Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(SC) 405

SUPREME COURT OF INDIA
SANJIV KHANNA, CJI., M.M. SUNDRESH, BELA M. TRIVEDI, JJ.
Radhika Agarwal – Petitioner
Versus
Union of India And Others – Respondents
Writ Petition (Criminal) No. 336 of 2018 With Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 1534 of 2018) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 2971 of 2018) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 4078 of 2018) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 7408 of 2018) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 11049 of 2018) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 244 of 2019) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 3647 of 2019) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 5153 of 2019) Criminal Appeal Nos. of 2025 (Arising Out of Special Leave Petition (Criminal) Nos. 4322-4324 of 2019) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 4546 of 2019) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 9541 of 2019) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 3366 of 2020) CIVIL APPEAL NO. of 2025 (ARISING OUT of SPECIAL LEAVE PETITION (CIVIL) NO. 20310 of 2021) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 6660 of 2020) Writ Petition (Criminal) No. 6 of 2021 Writ Petition (Criminal) No. 40 of 2021 Writ Petition (Criminal) No. 47 of 2021 Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 1031 of 2021) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 1107 of 2021) Writ Petition (Criminal) No. 144 of 2021 Writ Petition (Criminal) No. 445 of 2023 Writ Petition (Criminal) No. 585 of 2023 Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 11839 of 2019) TRANSFERRED CASE (CRIMINAL) NO. 5 of 2018 Writ Petition (Criminal) No. 118 of 2019 Writ Petition (Criminal) No. 119 of 2019 Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 6834 of 2019); Writ Petition (Criminal) No. 212, 239, 253, 261, 263, 266, 267, 273, 286, 287, 285, 288, 298, 299, 306 & 346 of 2019 Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 647 of 2020) Writ Petition (Criminal) No. 387 of 2020 Writ Petition (Criminal) No. 9 of 2020 Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 1732 of 2020) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 618 of 2020) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 2023 of 2020) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 6456 of 2020) Writ Petition (Criminal) No. 36 of 2020 Writ Petition (Criminal) No. 35 of 2020 Writ Petition (Criminal) No. 49 of 2020 Writ Petition (Criminal) No. 73 of 2020 Writ Petition (Criminal) No. 93 of 2020 Writ Petition (Criminal) No. 124 of 2020 Writ Petition (Criminal) No. 140 of 2020 Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 2814 of 2020); Writ Petition (Criminal) No. 142, 184, 221, 223, 228, 286 and 329 of 2020 Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 5536 of 2020) Writ Petition (Criminal) No. 380 of 2020 Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 6172 of 2020) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 6303 of 2020) Writ Petition (Civil) No. 1401 of 2020 Writ Petition (Criminal) No. 411 of 2020 Writ Petition (Criminal) No. 410 of 2020 Writ Petition (Criminal) No. 4 of 2021 Writ Petition (Civil) No. 56 of 2021 Writ Petition (Criminal) No. 33 of 2021 Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 1073 of 2021) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 1072 of 