In a significant development, the Supreme Court of India has dismissed a Special Leave Petition ( SLP ) against order of the Bombay High Court, which had set aside the invocation of Section 438 of the Criminal Procedure Code ( currently Section 482 of BNSS ) against a Summons under Section 60 of the Central Goods and Services Tax ( GST ) Act, 2017.
The Supreme Court’s decision upheld the High Court’s ruling dated April 8, 2024, in CRLA No. 118/2022, which cancelled the anticipatory bail granted by the trial court.
The matter was heard by a Vacation Bench of Justice J.B. Pardiwala and Justice Ujjal Bhuyan.
Representing the petitioner were Rajiv Malhotra, Shubham Bhalla, AOR, and Rohit Pandey, Advocates.
The petitioner, Bharat Bhushan, approached the Supreme Court after the High Court revoked the anticipatory bail initially granted by the trial court. The High Court decision was influenced by the precedent set in the Supreme Court’s order in The State of Gujarat vs Choodamani Parmeshwaran Iyer (2019).
In that case, the Supreme Court had held that if a person is summoned under Section 69 of the Central Goods and Services Tax ( CGST ) Act, 2017 for recording a statement, the provisions of Section 438 of the Code of Criminal Procedure, which deals with anticipatory bail, cannot be invoked.
It was noted by the present two-judge bench of the Supreme Court that, “In the said Special Leave Petition, this Court took the view that if any person is summoned under Section 69 of the Central Goods and Service Tax Act 2017 for the purpose of recording of his statement, the provisions of Section 438 of the Code of Criminal Procedure cannot be invoked.”
Section 69 of the Central Goods and Services Tax Act states as follows: –
“Power to arrest
(1) Where the Commissioner has reasons to believe that a person has committed any offence specified in clause (a) or clause (b) or clause (c) or clause (d) of sub-section (1) of section 132 which is punishable under clause (i) or (ii) of sub-section (1), or sub-section (2) of the said section, he may, by order, authorise any officer of central tax to arrest such person.
(2) Where a person is arrested under sub-section (1) for an offence specified under subsection (5) of section 132, the officer authorised to arrest the person shall inform such person of the grounds of arrest and produce him before a Magistrate within twenty-four hours.
(3) Subject to the provisions of the Code of Criminal Procedure, 1973,––
(a) where a person is arrested under sub-section (1) for any offence specified under sub-section (4) of section 132, he shall be admitted to bail or in default of bail, forwarded to the custody of the Magistrate;
(b) in the case of a non-cognizable and bailable offence, the Deputy Commissioner or the Assistant Commissioner shall, for the purpose of releasing an arrested person on bail or otherwise, have the same powers and be subject to the same provisions as an officer-in-charge of a police station.”
Upon hearing the counsel for the petitioner, the Supreme Court found no error in the High Court’s decision to cancel the anticipatory bail.
The bench observed that the High Court acted in accordance with the legal precedent established by the Supreme Court. However, recognizing the unique facts and circumstances of the case, the Supreme Court granted the petitioner the liberty to invoke the writ jurisdiction of the concerned High Court under Article 226 of the Constitution of India.
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The Supreme Court Bench also added that, “We are of the view that the High Court committed no error in cancelling the anticipatory bail granted by the trial court. However, in the facts and circumstances of the case, we grant liberty to the petitioner to invoke the writ jurisdiction of the concerned High Court under Article 226 of the Constitution. We are further persuaded to protect the petitioner for a period of six weeks from today”, granting interim protection to the petitioner, stating that there would be no arrest for a period of six weeks from the date of the order.
This protection is intended to allow the petitioner time to file a writ petition in the High Court, which will be considered according to law.
The Supreme Court disposed of the Special Leave Petition and any pending applications associated with the case. The court’s decision reaffirms the legal position regarding the non-applicability of anticipatory bail in cases involving summons under Section 69 of the CGST Act, 2017.
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