Omkar Sandeep Shipurkar vs. Asst. Commissioner Of State Tax D 032 Investigation Branch A And An

Held

The Court held that an application for pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1908, is not maintainable at the stage when only a summons has been issued under Section 70 of the Maharashtra Goods and Services Tax Act, 2017. The Court relied on the clear and explicit observations of the Supreme Court in paragraph 16 of its judgment in The State of Gujarat Etc. vs. Choodamani Parmeshwaran Iyer & Anr. Etc. The Supreme Court held that at the stage of summons, a person summoned cannot invoke Section 438 of the CrPC because no First Information Report has been registered, and the power of arrest under Section 69(1) of the CGST Act, 2017, has not been invoked. The Court clarified that the appropriate remedy in such circumstances is to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India for protection against pre-trial arrest. The application was disposed of with liberty to the applicant to avail permissible remedies in law.

Facts

The applicant, Omkar Sandeep Shipurkar, proprietor of Veer Exim, filed an application for pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1908. This application was in response to a summons issued by the Assistant Commissioner of State Tax (D-032), Investigation Branch – A, under Section 70 of the Maharashtra Goods and Services Tax Act, 2017. The summons was issued in connection with File No. AC (INV-D-032)/Investigation-A/Mumbai/2023-24/-04. The State, represented by the Assistant Commissioner, argued that a pre-arrest bail application under Section 438 of the CrPC is not maintainable when only a summons has been issued.

Key Issues

1. Whether an application for pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1908, is maintainable when a person has been issued a summons under Section 70 of the Maharashtra Goods and Services Tax Act, 2017, and not yet arrested. The petitioner contended that the Supreme Court's decision in The State of Gujarat Etc. vs. Choodamani Parmeshwaran Iyer & Anr. Etc. does not preclude consideration of a prayer for pre-arrest bail under Section 438 of the CrPC at the summons stage. The respondent revenue authority argued that a pre-arrest bail application under Section 438 of the CrPC is not maintainable when only a summons under Section 70 of the Act has been issued, citing the Supreme Court's judgment in The State of Gujarat Etc. vs. Choodamani Parmeshwaran Iyer & Anr. Etc.