2021) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) Nos. 2050-2054 of 2021) Writ Petition (Criminal) No. 301 of 2021 Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 6338 of 2021) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 6847 of 2021) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. of 2025) (ARISING OUT of DIARY NO. 31616 of 2021) Writ Petition (Criminal) No. 175 of 2022 Writ Petition (Criminal) No. 222 of 2022 Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 6395 of 2022) Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 10421 of 2022) Writ Petition (Criminal) No. 402 of 2022 Writ Petition (Criminal) No. 385 of 2022 Writ Petition (Criminal) No. 426 of 2022 Writ Petition (Criminal) No. 434 of 2022 Writ Petition (Criminal) No. 453 of 2022 Writ Petition (Criminal) No. 456 of 2022 Writ Petition (Criminal) No. 466 of 2022 Writ Petition (Criminal) No. 500 of 2022 Writ Petition (Criminal) No. 506 of 2022 Writ Petition (Criminal) No. 516 of 2022 Writ Petition (Criminal) No. 502 of 2022; Writ Petition (Criminal) No. 7, 9, 24, 54, 209, 120, 118, 126, 150, 164, 165, 203, 174, 190, 268, 296, 333, 315, 339, 303 of 2019 305 of 2019 313 of 2019 309 of 2019 28 of 2020 61 of 2020 90 of 2020 89 of 2020 285 of 2020 69 of 2021 359 of 2021 520 of 2021 334, 332, 338, 337, 357, 384, 403, 431, 408, 428, 452, 454, 453, 449, 461, 493, 464, 473, 475, 484, 497, 538, 526, 529, 521, 516, 518, 562, 539, 549, 610, 548, 550, 551, 542, 569, 537, 573, 570, 564, 560, 544, 545, 563, 578, 575, 572, 592, 571, 604, 597, 600, 611, 617, 626, 623, 635, 640, 622, 637, 632, 625, 628, 639, 638, 645, 649, 650, 664, 641, 658, 653, 652, 644, 647, 663, 648, 660 & 655 of 2023 Transfer Petition (Criminal) No. 1016 of 2023 Writ Petition (Criminal) No. 5, 3, 29, 6, 13, 18, 35, 33, 34, 31, 30, 32, 46, 44, 56, 59, 55, 51, 68, 73, 71, 78, 107, 81, 82, 92, 98, 88, 87, 93, 103, 89, 101, 99, 100, 102, 118, 113, 111, 131, 133, 130, 117, 135, 134, 132, 162, 163, 136, 161, 139, 143, 152, 172, 167, 171, 181, 179, 177, 173, 185, 176, 192, 194, 204, 207, 214, 210, And 198 of 2024 Criminal Appeal No. of 2025 (Arising Out of Special Leave Petition (Criminal) No. 853 of 2024)
Decided On : 27-02-2025

Advocates appeared:
For the Petitioner(s): Mr. Vikam Chaudhary, Sr. Adv. Dr. G.K. Sarkar, Adv. Mr. Keshvam Chaudhari, Adv. Mr. Harshit Sethi, Adv. Mrs. Malbika Sarkar, Adv. Ms. Arveen Sekon, Adv. Mr. Ayush Choudhary, Adv. Mr. Prashant Srivastav, Adv. Ms. Malvika Sarkar, Adv. Mr. Rishi Shegal, Adv. Mr. Digvijay Singh, Adv. Ms. Nikita Gill, Adv. Mr. Sameer Pandey, Adv. Mr. Deepak Singh, Adv. Mr. Kartik Yadav, Adv. Ms. Aneesha Singh, Adv. Ms. Chandni Sharma, Adv. Ms. Muskan Khurana, Adv. Mr. Ayush Chaudhary, Adv. Mr. Sahil Sharma, Adv. Mr. Devanshu Yadav, Adv. Mr. Gautam Awasthi, AOR Mr. Umesh Kumar Shukla, Adv. Mr. Kapil Dahiya, Adv. Mr. V.N. Raghupathy, AOR Mr. R. Gopinath, Adv. Mr. Hari Krishnan, Adv. Mr. Amrish Kumar, AOR Mr. S. Nagamuthu, Sr. Adv. Mr. Sunil Kumar Jain, AOR Mr. Parmatama Singh, Adv. Mr. Mayanak Jain, Adv. Mr. Madhur Jain, Adv. Ms. Priyanka Goel, Adv. Mr. R.P. Singh, Adv. Mr. Pankaj Chaudhary, Adv. Mr. Anurag Mishra, Adv. Mr. Aman Sinha, Adv. Mr. Yash Agarwal, Adv. Mr. Raj Shekhar, Adv. Mr. Raj Shekhar Sharma, Adv. Ms. Alpana Sharma, AOR Mr. Vikram Chaudhri, Sr. Adv. Mr. Gautam Awasthi, Adv. Dr. G.K. Sarkar, Adv. Mr. Keshavam Chaudhri, Adv. Mr. Ayush Choudhary, Adv. Mr. Rishi Sehgal, Adv. Ms. Arveen Sekon, Adv. Ms. Malbika Sarkar, Adv. Ms. Hargun Sandhu, Adv. Mr. Prashant