Omkar Sandeep Shipurkar vs Asst. Commissioner Of State Tax D ...
2023 Latest Caselaw 9683 Bom

2023:BHC-AS:27352
                                                          13-ABA2085-2023.DOC

                                                                                Santosh

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION


                    ANTICIPATORY BAIL APPLICATION NO. 2085 OF 2023

               Omkar Sandeep Shipurkar Proprietor of
               Veer Exim                                               ...Applicant
                                    Versus
               Asst. Commissioner of State Tax (D-32),
               Investigation Branch - A and
               State of Maharashtra                              ...Respondents

               Mr. Sujit Sahoo, for the Applicant.
               Mr. Rajnath Pathak, Special P.P. a/w Karunesh Mishra, for
                    Respondent No.1
               Mr. M. G. Patil, APP for the State.
               Mr. Mankar, Asst. Commissioner, MGST, present.

                                               CORAM: N. J. JAMADAR, J.

DATED: 14th SEPTEMBER, 2023

Order:-

1. Heard the learned Counsel for the applicant and the

learned APP for the State.

2. This is an application for pre-arrest bail in connection

with summons/File No. AC (INV-D-032)/Investigation-A/

Mumbai/2023-24/-04, issued by Assistant Commissioner of

State Tax (D-032) - respondent No.1 under Section 70 of the

Maharashtra Goods and Services Tax Act, 2017.

3. The learned Counsel for respondent No.1 submitted

that an application for pre-arrest bail under Section 438 of

13-ABA2085-2023.DOC

the Code of Criminal Procedure, 1908 is not maintainable

when only a summons under Section 70 of the Act is issued.

4. The learned Counsel for the applicant endeavoured to

contest this position. It was urged that the decision of the

Supreme Court in the case of The State of Gujarat Etc. vs.

Choodamani Parmeshwaran Iyer & Anr. Etc. 1 does not

preclude consideration of prayer for pre-arrest bail under

Section 438 of the Code.

5. I am afraid to accede to this submission. The

observations in paragraph No.16 of the judgment of the

Supreme Court in the case of Choodamani Parmeshwarn

(supra) are clear and explicit and the Supreme Court has

held, in no uncertain terms, that at the stage of summons,

the person summoned cannot invoke Section 438 of the

Code. They read as under:

"16. Thus, the position of law is that if any person is summoned under Section 69 of the CGST Act, 2017 for the purpose of recording of his statement, the provisions of Section 138 of Criminal Procedure Code, 1908 cannot be invoked. We say so as no First Information Report get registered before the power of arrest under Section 69(1) of the CGST Act, 2017 is invoked and in such circumstances, the person summoned cannot invoke Section 438 of the Code of Criminal Procedure for anticipatory bail. The only way a person summoned can seek protection against the pre-trial arrest is to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India. Undoubtedly, this is exactly

1 Criminal Appeal SLP(Cri) No.4212 - 4213 of 2019.

13-ABA2085-2023.DOC

what the respondents did in the present case. What the respondents sought by filing tow criminal applications under Article 226 of the Constitution before the High Court was the direction to the appellant herein not to arrest them in exercise of the power conferred by Section 69(1) of the GST Act, 2017. This, in essence, is key to prayer for anticipatory bail. However, as we have explained aforesaid, at the stage of summons, the person summoned cannot invoke Section 438 of the Code of Criminal Procedure."

6. In view of the aforesaid enunciation, the application

stands disposed with liberty to the applicant to avail the

remedies as permissible in law.

[N. J. JAMADAR, J.]