Vemula Yougander Vs Union of India (Telangana High Court)
Summary: The Telangana High Court considered a petition filed under Section 438 CrPC seeking anticipatory bail in connection with DGGI proceedings where summons had been issued under Section 70 of the Central Goods and Services Tax Act, 2017. The petitioner apprehended arrest on account of the summons requiring his appearance for giving evidence and production of documents and submitted that he had been called repeatedly for examination. The Court specifically recorded that, despite the petitioner having appeared over a period of time, the Department had admittedly taken no steps under Section 69 of the CGST Act. The High Court relied upon State of Gujarat v. Choodamani Parmeshwaran Iyer and another, 2023 SCC OnLine SC 1043, in which the Supreme Court held that at the summons stage a person cannot invoke Section 438 CrPC for anticipatory bail because no FIR gets registered before exercise of the power of arrest under Section 69(1) of the CGST Act. The Supreme Court had further explained that protection against pre-trial arrest at that stage could be sought by invoking the High Court’s jurisdiction under Article 226 of the Constitution of India. Applying that ruling, the Telangana High Court held that at the stage of summons the petitioner could not invoke Section 438 CrPC. Consequently, the criminal petition was disposed of. However, the Court expressly left the petitioner at liberty to invoke its writ jurisdiction, if so advised. Any pending miscellaneous applications were also ordered to stand closed.
Cases Discussed
- State of Gujarat v. Choodamani Parmeshwaran Iyer and another, 2023 SCC OnLine SC 1043 (Supreme Court) — Relied upon for the proposition that at the stage of summons, before exercise of the arrest power under Section 69(1) of the CGST Act, a person summoned cannot invoke Section 438 CrPC for anticipatory bail; protection against pre-trial arrest may instead be sought by invoking the High Court’s jurisdiction under Article 226 of the Constitution.
FULL TEXT OF THE JUDGMENT/ORDER OF TELANGANA HIGH COURT
This Criminal Petition is filed under Section 438 of Cr.P.C. by petitioner seeking bail in the event of his arrest in connection with F. No. DGGI/INV/GST/3272/2023-Gr-F-O/oADG-DGGI-ZU-Hyderabad, dated 06.10.2023.
2. Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the respondent-State.
3. The petitioner is apprehending arrest since summons under Section 70 of the Central Goods and Services Tax Act, 2017, were issued and he was asked to appear for the purpose of giving evidence and production of documents.
4. Learned Counsel for the petitioner submits that the petitioner is been called time and again for the purpose of examination.
5. Admittedly, no steps were taken by the Department under Section 69 of the Central Goods and Services Tax Act, 2017, though the petitioner had been appearing over a period of time.
6. The Honourable Supreme Court in State of Gujarat v. Choodamani Parmeshwaran Iyer and another1 held at para-16 as follows;
“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 438 of Criminal Procedure Code, 1908 cannot be invoked. We say so as no First Information Report gets 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 what the respondents did in the present case. What the respondents sought by filing two 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.”
7. The Honourable Supreme Court held that at the stage of summons the person summoned cannot invoke Section 438 of the Code of Criminal Procedure.
8. In view of the aforesaid observation of the Honourable Supreme Court, the Criminal Petition is disposed off. Needless to say the petitioner is at liberty to invoke writ jurisdiction of this Court, if so advised.
Miscellaneous applications, if any pending in this criminal petition, shall stand closed.
Notes:-
1 2023 SCC OnLine SC 1043