Srivastav, Adv. Mr. Digvijay Singh, Adv. Ms. Muskan Khurana, Adv. Ms. Aneesha Sinha, Adv. Mr. Rishab Tewri, Adv. Mr. Devanshu Yadav, Adv. Mr. Deepak Singh, Adv. Mr. Nikilesh Ramachandran, AOR Mr. Upendra Pratap Singh, AOR Mr. Kunwar Gangesh Singh, Adv. Mr. Jatin Harjai, Adv. Ms. Pratibha Singh, Adv. Mr. Mohit Kumar Soni, Adv. Ms. Richa Singh, Adv. Mr. Rohan Aggarwal, Adv. Ms. Yashvi Chechani, Adv. Ms. Madhulika Singh, Adv. Ms. Aarushi Bansal, Adv. Ms. Jaishree Kothari, Adv. Mr. Prativa Prakash Janapriya Nayak, AOR Ms. Anzu. K. Varkey, AOR Ms. Bharti Tyagi, AOR Mr. Amit K. Nain, AOR Mr. Tarun Gupta, AOR Mr. Siddharth Luthra, Sr. Adv. Mr. Sandeep Goyal, Adv. Mr. Pawanshree Agrawal, AOR Mr. Vikram Chaudhri, Sr. Adv. Mr. Nikhil Jain, AOR Mr. Rishi Sehgal, Adv. Ms. Arveen Sekhon, Adv. Ms. Muskaan Khurana, Adv. Ms. Divya Jain, Adv. Mr. Tarun Gulati, Sr. Adv. Mr. Saurabh Kirpal, Sr. Adv. Mr. Abhishek Garg, Adv. Mr. Amar Gahlot, Adv. Mr. Rajat Mittal, AOR Mr. Varun K Chopra, Adv. Mr. Ujjawal Kansal, Adv. Mr. Yash Gaiha, Adv. Ms. Anshi Bhatia, Adv. Mr. Apurva M Gokhale, Adv. Mr. Prashant Singh, Adv. Mr. Suprateek Neogi, Adv. Mr. Ranesh Mankotia, Adv. Mr. Priyanshu, Adv. Mr. Rohit Anil Rathi, AOR Mr. Yashas R.K., Adv. Ms. Niharika Singh, Adv. Mr. Jinendra Jain, AOR Mr. Ajay Jain, Adv. Mr. Krishna Sharma, Adv. Mr. M.N. Mishra, Adv. Ms. Shreya Jain, Adv. Mr. Manoj Gautam, Adv. Mr. Manoj, Adv. Ms. Mitika Choudhary, Adv. Mr. Harshit Batra, Adv. Mr. Vijay Kasana, AOR Mr. Tarun Dua, AOR Mr. Raj Kishor Choudhary, Adv. Mr. Javed R. Sheikh, Adv. Mr. Shakeel Ahmed, AOR Mr. Rizwan Ahmad, Adv. Mr. Paras Nath Singh, Adv. Mr. Anupam Bhati, Adv. Ms. Pratibha Singh, Adv. Mr. Nakul Chaudhary, Adv. Mr. Himanshu Gupta, Adv. Mr. Akhil Krishan Maggu, Adv. Mr. Deepak Gupta, Adv. Ms. Oshin Maggu, Adv. Mr. Ayush Mittal, Adv. Mr. Sujeet Kumar, Adv. M/s. V. Maheshwari & Co., AOR Mr. Ajay Choudhary, AOR Mr. Vijay Choudhary, Adv. Mr. Khem Chand, Adv. Mr. Yadav Narender Singh, AOR Mr. Sriharsha Peechara, Adv. Mr. Ashish Kumar Tiwari, AOR Mr. Anurag Tiwari, Adv. Mr. Duvvuri Subrahmanya Bhanu, Adv. Mr. Sahib Patel, Adv. Mr. Akshat Kulshrestha, Adv. Mr. Suryanarayana Singh, Sr. Adv. Ms. Pragati Neekhra, AOR Mr. Aditya Bhanu Neekhra, Adv. Mr. Atul Dong, Adv. Mr. Aniket Patel, Adv. Ms. Sharda Garg, Adv. Mr. Deepkaran Dalal, AOR Mr. Rahul Krishna, AOR Mr. Swarnendu Chatterjee, AOR Mr. Ujjawal Anand Sharma, Adv. Mr. Prashant Sivarajan, Adv. Mr. D. Kumanan, AOR Mr. Tushar Saigal, Adv. Mr. Justine George, Adv. Mr. Surya Kiran Singh, Adv. Mr. S. V. Raju, ASG Mr. Zoheb Hossain, Adv. Mr. Annam Venkatesh, Adv. Mr. Kanu Agarwal, Adv. Mr. Vivek Gurnani, Adv. 6 Mr. Arkaj Kumar, Adv. Mr. Samrat Goswami, Adv. Mr. Hitharth Raja, Adv. Mr. Kanishk Maurya, Adv. Ms. Agrimaa Singh, Adv. Ms. Ritumbhara Garg, Adv. Mr. Suradhish Vats, Adv. Mr. Vivek Gaurav, Adv. Mr. Mukesh Kumar Maroria, AOR Mr. Vinodh Kanna B., AOR Mr. M.K. Subramanian, Adv. Mr. Tarun Dev, Adv. Ms. Epil Moushmi Bodra, Adv. Ms. Kharunya, Adv. Mr. Mohammad Aslam, AOR Mr. Prakhar Sharma, Adv. Ms. Piya Uppal, Adv. Ms. Anu Gupta, AOR Mr. Amjad Hussain, AOR Mr. Nishant Bishnoi, AOR Ms. Srishti Prabhakar, Adv. Ms. Natasha Dalmia, AOR Mr. Arman Roop Sharma, Adv. Ms. Shimpy Sharma, Adv. Mr. Mohd. Aman Khan Afghani, Adv. Dr. Vinod Kumar Tewari, AOR Mr. S.K. Verma, AOR Mr. Neeraj Kumar Verma, AOR Mr. Alok Kumar Pandey, Adv. Mr. Kunal Prakash, Adv. Mr. Puneet Jain, Sr. Adv. Mr. Mann Arora, Adv. Ms. Akriti Sharma, Adv. Mr. Harsh