Power to arrest under GST is statutory in character and ordinarily the writ court should not interfere with exercise of such power

[Vivek Jalan]

On ground, under the GST Law the procedure followed for arrest of a person is that a summon is issued first u/s 70 of The CGST Act 2017. Immediately post Summon, prosecution is invoked in case the Commissioner has reasons to believe that a non-bailable offense u/s 132 of The CGST Act has been committed. Therefore, many a times those taxpayers who fear arrest, resist from appearing for summon itself. The question therefore before the various Writ Courts is whether a direction can be issued that before arrest some time is given to the person sought to be arrested. The Hon’ble Apex Court in the case of THE STATE OF GUJARAT ETC. VERSUS CHOODAMANI PARMESHWARAN IYER & ANR. ETC. -  2023 (7) TMI 1008 - SUPREME COURT has affirmed against the taxpayer in this aspect. This judgement could have wide implications not only under The GST Law but also under other tax laws like Income Tax Law, etc.

The word "arrest" is derived from the French word "arrater" meaning "to stop or stay". It signifies a restraint of a person. "Arrest" is thus a restraint of a man's person, obliging him to be obedient to law. "Arrest" then may be defined as "the execution of the command of a Court of Law or of a duly authorized officer". Sections 41-44 and 46 of the Code of Criminal Procedure, 1973 deal with arrest of a person. The Apex Court in UNION OF INDIA VERSUS PADAM NARAIN AGGARWAL ETC. - 2008 (10) TMI 1 - SUPREME COURT (which was in context with the powers of Custom Officers to arrest under the Customs Act), in KARTAR SINGH VERSUS STATE OF PUNJAB - 1994 (3) TMI 379 - SUPREME COURT and in P.V. RAMANA REDDY VERSUS UNION OF INDIA & ORS. - 2019 (5) TMI 1528 - SUPREME COURT laid down the following principles –

A. The statutory power of arrest must be exercised on objective facts of commission of an offence enumerated and the officer concerned must have reason to believe that a person sought to be arrested has been guilty of such an offence.

B. The Writ Court should not impose any condition before effecting arrest. If any conditions are imposed before effecting arrest for instance giving prior intimation to the person concerned etc., the statutory provisions would be rendered ineffective, nugatory and meaningless.

C. Application for anticipatory bail merely on issuance of a Summon is premature and Section 438 of CrPC on anticipatory bail can be invoked very sparingly at this stage as held in Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569.

D. Section 41A (3) of Cr.P.C., does not provide an absolute irrevocable guarantee against arrest. Despite the compliance with the notices of appearance, a Police Officer himself is entitled under Section 41A (3) Cr.P.C., for “reasons to be recorded”, arrest a person. However, Section 69(1) of CGST Act uses the phrase “reasons to believe”. Hence the powers conferred to a Commissioner of GST to arrest are much wider and incase after the summon proceeding he feels that the taxpayer has in fact committed cognizable and non-bailable offenses u/s 132 of CGST Act, he may Order for arrest.

On the basis of the above, it is clear that only incase the Commissioner has reasons to believe that cognizable and non-bailable offenses u/s 132 have been committed can he Order for arrest. Guidelines for prosecution issued vide INSTRUCTION No. 04/2022-23 [GST – Investigation], needs to be followed. Taxpayers cannot not resist from appearing for summons before the proper officer, even if there is an apprehension for arrest. Application for anticipatory bail merely on issuance of a Summon is premature and can be invoked very sparingly.