Kamal Sharma S/O Ram Prasad Sharma vs. Union Of INDIA

Held

The Court held that the trial court had committed an error in summoning the petitioner straightway by issuing an arrest warrant. It reasoned that the proper procedure would have been to summon the petitioner by way of a summons or a bailable warrant. Only in the event of the petitioner's non-appearance after such summons or bailable warrant could the court have proceeded to issue an arrest warrant. The Court found that the petitioner's contention regarding the procedural irregularity in the issuance of the arrest warrant was valid. Therefore, the petition filed by the petitioner deserved to be allowed. The Court set aside the trial court's order dated 30.04.2022 concerning the issuance of the arrest warrant and directed the trial court to issue a bailable warrant for summoning the petitioner. The ratio decidendi is that direct issuance of an arrest warrant by a trial court, without following the prescribed procedure of issuing summons or bailable warrants first, is erroneous and liable to be set aside.

Facts

The petitioner, Kamal Sharma, filed a criminal miscellaneous petition challenging orders that dismissed his revision petition and an application to convert an arrest warrant into a bailable warrant. The respondent, Union of India (Chief Commissioner, Central Goods and Services Tax), had filed a complaint, leading the trial court to take cognizance under Section 89 of the Finance Act, 2014, read with Section 174 of the CGST Act, 2017, and issue an arrest warrant against the petitioner. The petitioner's grievance is that the trial court erred by issuing an arrest warrant directly without first issuing a summons or a bailable warrant. The allegations involve the petitioner collecting Rs. 1,19,22,953/- as service tax and failing to deposit it with the government. The petitioner also has an appeal pending before the Appellate Tribunal against the demand.

Key Issues

1. Whether the trial court erred in issuing an arrest warrant directly against the petitioner without first issuing a summons or a bailable warrant, as per established procedural norms, particularly concerning offenses up to Rs. 2.00 Crores which are stated to be bailable? (Question of law and procedure, turning on principles of criminal procedure and the interpretation of relevant provisions regarding issuance of warrants). Petitioner's Arguments: The petitioner argued that the trial court committed an error by issuing an arrest warrant directly. He contended that the court should have first issued a summons, and only upon the petitioner's non-appearance after service of the summons, could it proceed to issue a bailable warrant, followed by an arrest warrant if necessary. Reliance was placed on Supreme Court judgments in Tarsem Lal Vs. Directorate of Enforcement, Satender Kumar Antil Vs. Central Bureau of Investigation, Inder Mohan Goswami Vs. State of Uttranchal, and Vikas Vs. State of Rajasthan, as well as High Court orders in Madan Lal Vs. State of Rajasthan and M/s Winsome Breweries Ltd. Vs. Union of India. Respondent's Arguments: The respondent argued that the petition was not maintainable, asserting that the petitioner is an economic offender who caused significant loss to the government exchequer, and therefore, the trial court was justified in issuing the arrest warrant.