Jain, Adv. Mr. Om Sudhir Vidyarthi, Adv. Ms. Christi Jain, AOR Dr. Sushil Balwada, AOR Mr. Kaushal Yadav, Adv. Mr. Nandlal Kumar Mishra, Adv. Mr. Saurabh Ajay Gupta, AOR Mr. Gaurav, AOR Mr. D. Abhinav Rao, AOR Mr. Rahul Jajoo, Adv. Ms. Megha Shaw, Adv. Mr. Raghav Bherwani, Adv. Mr. Abhishek Das, Adv. Mr. Ashish Batra, AOR Mr. Malak Manish Bhatt, AOR Ms. Neeha Nagpal, Adv. Mr. Shreyansh Chopra, Adv. Mr. Apurva Mehta, Adv. Mr. Rajiv Shankar Dvivedi, AOR Mr. Yusuf, AOR Ms. Sharmila Upadhyay, Adv. Mr. Pawan R Upadhyay, Adv. Mr. S.S. Sastry, Adv. Mr. Vipul Srivastava, Adv. M/s. Unuc Legal LLP, AOR Mr. Akshat Vachher, Adv. Mr. Shery Lodha, Adv. Mr. Aman Vachher, Adv. Mr. Ashutosh Dubey, Adv. Mr. Dhiraj, Adv. Ms. Abhiti Vachher, Adv. Mr. Parvesh Bansal, Adv. Mr. Jasvinder Choudhary, Adv. Mr. Saket Sikri, Adv. M/s. Vachher And Agrud, AOR Mr. S. Gowthaman, AOR Mr. Ashutosh Kumar, Adv. Mr. Manish Kumar Choudhary, Adv. Ms. Srishti Choudhary, Adv. Ms. Shefali Choudhary, Adv. Ms. Namita Choudhary, AOR Mr. Aljo K. Joseph, AOR Mr. Sheikh Mohsin, Adv. Mr. Vinay Kumar Puvvala, Adv. Mr. N. Leela Vara Prasad, Adv. Mr. Siddharth Singh, Adv. Mr. Abhinav P Dhanodkar, Adv. Mr. Fuzail Ahmad Ayyubi, AOR Mr. Avadh Bihari Kaushik, AOR Ms. Astha Sharma, AOR Mr. Raj Kamal, AOR Mr. Aseem Atwal, Adv. Mr. Anurag Chandra, Adv. Ms. Nupur Kaushik, Adv. Mr. Ranjit Kumar Sharma, AOR Mr. Siddharth Bhatnagar, Sr. Adv. Mr. Mahesh Agarwal, Adv. Mr. Ankur Saigal, Adv. Mr. Rishi Agrawala, Adv. Ms. Komal Joshi, Adv. Mr. Pushkraj Despande, Adv. Mr. Anshuman Srivastava, Adv. Mr. Arshit Anand, Adv. Mr. Piyush Pandhare, Adv. Mr. Nishant Rao, Adv. Mr. Rohan Marathe, Adv. Mr. Abhinabh Garg, Adv. Mr. Himanshu Saraswat, Adv. Ms. Sayaree Basu Malik, Adv. Ms. Manavi Agarwal, Adv. Mr. E. C. Agrawala, AOR Mr. Kunal Verma, AOR Mr. Prasouk Jain, Adv. Ms. Rabiya Thakur, Adv. Mr. Karan Sinha, Adv. Mr. Anurag Sharma, Adv. Mr. Anshuman Srivastava, AOR Mr. Raj Kishor Choudhary, AOR Mr. Shivam Sharma, Adv. Mr. Shakeel Ahmed, Adv. Ms. Pratibha Singh, Adv. Mr. Vikram Patralekh, Adv. Mr. Nakul Chaudhary, Adv. Mr. Himanshu Gupta, Adv. Mr. Rishabh Sancheti, Adv. Mr. Armaan Arora, Adv. Ms. Divya Roy, AOR Mrs. Priya Puri, AOR Mr. Anand Varma, AOR Mrs. Anjali Jha Manish, AOR Mr. Siddharth Luthra, Sr. Adv. Mr. Sandeep Goyal, Adv. Mr. Pawanshree Agrawal, AOR
For the Respondent(s): M/s. Khaitan & Co., AOR Mr. Nikhil Jain, AOR Mr. Amrish Kumar, AOR Mr. Shamik Shirishbhai Sanjanwala, AOR Dr. Sujay Kantawala, Adv. Mr. Azmat Hayat Amanullah, AOR Ms. Rebecca Mishra, Adv. Mr. Ajay Aggarwal, Adv. Mr. Adarsh Aggarwal, Adv. Mr. Naveen Bindal, Adv. Mr. Rajan Narain, AOR Mr. Tarun Dua, AOR Ms. Diksha Rai, AOR Ms. Atiga Singh, Adv. Mr. Piyush Vyas, Adv. Ms. Purvat Wali, Adv. Dr. Vijendra Singh, AOR Mr. Deepak Goel, Adv. Mr. Kumar Abinandan, Adv. Ms. Apurva Mahndiyan, Adv. Ms. Rashi Bansal, AOR Mr. B. Krishna Prasad, AOR Mr. Gurmeet Singh Makker, AOR Mr. Kanu Agarwal, Adv. Ms. Deepanwita Priyanka, AOR Ms. Devina Sehgal, AOR Mr. Yatharth Kansal, Adv. Mr. Dhananjay Yadav, Adv. Mr. M.K. Subramanian, Adv. Mr. Vinodh Kanna B., AOR Ms. Kharunya, Adv. Mr. Tarun Dev, Adv. Ms. Epil Moushmi Bodra, Adv. Ms. Swati Ghildiyal, AOR Mr. Shrirang B. Varma, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Tushar Mehta, S.G. Mr. S.V. Raju, A.S.G. Mr. K.M. Nataraj, A.S.G. Mr. G.S. Makkar, Adv. Ms. Sairica Raju, Adv. Mr. Mukesh Kumar Maroria, AOR Mr. Annam Venkatesh, Adv. Mr. Zoheb Hossain, Adv. Mr. Kanu Agrawal, Adv. Mr. Ashutosh Gadhe, Adv. Mr. Arkaj