2022 (11) TMI 1516 - HC - GST

Grant of anticipatory bail application under Section 438 Cr.P.C. - Jurisdiction - power of the police officer investigating the commission of a cognizable offence, to arrest a person without an order from the Magistrate and without a warrant - HELD THAT - A perusal of Section 41 of Code of Criminal Procedure shows that there is no absolute bar against arresting a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend up to seven years with or without fine. Section 41(1)(a), however, provides that an investigating officer shall not arrest a person accused of such offences in a routine manner and the arrest be made, only after following the restrictions imposed under Section 41(1)(b). In ARNESH KUMAR VERSUS STATE OF BIHAR ANR 2014 (7) TMI 1143 - SUPREME COURT , the Apex Court while dealing with the power of the police to arrest a person under Section 41 of the Code, has held that the said power is to be exercised only after the conditions enumerated in the said Section are satisfied. Thus, it is mandatory on the part of the investigating officer to record reasons for making arrest as well as for not making arrest in respect of a cognizable offence for which the maximum sentence is up to seven years - However, arrest is not required to be made under Sub-Clause (1) of the amended Section 41 of the Code, the police is bound to issue a notice of appearance to the accused person. Even in such a case, failure to comply with the notice of appearance or unwillingness to identify himself may be grounds for the police to arrest a person to whom a notice under Section 41-A of the Code has been issued. The statutory protection under Section 41 and 41-A of the Code is already available, which the police authorities are bound to comply in this case also. Considering the facts and circumstances of the case, the present anticipatory bail application is disposed of directing the Investigating Officer to strictly comply with the provisions of Section 41 and Section 41-A of the Code of Criminal Procedure as provided by Hon'ble Supreme Court of India in Arnesh Kumar - anticipatory bail application is finally disposed of.

Summary

Issues:
Anticipatory bail application under Section 438 Cr.P.C. for an accused apprehending arrest in connection with summon/notice under CGST Act, 2017. Interpretation of Section 41 and Section 41-A of the Code of Criminal Procedure in light of the Supreme Court judgment in Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273.

Analysis:
The applicant filed an anticipatory bail application under Section 438 Cr.P.C. apprehending arrest in connection with notices issued under the CGST Act, 2017. The applicant claimed innocence and alleged false implication without disclosure of any liability by the respondent authorities. The applicant, with no prior criminal record, expressed readiness to cooperate in the investigation. The applicant's counsel argued for invoking the ratio of law laid down by the Supreme Court in Arnesh Kumar case, emphasizing the need to consider the seriousness of the offence in determining arrest necessity.

The Additional Government Advocate (AGA) contended that the alleged offence could lead to a sentence of up to seven years, necessitating compliance with the provisions of Section 41 and Section 41-A of the Code of Criminal Procedure, as directed by the Supreme Court in Arnesh Kumar case. Section 41 grants the power to arrest without a warrant for cognizable offences, subject to certain restrictions. Section 41-A mandates issuing a notice of appearance before arrest in cases where immediate arrest is not required, with non-compliance leading to possible arrest.

The judgment highlighted the importance of following the guidelines laid down by the Supreme Court in Arnesh Kumar case regarding arrest procedures. It emphasized the necessity for the investigating officer to have valid reasons for arrest or non-arrest, especially in cases where the maximum sentence is up to seven years. The judgment underscored the significance of recording reasons for arrest decisions and the need for police compliance with the statutory protections provided under Section 41 and 41-A of the Code.

In conclusion, the anticipatory bail application was disposed of with directions for the Investigating Officer to strictly adhere to the provisions of Section 41 and Section 41-A of the Code, as per the guidelines set by the Supreme Court in the Arnesh Kumar case. The judgment reiterated the importance of following legal procedures and safeguards while dealing with cases involving potential arrest, emphasizing the need for proper documentation and compliance with statutory requirements.