Facts of the Case

The petitioners, Mr. Udayasankar in W.P.(MD) No. 8898 of 2021 and Ms. Vasanthi in W.P.(MD) No. 8899 of 2021, approached the Madurai Bench of the Madras High Court by filing writ petitions under Article 226 of the Constitution of India against the Superintendent of GST and Central Excise, Department of Revenue, Office of the Commissioner of CGST & Central Excise, Head Quarters Preventive Unit, Madurai.

The petitioners sought issuance of a Writ of Mandamus to forbear the respondent from securing their custody without complying with Sections 41 and 41A of the Code of Criminal Procedure, 1973, and without giving them an opportunity to explain the summons.

Thus, the controversy placed before the Court concerned the petitioners’ apprehension regarding being taken into custody in connection with proceedings involving the GST and Central Excise authorities and their request for protection through compliance with the procedural safeguards contemplated under Sections 41 and 41A CrPC.

However, when the matters were taken up for hearing on 09.11.2022, learned counsel appearing for the petitioners sought permission from the Court to withdraw both writ petitions and made an endorsement to that effect.

Issues Involved

  1. Whether the respondent GST and Central Excise authority could secure the custody of the petitioners without complying with the procedural requirements under Sections 41 and 41A of the Code of Criminal Procedure, 1973.
  2. Whether the petitioners were entitled to an opportunity to explain the summons before any action for securing custody was taken.
  3. Whether a Writ of Mandamus under Article 226 of the Constitution of India could be issued restraining the respondent from securing the petitioners’ custody without compliance with Sections 41 and 41A CrPC.
  4. Whether any substantive adjudication on the above issues was required after the petitioners themselves sought permission to withdraw the writ petitions.

Petitioner’s Arguments

As reflected from the relief sought in the writ petitions, the petitioners’ case was that the respondent should be restrained from securing their custody without complying with Sections 41 and 41A CrPC and without providing them an opportunity to explain the summons.

The petitioners accordingly invoked the writ jurisdiction of the High Court under Article 226 of the Constitution of India, seeking a mandamus against the respondent authority.

However, the order does not record any detailed oral or written submissions on merits on behalf of the petitioners. At the hearing, learned counsel for the petitioners sought permission to withdraw the writ petitions and made an endorsement to that effect.

Respondent’s Arguments

The respondent was represented by the learned Junior Standing Counsel.

However, the order does not record any detailed arguments, objections, counter-submissions, or legal contentions on merits on behalf of the respondent. Since the petitioners sought withdrawal of the writ petitions, the Court did not proceed to record or adjudicate detailed rival submissions concerning the applicability or scope of Sections 41 and 41A CrPC.

Court Order / Findings

The Madurai Bench of the Madras High Court recorded the submission of learned counsel appearing for the petitioners that permission was sought to withdraw the writ petitions. The Court also noted that an endorsement had been made to that effect.

Accordingly, the Court ordered as follows:

  • Both writ petitions were dismissed as withdrawn.
  • No costs were awarded.
  • The connected miscellaneous petitions were also closed.

The Court did not adjudicate the substantive legal issues on merits concerning compliance with Sections 41 and 41A CrPC in the context of the petitioners’ apprehended custody.

Important Clarification

This order must be understood strictly according to its actual procedural outcome.

The Madras High Court did not hold that the GST or Central Excise authorities are either mandatorily bound or not bound by Sections 41 and 41A CrPC in every case.

The Court also did not decide:

  • the legality of any proposed custody or arrest;
  • the validity or enforceability of the summons;
  • whether the respondent had violated Sections 41 or 41A CrPC;
  • whether the petitioners had an absolute right to an opportunity to explain the summons before custody;
  • the broader scope of arrest powers under the GST law;
  • the interaction between GST arrest provisions and Sections 41 and 41A CrPC; or
  • any substantive entitlement of the petitioners to protective directions.

The petitions were disposed of solely because the petitioners sought permission to withdraw them.

Therefore, this order should not be presented as a precedent deciding the merits of Sections 41 and 41A CrPC in GST proceedings. Its operative significance is limited to the dismissal of the writ petitions as withdrawn.

Sections / Legal Provisions Involved

Article 226 of the Constitution of India
The writ petitions were filed under Article 226 seeking issuance of a Writ of Mandamus.

Section 41 of the Code of Criminal Procedure, 1973
This provision was specifically referred to in the prayer made by the petitioners in relation to compliance with legal safeguards concerning custody/arrest.

Section 41A of the Code of Criminal Procedure, 1973
This provision was also specifically invoked in the prayer, with the petitioners seeking protection against being taken into custody without compliance with the prescribed procedure.

Writ of Mandamus
The petitioners sought a direction restraining the respondent from securing their custody without compliance with Sections 41 and 41A CrPC and without an opportunity to explain the summons.

Link to download the order -https://mytaxexpert.co.in/uploads/1783329886_1122compressed.pdf

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