Kumar, Adv. Mr. Sharath Nambiar, Adv. Mr. Vivek Gurnani, Adv. Ms. Shraddha Deshmukh, Adv. Mr. Padmesh Mishra, Adv. Mr. Rajat Nair, Adv. Mr. Tushar Mehta, S.G. Mr. Suryaprakash V. Raju, A.S.G. Mr. Zoheb Hossain, Adv. Mr. Kanu Agrawal, Adv. Ms. Sairica Raju, Adv. Mr. Ashutosh Gadhe, Adv. Mr. Annam Venkatesh, Adv. Mr. Hitarth Raja, Adv. Mr. Harsh Paul Singh, Adv. Mr. Gaurav Sarkar, Adv. Mr. Animesh Upadhyay, Adv. Mr. Sathvik Reddy Sudireddy, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Samrat Goswami, Adv. Mr. Chirag M. Shroff, AOR Mr. Guntur Pramod Kumar, AOR Ms. Prerna Singh, Adv. Mr. Dhruv Yadav, Adv. Mr. Mahfooz Ahsan Nazki, AOR Mr. Nishe Rajen Shonker, AOR Mrs. Anu K. Joy, Adv. Mr. Alim Anvar, Adv. Mr. Santhosh K, Adv. Mr. Vishal Meghwal, Adv. Dr. Charu Mathur, Adv. Mr. Milind Kumar, AOR Mr. B.S. Rajesh Agrajit, Adv. Mr. Manish Chaubey, Adv. Ms. Dipti Singh, Adv. Mr. Vidhan Vyas, Adv. Mr. Kausar Raza Faridi, AOR Mr. Syed Haider Shah, Adv. Mr. Abhimanyu Tewari, AOR Ms. Eliza Bar, Adv. Mr. Shuvodeep Roy, AOR Mr. Saurabh Tripathi, Adv. Mr. Deepayan Dutta, Adv. Mr. Bhakti Vardhan Singh, AOR Mr. Rajesh Kumar Singh, Adv. Ms. Disha Singh, AOR Ms. Sanya Kaushal, Adv. Mr. Deepak Thukral, A.A.G. Mr. Samar Vijay Singh, AOR Mr. Vishal Mahajan, Adv. Ms. Sabarni Som, Adv. Mr. Aman Dev Sharma, Adv. Mr. Fateh Singh, Adv. Mr. Keshav Mittal, Adv. M/s. Khaitan & Co., AOR Mr. Annam Venkatesh, AOR Mr. Rajat Mittal, AOR Mr. Suprateek Neogi, Adv. Mr. Priyanshu, Adv. Mr. Kanu Agrawal, AOR Mr. Malak Manish Bhatt, AOR Mr. Ashish Batra, AOR Mr. Nikilesh Ramachandran, AOR Mr. Vikram Chaudhary, Sr. Adv. Mr. Ashish Batra, Adv. Mr. Gautam Awasthi, AOR Mr. Deepak Singh, Adv. Mr. Shubham Bhalla, AOR Mr. Karan Bharihoke, AOR

IMPORTANT POINTS
(1) Power to arrest – Threshold for arrest under Section 104(1) of Customs Act is higher than that under Section 41 of Code – Provisions of Code would be applicable to the extent there is no contrary provision in special act or any special provision excluding jurisdiction and applicability of Code – Customs Officers are not Police Officers,
(2) Anticipatory bail – Power to grant anticipatory bail arises when there is apprehension of arrest – It is not essential that application for anticipatory bail should be moved only after an FIR is filed, as long as facts are clear and there is a reasonable basis for apprehending arrest.
(3) Power of Judicial Review – Constitution permits both punitive and preventive detention provided it is according to procedure established by law made for the purpose, and if both law and procedure laid down by law, are valid – Judicial intervention is warranted only in exceptional circumstances.

Headnote:
Per Sanjiv Khanna, CJI
(A) Customs Act, 1962 – Section 104 – Prevention of Money Laundering Act, 2002 – Section 19 – Criminal Procedure Code, 1973 – Sections 4, 5, 41-D and 50-A – Power to arrest – Threshold for arrest under Section 104(1) of Customs Act is higher than that under Section 41 of Code – Provisions of Code would be applicable to the extent there is no contrary provision in special act or any special provision excluding jurisdiction and applicability of Code – Customs Officers are not Police Officers – Obligation to provide grounds of arrest is incumbent upon Customs officers – Customs officers must also maintain records of their statutory functions including details like name of informant, name of person who has violated law, nature of information received by officers, time