Prashant Sharma vs. Union Of INDIA And Another

Held

The Court held that the statutory protection under Section 41 and Section 41-A of the Code of Criminal Procedure is available in cases where the offence is punishable with imprisonment for a term which may be less than seven years or which may extend up to seven years. The Court reiterated the principles laid down in Arnesh Kumar (supra), emphasizing that police officers must record reasons in writing for making an arrest, and such arrest is only permissible if it is necessary to prevent the person from committing further offences, for proper investigation, to prevent disappearance or tampering of evidence, or to prevent inducement/threat to witnesses, or to ensure the accused's presence in court. If arrest is not required, a notice of appearance under Section 41-A must be issued. Failure to comply with such a notice or unwillingness to identify oneself may then be grounds for arrest. The Court found that the investigating officer is bound to comply with these provisions. Consequently, the anticipatory bail application was disposed of with a direction to the Investigating Officer to strictly comply with Section 41 and Section 41-A of the Cr.P.C.

Facts

The petitioner, Prashant Sharma, filed an anticipatory bail application under Section 438 Cr.P.C. apprehending arrest in connection with a summon/notice dated 05.02.2021 and subsequent notices issued by the Superintendent/Appraiser/Senior Intelligence, CGST & Central Excise, Ghaziabad, under Section 70 of the CGST Act, 2017. The petitioner claimed innocence, no prior criminal history, and alleged illegal actions by the respondent authorities for not disclosing any liability. He expressed readiness to cooperate with the investigation. The proceedings under Section 70 of the CGST Act and Section 174 of the Cr.P.C. were challenged as being against the law. The Union of India did not appear, but the learned Additional Government Advocate represented the State.

Key Issues

1. Whether the provisions of Section 41 and Section 41-A of the Code of Criminal Procedure, as interpreted by the Supreme Court in Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273, are applicable to the present case concerning an alleged offence under the CGST Act, 2017, where the maximum sentence may be up to seven years? Petitioner's Contention: The petitioner argued that since the offence is punishable with less than seven years of imprisonment, the ratio of law laid down in Arnesh Kumar (supra) should be invoked, implying that arrest should not be made routinely and due process under these sections must be followed. Revenue/State's Contention: The learned AGA stated that the offence allegedly committed by the applicant entails a sentence up to seven years. In such circumstances, the investigating officer shall ensure compliance with the provisions of Section 41 and Section 41-A of the Code of Criminal Procedure, as provided by the Hon'ble Supreme Court in Arnesh Kumar (supra).