Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 916

SUPREME COURT OF INDIA
D.Y. Chandrachud, Indira Banerjee, Sanjiv Khanna, JJ.
Devendra Dwivedi - Appellant
Versus
Union Of India & Ors. - Respondents
Writ Petition(s)(Criminal) No(s). 272 of 2020
Decided On : 07-01-2021

Advocates appeared:
Mr. Mukul Rohatgi, Sr. Advocate, Mr. Bijendra Chahar, Sr. Advocate, Mr. Amit Bhandari, Advocate, Mr. Kumar Shashank, Advocate, Mr. Purushottam Sharma Tripathi, Advocate, Mr. Abhishek Tripathi, Advocate, Mr. Mukesh Kumar Singh, Advocate, Mr Vijay Aggarwal, Advocate, Mr Mudit Jain, Advocate, Mr Yugant, Advocate, Mr. Akbar Siddique, Advocate, for the Appellant; Mr K K Venugopal, Attorney General For India Mr. Tushar Mehta, Solicitor General Mr. S.V. Raju, ASG Mr. Zoheb Hossain, Advocate, Mr. Kanu Agarwal, Advocate, Mr. B. Krishna Prasad, Advocate, for the Respondent

Points of Law : Article 32 is a salutary constitutional safeguard to protect the fundamental rights of citizens - It would be appropriate to relegate the petitioner to the remedy of a petition under Article 226 so that Court has benefit of considered view of jurisdictional High Court.

Headnote:
Central Goods Service Tax Act, 2017 - Sections 69 & 132 – Prevention of Money Laundering Act, 2002 - Section 70( 1) - Constitution of India,1950 – Articles 21, 32 and 226 - Code of Criminal Procedure, 1973 - Section 154, 157, 167, 172 - Seeks permission - Issue an appropriate Writ, order(s) or direction(s) to Respondent to comply with mandatory procedure under Chapter XII of the Code of Criminal Procedure, 1973 including Section 154, 157, 167, 172 etc for valid commencement of investigation into any offence qua petitioner - Declare entire investigations erroneously commenced by Respondents qua Petitioner as non est, illegal void ab initio for not following mandatory procedure under Chapter XII of Code of Criminal Procedure, 1973 and therefore violative of procedure established by law.
Finding of The Court :
Though Counsel for petitioners invokes Article 21 this is a case involving essentially a challenge to revenue legislation - Undoubtedly jurisdiction of this Court under Article 32 is a salutary constitutional safeguard to protect fundamental rights of citizens - Court must be solicitous in exercising it where a breach of fundamental human rights is in issue - But equally whether recourse to jurisdiction under Article 32 should be entertained in a particular case is a matter for calibrated exercise of judicial discretion - There is regime of well-established remedies and procedures under laws of criminal procedure - Revenue legislation also provides its own internal discipline - Short circuiting this should not become a ruse for flooding this court with petitions which can should and must be addressed before competent for - Hence court are of the view that it would be appropriate to relegate petitioner to remedy of a petition under Article 226 so that this Court has benefit of considered view of jurisdictional High Court.
Result : Petition dismissed.

ORDER

W.P.(Crl) No.272/2020. 273/2020 and 276/2020

1. Mr Mukul Rohatgi, learned Senior Counsel appearing on behalf of the petitioners, seeks the permission of the Court to withdraw the petitions with liberty to move the High Court in appropriate proceedings.

2. The writ petitions are dismissed as withdrawn with liberty as prayed.

W.P.(Crl.) No. 298/2020

1. Invoking the jurisdiction of this Court under Article 32 of the Constitution, the following reliefs have been sought by the petitioners in these proceedings:

"1. Issue an appropriate Writ, order(s) or direction(s) declaring Sections 69 & 132 of the Central Goods Service Tax Act, 2017,as unconstitutional and ultra vires to Article 21 of the Constitution of India and hence unconstitutional, illegal and unenforceable;

2. Issue an appropriate Writ, order(s) or direction(s) to the Respondent to comply with the mandatory procedure under Chapter XII of the Code of Criminal Procedure, 1973 including Section 154, 157, 167, 172 etc for valid commencement of investigation into any offence qua the petitioner.

3. Declare the entire investigations erroneously commenced by the Respondents qua the Petitioner as non est, illegal, void ab initio for not following the mandatory procedure under Chapter XII of the Code of Criminal Procedure, 1973 and therefore violative of the "procedure established by law".

4. Issue an appropriate Writ, order(s) or direction(s) declaring Section 70( 1) of the Central Goods Service Tax Act, 2017, as unconstitutional and ultra vires to Article 20(3) of the Constitution of India and hence unconstitutional, illegal and unenforceable;

5. Issue an appropriate Writ, order(s) or direction(s) declaring Section 67 (1) and S. 69 of the CGST Act are ultra vires and violative of the principles of natural justice, as the said Section does not provide for recording of reasons to believe in writing, unlike other statutes such as Prevention of Money Laundering Act, 2002

6. Issue an appropriate Writ, order(s) or direction(s) declaring provisions of Section 137 of the CGST Act 2017 contrary to the settled principles of law, which provide that there can be no fastening of vicarious liability for a criminal offence requiring mens rea, without there being an active role being proved by the prosecution.

7. Issue an appropriate Writ, order(s) or direction(s) declaring provisions of Section 135 of CGST Act, 2017, unconstitutional as it requires Accused to disprove the reverse burden of proof not by preponderance of probability but beyond reasonable doubt."

2. The above reliefs would indicate an amalgam of:

(i) A challenge to the constitutional validity of certain provisions of the Central Goods Service Tax Act 2017;

(ii) A direction for compliance with the procedure for investigation enunciated in Chapter XII of the Code of Criminal Procedure 1973; and

(iii) Declaring the investigations which have been instituted against the petitioner as illegal.

3. During the course of the hearing, it has been urged on behalf of the petitioner that it would be necessary for this Court to entertain the present proceedings under Article 32 of the Constitution having regard to some earlier orders issuing notice, where similar issues have been involved. It has been submitted that having regard to these orders and the constitutional issues which have been raised, it would be appropriate for the Court to consider the challenge both to the constitutional validity of the statute and determine the legality of the investigation which has been commenced. It is urged that the right to life under Article 21 of the Constitution is engaged in the challenge.

4. These submissions which have been urged by Mr Vijay Aggarwal have been opposed by Mr. K. K. Venugopal, learned Attorney General for India and Mr Tushar Mehta, learned Solicitor general.

5. From the proceedings before this Court, we find that on 10 April 2019, a Bench of three-Judges declined to entertain Writ Petition (Crl) Nos. 107 and 108 of 2019. The recor

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