of arrest, seizure details, and statements recorded during course of detection of offence(s) – Section 41-D of Code is applicable for offences under Customs Act – Person arrested by a customs officer has right to meet Advocate of his choice during interrogation, but not throughout interrogation – Arrests cannot be made arbitrarily on whims and fancies of authorities – Judicial review is permissible both before and after criminal proceedings or prosecution complaints are filed – Wrong application of law or arbitrary exercise of duty by designated officer can lead to illegality in the process – Court can exercise judicial review to strike down such decision – There is substantively no difference between a person being guilty of an offence and a person committing an offence insofar as Section 19(1) vis-à-vis Section 104(1) is concerned – There is no inconsistency between Section 19(1) of PML Act and Section 104(1) of Customs Act. (Paras 13,16, 24, 26, 33, 35, 41,43 & 46)
(B) Central Goods and Services Tax Act, 2017 – Sections 67, 69, 70 and 132 – Constitution of India – Article 20(3) – Power to arrest – There is no specific stipulation or provision in GST Acts in respect of facets of investigation, inquiry or trial – GST Acts are not a complete code when it comes to provisions of search, seizure and arrest – Provisions of Code would equally apply when they are not expressly or impliedly excluded by provisions of GST Acts – To pass an order of arrest in case of cognizable and non-cognizable offences, Commissioner must satisfactorily show that person to be arrested has committed a non-bailable offence and that pre-conditions of Sub-Section (5) to Section 132 of Act are satisfied – Failure to do so would result in illegal arrest – Arrest cannot be made to merely investigate whether conditions are being met – Arrest is to be made on formulation of opinion by Commissioner, which is to be duly recorded in reasons to believe – Reasons to believe must be explicit and refer to material and evidence underlying such opinion – There has to be a degree of certainty to establish that offence is committed and that such offence is non-bailable – Principle of benefit of doubt would equally be applicable and should not be ignored either by Commissioner or by Magistrate when accused is produced before Magistrate – In case there is breach of law and assessees are put under threat, force or coercion, assessees would be entitled to move courts and seek a refund of tax deposited by them – Department would also take appropriate action against officers in such cases – However, person summoned under Section 70 of GST Acts is not per se an accused protected under Article 20(3) of Constitution because prohibitive sweep of Article 20(3) of Constitution does not go back to stage of interrogation. (Paras 50, 51, 56, 57, 59, 68 and 69)
(C) Criminal Procedure Code, 1973 – Section 438 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 482] – Constitution of India – Article 21 – Anticipatory bail – Power to grant anticipatory bail arises when there is apprehension of arrest – This power, vested in courts under the Code, affirms right to life and liberty under Article 21 of Constitution to protect persons from being arrested – When a person complains of apprehension of arrest and approaches for an order of protection, such application when based upon facts which are not vague or general allegations, should be considered by court to evaluate threat of apprehension and its gravity or seriousness – In appropriate cases, application for anticipatory bail can be allowed which may also be conditional – It is not essential that application for anticipatory bail should be moved only after an FIR is filed, as long as facts are clear and there is a reasonable basis for apprehending arrest. (Para 70)
