THE STATE OF GUJARAT ETC. versus CHOODAMANI PARMESHWARAN IYER & ANR. ETC.

Citation: [2023] 8 S.C.R. 1139 · Decided: 17-07-2023 · Supreme Court of India · Bench: J.B. PARDIWALA, PRASHANT KUMAR MISHRA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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THE STATE OF GUJARAT ETC.
v.
CHOODAMANI PARMESHWARAN IYER & ANR. ETC.
(Criminal Appeal Nos. 1963-64 of 2023)
JULY 17, 2023
[J. B. PARDIWALA AND
PRASHANT KUMAR MISHRA, JJ.]
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
[2023] 8 S.C.R. 1139
1139
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SUPREME COURT REPORTS
[2023] 8 S.C.R.
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.
Case Law Reference
[2008] 14 SCR 179
relied on
Para 13
[1994] 2 SCR 375
followed
Para 17
(2021) 2 SCC 784
referred to
Para 18
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1963-1964 of 2023.
From the Judgment and Order dated 24.12.2018 of the High Court
of Gujarat at Ahmedabad in SCRA Nos. 11010 and 11076 of 2018.
Kanu Agarwal, Ms. Deepanwita Priyanka, Madhav Sinhal, Advs.
for the Appellants.
K. M. Nataraj, ASG, R. P. Gupta, Mukesh Kumar Maroria,
Prashant Singh I, V. Balaji, Ms. Manjula Gupta, Shailesh Madiyal, Sharath
Nambiar, Advs. for the Respondents.
The following Order of the Court was passed:
ORDER
1. Leave granted.
2. The learned counsel appearing for the private respondents
(Assessees) submitted that he is not in a position to assist this Court as
his clients are not in touch with him past almost six months.
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3. In view of the aforesaid, we had no benefit of any assistance
from the learned counsel appearing for the private respondents.
4. We have heard Mr. Kanu Agrawal, the learned counsel
appearing for the State of Gujarat.
5. It appears from the materials on record that a summons came
to be issued dated 31.10.2018 to the respondents under Section 145 of
the Central Excise Act, 1944 (for short “the Act 1944”) as made applicable
to the service tax vide Section 83 of the Finance Act, 1994 and Section
70 of the Central Goods and Service Tax Act, 2017 (for short “the CGST
Act 2017”) calling upon them to remain present for the purpose of
interrogation in conne

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