SC Rejects Anticipatory Bail in GST Summons Case U/S 69, Grants Interim Protection

The Supreme Court of India in development has ignored a Special Leave Petition (SLP) against an 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 u/s 60 of the Central Goods and Services Tax (GST) Act, 2017.

The decision of the Apex court was upheld by the ruling of the High Court on 8th April 2024, in CRLA No. 118/2022, which cancelled the anticipatory bail granted by the trial court.

A Vacation Bench of Justice J.B. Pardiwala and Justice Ujjal Bhuyan heard the case.

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Representing the applicant were Rajiv Malhotra, Shubham Bhalla, AOR, and Rohit Pandey, Advocates.

After the High Court revoked the anticipatory bail initially granted by the trial court, the applicant, Bharat Bhushan, approached the Supreme Court. By the precedent set in the Supreme Court’s order in The State of Gujarat vs Choodamani Parmeshwaran Iyer (2019), the High Court decision was influenced.

In that circumstance, the Supreme Court had ruled that if a person is summoned u/s 69 of the 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 remarked 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 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 expresses as follows: –

“Power to arrest

• 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.
• 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.

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, to release 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.”

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The Apex Court discovered no error in the decision of the High Court to cancel the anticipatory bail on hearing the applicant’s counsel.

It was noted by the bench that the High Court acted as per the statutory precedent designated by the Apex Court. The Apex Court recognizing the facts and situations of the matter granted the applicant the liberty to invoke the writ jurisdiction of the related High Court under Article 226 of the Constitution of India.

The Supreme Court Bench mentioned that we have the opinion that the High Court has executed an error in cancelling the anticipatory bail granted by the trial court. However, in the facts of the case, we grant liberty to the applicant to invoke the writ jurisdiction of the related High Court under Article 226 of the Constitution. Further, we were convinced to protect the applicant for six weeks from today, granting interim protection to the applicant, remarking that there would be no arrest for 6 weeks from the order date.

The same protection has been intended to permit the applicant time to file a writ petition in the High Court that shall be acknowledged under the regulation.

The Special Leave Petition and any pending applications related to the case have been disposed of by the Apex court. The court’s decision reaffirms the statutory position for the non-applicability of anticipatory bail in cases concerning summons u/s 69 of the CGST Act, 2017.