Central Goods and Services Tax Act, 2017 – s.69 – Summons issued under – Invocation of s.438, CrPC by the person summoned – Impermissibility of – Held: If any person is summoned u/s.69, 2017 Act for the purpose of recording of his statement, the provision of s.438, Cr.PC cannot be invoked – The only way a person summoned can seek protection against the pre-trial arrest is to invoke the jurisdiction of the High Court u/Art.226 – This is exactly what the respondents did in the present case – By filing criminal applications u/Art. 226 before the High Court, the respondents sought direction to the appellant not to arrest them in exercise of the power conferred by s.69(1), 2017 Act – This, in essence, was prayer for anticipatory bail – However, at the stage of summons, the person summoned cannot invoke s.438, CrPC – Power to arrest a person by an empowered authority under the GST Act is statutory in character and ordinarily the Writ Court should not interfere with exercise of such power – Impugned order directing the concerned authority to complete the adjudicatory process within 8 weeks and give two more weeks to the respondents for taking necessary steps if there was a need for any apprehension and if they were not ready to fulfill their obligation, set aside – However, one more opportunity given to both the respondents to appear before the authorities for recording their statements – On their failure to appear, authority to proceed in accordance with law – Code of Criminal Procedure, 1973 – s.438 – Constitution of India – Article 226 – Central Excise Act, 1944 – s.145 – Finance Act, 1994 – s.83.
Constitution of India – Article 226 – Application for pre-arrest protection under – Held: There is no bar for the High Court to entertain an application for pre-arrest protection u/Art.226 however, such power should be exercised sparingly – There is a fundamental distinction between a petition for anticipatory bail and the writ of mandamus directing an officer not to effect arrest – A writ of mandamus would lie only to compel the performance of the statutory or other duties – No writ of mandamus would lie to prevent an officer from performing his statutory function – When a writ application is filed before the High Court u/Art.226 , the writ court owes a duty to examine the fact of the case and ascertain whether the case of the writ applicant falls under the category of exceptional cases as indicated in Kartar Singh case.
Kartar Singh vs. State of Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375 – followed.
Union of India vs. Padam Narain Aggarwal and Ors. (2008) 13 SCC 305 : [2008] 14 SCR 179 – relied on. P.V. Ramana Reddy vs. Union of India (2021) 2 SCC
784 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.