Justice Dipankar Datta, Justice Sheel Nagu, Supreme Court
High Court Or Sessions Court Can't Grant Protection To Accused While Dismissing Pre-Arrest Bail Petition On Ground That It Is Not Maintainable: Supreme Court
|The appeal before the Supreme Court was filed against the Bombay High Court order granting protection to the respondent Sunil Biyani, who had applied for pre-arrest bail.
While dealing with a case alleging wrongful availing and passing of Input Tax Credit (ITC) without actual supply of goods or services and non-payment of GST on import of services, the Supreme Court has held that while dismissing a petition seeking pre-arrest bail on the ground that the same is not maintainable, the High court or the Sessions court, cannot extend or grant protection which is in the nature of interim relief that could be granted during the pendency of the application.
The appeal before the Apex Court was filed against the Bombay High Court order granting protection to the respondent Sunil Biyani who had applied for pre-arrest bail. While rejecting the respondent’s application, the High Court granted protection to him from arrest for a week from the date of intimation of the order under Section 69 of the Central Goods and Services Tax Act, 2017.
The Division Bench of Justice Dipankar Datta and Justice Sheel Nagu held, “Thus, it is a settled position of law that even in cases where a petition seeking quashing of FIR or charge-sheet is dismissed, no interim relief can be granted by the high courts. In a similar vein, we have no hesitation to supplant the principle in cases of application seeking pre-arrest bail. We hold that while dismissing a petition seeking pre-arrest bail on the ground that the same is not maintainable – whatever be the ground therefor – the high court or the sessions court, as the case may be, cannot extend or grant protection which is in the nature of interim relief that could be granted during the pendency of the application.”
AOR Gurmeet Singh Makker represented the Appellant while Senior Advocate Gaurav Agarwal represented the Respondent.
Factual Background
The Directorate General of GST Intelligence (DGGI), Mumbai Zonal Unit, was investigating M/s Alphaneon Techsolutions Pvt. Ltd. and its group entities allegedly for wrongfully availing and passing of Input Tax Credit (ITC) without actual supply of goods or services, circular invoicing, and non-payment of GST on import of services. During inspection of the registered premises, the respondent, Sunil Biyani, was found present and acknowledged the inspection. During the investigation, the Department issued three summonses under Section 70 of the CGST Act to the respondent. Instead of appearing, the respondent sought adjournments and thereafter filed an application for anticipatory bail before the Sessions Court, Mumbai. It was rejected on October 14, 2025. The respondent approached the High Court seeking pre-arrest bail. Pursuant to the High Court's interim directions, the respondent appeared before the Department. During the course of the hearing before the High Court, the Department filed an affidavit averring that no order under Section 69 had been passed as the investigation was still at a nascent stage.
The High Court rejected the application for anticipatory bail, noting that in the absence of an order under Section 69 of the CGST Act, there could be no apprehension of arrest and, hence, an application for anticipatory bail could not be entertained. However, the High Court granted relief through the protection order.
Reasoning
The Bench, at the outset, referred to the judgment in Radhika Agarwal v. Union of India (2025) wherein it has been observed that mere issuance of summons under Section 70 of the CGST Act does not make the person summoned an accused. Considering that the respondent had merely been summoned when he unsuccessfully applied for pre-arrest bail, the Bench noted that rejection of such application by the High Court, though not under challenge, stood affirmed.
The Bench noted that a 5-Judge Bench of the Apex Court in State of Orissa v. Madan Gopal Rungta (1951) had observed that a petition under Article 226 of the Constitution of India cannot be used for the sole purpose of issuing interim relief when the High Court is of the opinion that the petition itself is not maintainable. The Bench also took note of the established principle that interim relief can only be in the aid of and ancillary to the main relief.
The Bench held that while dismissing a petition seeking pre-arrest bail on the ground that the same is not maintainable, the High Court or the Sessions Court cannot extend or grant protection in the nature of interim relief.
The Bench further clarified that the order passed by the Commissioner under Section 69 of the Central Goods and Services Tax Act, 2017 is required to be communicated to the person sought to be arrested.
Thus, setting aside the protection granted to the respondent vide the impugned order, the Bench held that the Commissioner should communicate the order under Section 69 of the GST Act to the respondent.
Cause Title: Union of India v. Sunil Biyani (Neutral Citation: 2026 INSC 849)
Appearance
Appellant: AOR Gurmeet Singh Makker
Respondent: Senior Advocate Gaurav Agarwal, AOR Arjun Garg, Advocates Arushi Kulshrestha, Saaransh Shukla, Muskan Bensla, Mrinmoyee Das