Rajasthan High Court: In a petition filed by the petitioner challenging the order passed by the Additional Chief Judicial Magistrate (Economic Offences) wherein his application under Section 70(2) of the Criminal Procedure Code 1973 (‘CrPC’), seeking conversion of arrest warrants into bailable warrants in offence involving fraudulent availing of Input Tax Credit (‘ITC’), was rejected, a Single Judge Bench of Anoop Kumar Dhand, J., held that ordinarily the difficulty before this Court in deciding the matter is that there are two conflicting views on the same issue by the different Division Benches of this Court of equal strength.
Accordingly, the Court stated that it had no other option but to refer the matter to the Special/Larger Bench so that the controversy was put to rest in accordance with law.
Background
In the present case, a complaint was filed against the petitioner for offences under Section 132(1)(B)(C)(L) of the Central Goods and Services Tax Act 2017 (CGST Act) read with Section 132(1)(i) of the Customs Act, 1962 contending that during the investigation, the agency had sufficient opportunity to arrest him but did not take any such steps. Instead, a complaint was directly filed. Despite this, the Magistrate, while taking cognizance issued straightaway arrest warrants for securing the petitioner’s appearance.
The petitioner argued that the alleged tax evasion attributed to him was Rs 6,00,000 and therefore arrest was unwarranted. Per contra, the respondents contended that the allegation against the petitioner is that of tax evasion amounting to Rs 10,65,23,833.
Analysis and Decision
The Court noted that the complaint had alleged fraudulent availing of ITC of Rs 10,65,23,833 under the CGST Act and the Customs Act and cognizance was taken based on a prima facie case upon which arrest warrants were issued. Further, the Court noted that by seeking conversion of these arrest warrants into bailable warrants, the petitioner had sought anticipatory bail, despite the seriousness of the allegations.
The court emphasized that large-scale tax evasion through fake firms caused substantial loss to the public exchequer, undermining national development funded by taxpayers. Such conduct constituted a serious economic offence requiring stricter judicial scrutiny in matters of arrest and bail. The court, thus, opined that economic offences were typically premeditated, involved significant financial harm, and posed a threat to the financial health of the nation.
The Court further stated that white-collar crimes, including sophisticated tax fraud, have increasingly hindered government development efforts by diverting large sums through corrupt practices. Hence, the Court held that the petitioner was not entitled to get bail merely because the alleged offence under Section 132 of the CGST Act, 2017 was punishable with imprisonment of five years and the same was triable by the Court of First-Class Magistrate. There could be no straight jacket formula in deciding bail-related matters, each case should be assessed on its own facts, the seriousness of the accusations, and the nature of the evidence.
Further, the Court stated that creation of fake or non-existing firms with an intent to pass on fake ITC on the basis of alleged supply shown in fake invoices and thereby passing on fake ITC to various beneficiaries and thus evading tax in crores of rupees, which affected the economy of the nation, would certainly fall within the purview of grave economic offences.
Hence, the Court held that in economic offences, where the accused is often well resourced and capable of manipulating evidence or evading process, their past and present conduct becomes a crucial factor that cannot be ignored while exercising judicial discretion for bail.
The Court observed that the controversy placed before it stemmed from the fact that different Coordinate Benches had taken inconsistent positions regarding the conversion of arrest warrants into bailable warrants in cases involving serious economic offences under the Prevention of Money Laundering Act 2002 (‘PMLA’), as well as heinous offences under the Penal Code 1860 (‘IPC’) or the Bharatiya Nyaya Sanhita 2023 (‘BNS’).
The Court noted that in Girdhar Gopal Bajaria v. Rajesh Kumar Sharma and in the series of criminal revision petitions led by Shyam Sunder Singhvi v. UOI 2020 SCC OnLine Raj 1981, the Coordinate Bench had adopted the view that once cognizance was taken under Sections 3 and 4 of the PMLA, arrest warrants issued against the accused could be converted into bailable warrants by exercising powers under Section 70(2) CrPC. However, the Special Leave Petition in this regard was rejected, thereby upholding the High Court’s order. The Court further noted that an entirely contrary interpretation had been adopted in P.C. Purohit v. UOI 2019 SCC OnLine Raj 4961, where another Coordinate Bench declined such conversion in a similar factual matrix.
The Court emphasized that on the same issue, conflicting views were given by different Co-ordinate Benches of this Court, hence, it was difficult to follow a particular view either in favour or against such economic offenders committing offences under the provisions of the PMLA/Customs Act/CGST Act and heinous offences punishable under IPC/BNS.
The Court highlighted the principle that judicial decorum and legal propriety mandates that where a Single Bench or Division Bench does not agree with the decision of the Bench of co-ordinate jurisdiction, the matter should be referred to a Larger Bench. Further, the Court emphasized that since there was no settled decision of this Court on the legal issue involved in this petition, it was required to be decided for all times to come, so that there should be uniformity in the orders on the said legal issue involved in these petitions.
Thus, the Court refereed the present case to the Special or Larger Bench to answer the following question: “Whether the arrest warrants issued against the accused committing economic offence or heinous offences like murder/rape/dowry death/dacoity etc. can be converted into bailable warrants as a matter of right of the accused by invoking the powers contained under Sections 70(2) of the CrPC. and 72(2) of the BNSS as a matter of right?”
The Court directed that the matter be placed before the Chief Justice for the constitution of an appropriate Larger Bench.
[Nirmal Kumar Sharma v. UOI, S.B. Criminal Miscellaneous (Petition) No. 1947 of 2025, decided on 13-11-2025]
Advocates who appeared in this case:
For the Petitioner: Rahul Khandelwal
For the Respondent: Amit Gupta-PP, Akshay Bhardwaj, Banwari Lal Takhar and Prithvi Singh Deora
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