Prashant Sharma VS Union of India

In the case at hand, there was no appearance on behalf of the Union of India, although the name of Sri Sudarshan Singh appeared in the cause list. The court heard from Sri Mohd. Afzal, the counsel for the applicant, and the Additional Government Advocate (AGA) for the State. The case involves an anticipatory bail application filed under Section 438 of the Criminal Procedure Code (Cr.P.C.) by the accused, Prashant Sharma, who fears arrest related to a notice issued by the Central Board of Indirect Taxes and Customs (CBIC) under the Central Goods and Services Tax (CGST) Act, 2017.

The applicant’s counsel argued that Sharma is innocent, has been falsely implicated, and has no prior criminal record. The counsel contended that the authorities had not disclosed any outstanding liabilities of the applicant and that the proceedings under Section 70 of the CGST Act and Section 174 of the Act were illegal. The applicant expressed willingness to cooperate with the investigation. Furthermore, the counsel cited the Supreme Court’s judgment in *Arnesh Kumar vs. State of Bihar*, which suggests that in cases where the offense carries a sentence of less than seven years, arrest should not be automatic.

Conversely, the AGA argued that the offense in question could result in a sentence of up to seven years, and hence, the investigating officer should comply with the provisions of Sections 41 and 41-A of the Cr.P.C., as outlined by the Supreme Court.

In a recent case, the court dealt with an anticipatory bail application filed by Prashant Sharma, who feared arrest under Section 70 of the CGST Act, 2017, in connection with a summons issued by the Superintendent/ Appraiser/ Senior Intelligence of CGST & Central Excise, Ghaziabad. The application, filed under Section 438 Cr.P.C., argued that the applicant is innocent and falsely implicated, with no previous criminal history. The applicant’s counsel argued that the authorities were acting illegally and that the applicant was willing to cooperate with the investigation. The counsel also invoked the Supreme Court’s ruling in *Arnesh Kumar vs. State of Bihar*, which limits police power to arrest in cases where the offense is punishable by less than seven years of imprisonment.

The learned Additional Government Advocate (AGA) contended that the offense in question could result in a sentence of up to seven years, and therefore the police should ensure compliance with Sections 41 and 41-A of the Code of Criminal Procedure, as per the guidelines set by the Supreme Court in the Arnesh Kumar case. Section 41 of the Cr.P.C. grants police the authority to arrest without a warrant for cognizable offenses, but only after certain conditions are met. Section 41-A, introduced in 2010, requires the police to issue a notice to the accused to appear before them, and arrest is only warranted if the accused fails to comply with the notice.

The court reviewed these provisions and emphasized that while there is no absolute bar on arrest for offenses punishable by up to seven years, the arrest should not be made routinely and must comply with the restrictions in Section 41(1)(b). The court reiterated the Supreme Court’s stance in *Arnesh Kumar*, which mandates that police power to arrest should be exercised judiciously and only when the necessary conditions are met.

In this legal matter, no one appeared on behalf of the Union of India, although the name of Sri Sudarshan Singh was listed in the cause list. The court heard from Sri Mohd. Afzal, the counsel for the applicant, and the Additional Government Advocate (AGA) for the State, while reviewing the available records.

The case involves an anticipatory bail application under Section 438 of the Criminal Procedure Code (Cr.P.C.) filed by Prashant Sharma, who fears arrest related to a summons/notice issued under Section 70 of the Central Goods and Services Tax (CGST) Act, 2017 by authorities in Ghaziabad. The applicant claims innocence and alleges wrongful implication, noting the absence of any criminal history. He contends that the authorities have acted unlawfully by not disclosing any liability or dues owed by him and that the proceedings under Sections 70 and 174 of the CGST Act are legally flawed. The applicant expressed readiness to cooperate with the investigation and argued that since the alleged offense carries a punishment of less than seven years, the principles from the Supreme Court case *Arnesh Kumar v. State of Bihar* should apply, which emphasizes the need for careful consideration before making an arrest.

Conversely, the AGA argued that the alleged offense could lead to a sentence of up to seven years. In such cases, the investigating officer must adhere to the provisions of Sections 41 and 41-A of the Cr.P.C., as outlined in the *Arnesh Kumar* ruling. Section 41 grants police officers the power to arrest without a warrant in cognizable offenses, while Section 41-A, introduced in 2009, requires that in cases where arrest is not necessary, a notice of appearance should be issued instead.

The court examined the legal framework provided by Section 41, which does not prohibit the arrest of persons accused of offenses punishable by up to seven years. However, arrests in such cases must follow the restrictions in Section 41(1)(b). The *Arnesh Kumar* judgment mandates that police officers must meet specific conditions before arresting an individual, including preventing further offenses, ensuring proper investigation, preserving evidence, and preventing witness tampering. Officers must document the reasons for the arrest or the decision not to arrest. The judgment emphasizes that arrests should be carefully justified and not made routinely, ensuring that they serve a clear legal purpose.

In cases involving cognizable offenses where the maximum sentence is up to seven years, it is a legal requirement for the investigating officer to document the reasons for making or not making an arrest. This ensures transparency and accountability in the decision-making process. The officer must explicitly record these reasons, whether the decision is to proceed with the arrest or to refrain from it, providing a clear rationale for their actions in each case. This procedural step is critical in maintaining fairness and protecting the rights of individuals involved in such legal matters.

The investigating officer is obligated to document the reasons for either making or not making an arrest in cases involving cognizable offenses where the maximum sentence is up to seven years. Under the amended Section 41 of the Code, arrest is not always necessary; instead, the police are required to issue a notice of appearance to the accused. However, if the accused fails to comply with this notice or refuses to identify themselves, it may provide grounds for arrest under Section 41-A of the Code. These sections offer statutory protection to individuals, ensuring that arrests are made only when justified and that due process is followed.

The investigating officer is required to record reasons for making or not making an arrest in cases involving cognizable offenses with a maximum sentence of up to seven years. Under Sub-Clause (1) of the amended Section 41 of the Code of Criminal Procedure, arrest is not mandatory. Instead, the police must issue a notice of appearance to the accused. If the accused fails to comply with the notice or refuses to identify themselves, the police may then arrest them under Section 41-A of the Code. The statutory protections under Sections 41 and 41-A are binding on the police, and these provisions must be strictly followed. In light of this, the anticipatory bail application is disposed of with directions to the Investigating Officer to adhere to these sections, as mandated by the Hon’ble Supreme Court of India.

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