The Delhi High Court Clarifies the Judgment in Choodamani

On 17.07.2023, a Division Bench of the the Supreme Court passed a curious judgment in State of Gujarat v. Choodamani Parameshwaran ['Choodamani'] which seemed to hold that a person who had merely received a notice to join investigation under the Central Goods and Services Tax Act 2017 could not even apply for seeking reliefs under Section 438 of the Criminal Procedure Code 1973 to avail anticipatory bail because no First Information Report is registered in such cases. 

Choodamani was discussed on the Blog where it criticised this conclusion:

To conclude that anticipatory bail is not envisaged under the CGST Act merely because there is no First Information Report being registered is as incorrect as proposition as any. The legal position of there being no necessity for any FIR to be registered for considering anticipatory bail is as clear as day. In no uncertain terms did the Constitution Bench in Sibbia [(1980) 2 SCC 565] declare that the filing of an FIR is not a condition precedent to the exercise of powers under Section 438 of the Criminal Procedure Code. Benches of varying strengths have repeated in unison ever since that the question which courts have to consider while exercising their powers of granting anticipatory bail is not the existence of any FIR, but the reasonableness of the purported apprehension in the mind of an accused of an arrest being imminent in respect of accusations disclosing a non-bailable offence.

Nothing in the CGST Act requires courts to depart from this settled view, and it is safe to conclude that the Supreme Court of India was aware of this while passing Choodamani. Therefore, it is arguably safe to assume that this sentence is one of the many errors that have crept in this paragraph inadvertently — such as the reference to Section 69 when obviously Section 70 of the CGST Act was in the mind of the Court, and referring to the Criminal Procedure Code of '1908' when it could have only meant to refer to the 1973 Code.

Choodamani cannot, therefore, stand for the blanket proposition that no anticipatory bail request can ever be preferred in the context of the CGST Act. At best, it can only bolster the statutory position, that the accused must demonstrate reasonable apprehensions in respect of non-bailable offences under the CGST Act (which also contains bailable offences, for which anticipatory bail cannot apply). A clarification would not hurt, of course, to ensure that such an obviously inadvertent error may not come to prejudice the interests of personal liberty in the future, as even the mistakes of the Supreme Court are often too difficult to ignore for the courts below.

As expected, the shadow of Choodamani had cast itself across the practice of seeking anticipatory bail in the context of not only the CGST Act but also similar statutes where no First Information Report is lodged to commence investigations. One such context was the Prevention of Money Laundering Act 2002. A writ petition, being Ashish Mittal v. Directorate of Enforcement & Anr. [W.P. (Crl.) 2416 / 2023 ('Ashish Mittal')] thus came before the Delhi High Court seeking that a notice to join investigation be set aside and a protection against arrest be granted to the petitioner. The reason to move a writ for seeking protection from arrest, the Petitioner argued, was because of the findings in Choodamani which seemed to prohibit the filing of anticipatory bails in such scenarios.

On 19.10.2023, the Delhi High Court delivered its judgment in Ashish Mittal. While the petition itself was dismissed in respect of its main relief — of setting aside the notice to join investigation — what is relevant for this post are observations of the Court in respect of the other issue regarding impact of the judgment in Choodamani, which begin at Paragraph 34 of the opinion. Simply put, the High Court Court flagged the apparent and obvious conflict between what Choodamani seems to have held on restricting access to anticipatory bail with the prior Constitution Bench judgments of the Supreme Court in Sibbia and Sushila Aggarwal, and held that the Constitution Bench decisions must prevail. The restriction seemingly created in Choodamani was rightly ignored.

While the headlines have not led with this aspect of the opinion, it is quite significant and correctly states the legal position. Of course, this was a case under the PMLA, and at some level the Court in any case was not entirely under the shadow of Choodamani to begin with. The real test will be when a subsequent case for anticipatory bail comes up under the CGST Act — one hopes that the simple and effective elucidation of the Delhi High Court in Ashish Mittal will follow suit on that occasion as well.