2018 (6) TMI 1575 - HC - GST

Anticipatory bail - arrest of the petitioner by the respondents or their sub-ordinate officers pursuant to the summons dated 15.11.2017 - Held that - The apprehension of arrest in a non-bailable offence is a sine qua non to maintain a petition under Section 438 of Cr.P.C. It is not the case of the petitioner that he has been apprehending his arrest in any non-bailable offence and therefore, on the face of it, the provisions of Section 438 of CR.P.C. do not get attracted to the facts of this case. A reading of the summons issued by the respondents indicates that the petitioner has been asked to appear before the respondents in person along with the documents for inquiry in connection with service Tax matters - There is absolutely no basis for the petitioner to contend that he would be arrested by the authorities. The summons having been issued for the appearance of the petitioner, there are no justifiable reason to exercise the powers under Section 438 of Cr.P.C. Petition dismissed.

Summary

Issues:
1. Petition filed under Section 438 of Cr.P.C. seeking anticipatory bail.
2. Interpretation of the summons issued by the Superintendent AE-V.
3. Apprehension of arrest in a non-bailable offense.
4. Justifiability of exercising powers under Section 438 of Cr.P.C.

Analysis:
1. The petitioner filed a petition under Section 438 of Cr.P.C. seeking anticipatory bail in anticipation of being arrested by the respondents or their subordinate officers following a summons dated 15.11.2017 issued by the Superintendent, Anti-Evasion Unit-V, GST West Commissionerate, Bangalore.

2. The summons issued to the petitioner by the Superintendent AE-V of the office of the Commissioner of Central Tax was examined. The summons required the petitioner's attendance for an inquiry related to Service Tax matters and requested the petitioner to appear in person with specific documents at a designated time and place. The court noted that the summons was for the petitioner's appearance and did not indicate any intention of arrest by the authorities.

3. The court emphasized that the apprehension of arrest in a non-bailable offense is a crucial condition to maintain a petition under Section 438 of Cr.P.C. In this case, the petitioner did not demonstrate any fear of arrest in a non-bailable offense. The summons merely required the petitioner's presence for an inquiry, and there was no basis for the petitioner to assume an imminent arrest. Consequently, the provisions of Section 438 of Cr.P.C. were deemed inapplicable to the facts of this case.

4. Given the absence of any valid reason for the petitioner to anticipate arrest and the nature of the summons issued for inquiry purposes, the court found the petition to be misconceived. Therefore, the court dismissed the petition as it did not find any justifiable grounds to exercise the powers under Section 438 of Cr.P.C.