the term of imprisonment shall not be less than six months, but may extend to seven years and fine and under Sub-clause (ii) in any other case, the term of imprisonment shall not be less than three months, but may extend to three years with fine. He has, therefore, stressed that the offence, if any, proved against the petitioner shall be covered by the latter part of Section 276C(ii) of the Act. Learned counsel further points out that the total tax required to be paid by the petitioner is Rs. 1,43,829 which has been paid and the original receipts were produced in the court. It has been further pointed out that this tux amount has been paid even though an appeal against the summary order passed by the learned Income-tax Officer has been filed which is still pending. The objections under Section 1.32(11) of the Act have also been filed and several reminders to decide the same have been sent to the Department, but with no effect and the objections are still pending. He has pointed out that the petitioner is a respectable person and is not involved in any criminal case and has no conviction to his discredit. Mr. Amar Singh, learned counsel for the Department, has, on the other hand, stressed that apart from the proceedings under Section 276C and 276CC, proceedings under Section 277 have also been initiated against the petitioner. He has also pointed out that the matter of foreign exchange recovery of certain amount of Liras is also involved against the petitioner. The value of Liras in Indian currency, according to learned counsel, is about Rs. 10. Learned counsel has stressed that the petitioner keeps going out of India frequently and may not be available to the Department, if required at any time. He has drawn my attention to the case of Pokar Ram v. State of Rajasthan [1985] SCC (Cr.) 297. This was a case regarding anticipatory bail moved by a person who was accused of committing murder by fire-arms. Their Lordships of the Supreme Court observed that in such cases, the court's approach should be cautious and relevant considerations for grant of anticipatory bail in such cases differ from those for granting other kinds of bails. In that case, the anticipatory bail granted by this court was cancelled. He has also drawn my attention to the case of State (through Deputy Commissioner of Police Special Branch, New Delhi) v. Jaspal Singh Gill [1984] SCC (Cr.) 444. This was a case relating to the offence of passing on defence secrets to a foreign agency which was punishable under the Official Secrets Act. The bail application made by the accused respondents during the investigation was rejected by the trial court. In this case, the bail granted by the High Court was cancelled by their Lordships of the Supreme Court. Both the above cases cited by learned counsel for the Department are not applicable to the facts and circumstances of the present case. One is regarding anticipatory bail in a matter involving murder and the other involving secrets of defence of the country. In the case of Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632, a special Constitutional Bench was constituted to consider the matter of anticipatory bail under Section 438, Criminal Procedure Code. It was observed by their Lordships that powers regarding anticipatory bail can be used to save a person from being injured and humiliated by arrest. On the other hand, if it appears that considering the antecedents of the applicant, he may take advantage of order of anticipatory bail and may flee from justice, such order would not be made. It was further observed that it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides. My attention has been drawn to the decision in Ram Ratan Dhamani v. State of Rajasthan (S. B. Criminal Miscellaneous Bail Application No. 1216 of 1986 decided on 2-5-1986), which was also regarding a search conducted by the Income-tax Department. The search was conducted in May, 1983, and cognizance of the offence was taken on the complaint in 1986. This court thought it proper to grant anticipatory bail on an application filed by the petitioner.
(3.) SO far as the antecedents of the petitioner are concerned, there are no other criminal cases said to be pending against the petitioner. The offence under Sections 276C and 276CC is such of which cognizance can be taken by the Magistrate only when a complaint is filed by the Department. There- fore, it cannot be said that this is a cognizable offence as it requires a complaint to be filed by the Department before the Magistrate can take cognizance of the same. The search was conducted as far back as 1981, and the complaint was filed on September 12, 1985, and the arrest is sought to be made in December, 1986. The petitioner is a citizen of Jaipur and was available all this time for any enquiry by the Department. Therefore, there is nothing further to be enquired from him as the complaint has already been filed. He has also filed objections against the summary order under Section 311 of the Act which have not been decided even till today. An appeal has also been filed against the summary order which is still pending. A second appeal is also provided under the Act which can be filed before the Income-tax Appellate Tribunal. Therefore, the whole matter is sub-judice. Apart from this, the total amount of tax as required by the Department has also been deposited by the petitioner. Keeping in view the principles laid down by their Lordships of the Supreme Court regarding grant of anticipatory bail in the case of Gurbaksh Singh, AIR 1980 SC 1632, I am inclined to accept the bail application of the petitioner under Section 438, Criminal Procedure Code. It is, therefore, directed that the accused petitioner, Prahlad Rai Saraf, shall be released on bail in Case No. 340 of 1986, pending trial in the Court of the Chief Judicial Magistrate (Economic Offences) Jaipur City, Jaipur, under Section 276C of the Income-tax Act, 1961, provided he furnishes a personal bond in the sum of Rs. 30,000 with two sureties in the amount of Rs. 15,000 each to the satisfaction of the learned Chief Judicial Magistrate, Jaipur City, Jaipur, with the following conditions : (1) that he shall make himself available for interrogation by a police officer (Department) as and when required ; (2) that he 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 (Department) (3) that he shall not leave India without the previous permission of the court. The arrest warrant issued by the court is altered to be a bailable warrant in the sum of Rs. 10,000. ;