(D) Constitution of India – Article 246-A – Central Goods and Services Tax Act, 2017 – Sections 69 and 70 – Special provisions with respect to goods and services tax – Parliament, under Article 246-A of Constitution, has power to make laws regarding GST and, as a necessary corollary, enact provisions against tax evasion – Article 246-A of Constitution is a comprehensive provision and doctrine of pith and substance applies – While deciding issue of legislative competence, entries should not be read in a narrow or pedantic sense but given their broadest meaning and widest amplitude because they are intrinsic to a machinery of government – Penalty or prosecution mechanism for levy and collection of GST, and for checking its evasion, is a permissible exercise of legislative power – GST Acts, in pith and substance, pertain to Article 246-A of Constitution and powers to summon, arrest and prosecute are ancillary and incidental to power to levy and collect goods and services tax – Vires challenge to Sections 69 and 70 of GST Acts must fail and accordingly rejected. (Para 75)
Bela M. Trivedi, CJI [Separate Assenting View]
Constitution of India – Articles 32 and 226 – Power of Judicial Review – Constitution permits both punitive and preventive detention provided it is according to procedure established by law made for the purpose, and if both law and procedure laid down by law, are valid – Judicial intervention is warranted only in exceptional circumstances when arrest is prima facie found to be malafide; or is prompted by extraneous circumstances, or is made in contravention of or in breach of provisions of concerned statute or when authority acting under concerned statute does not have requisite authority etc. – Safeguards provided against arrest of a person under Special Acts or Code of Criminal Procedure, must be observed not only to protect his fundamental right of personal liberty but also to prevent potential misuse of power to arrest a person at instance of authorized officer – There has to be due compliance of Constitutional and Statutory mandates, whenever arrest is made of a person under Special Acts – When legality of such arrest made under Special Acts like PMLA, UAPA, Foreign Exchange, Customs Act, GST Acts, etc. is challenged, Court should be extremely loath in exercising its power of judicial review--In such cases, exercise of power should be confined only to see whether statutory and constitutional safeguards are properly complied with or not – Sufficiency or adequacy of material on the basis of which belief is formed by officer, or correctness of facts on the basis of which such belief is formed to arrest the person, could not be a matter of judicial review. (Paras 3, 4, 6, 9 and 12)
Facts of the case:
Fountainhead of legal controversy regarding the power to arrest under Customs Act, 1962 and Central Goods and Services Tax Act, 2017, stems from the decision of a three Judge Bench of this Court in Om Prakash and Another v. Union of India and Another, (2011) 14 SCC 1. Before this decision, offences under Customs Act were treated as non-bailable and once arrested, accused would be detained for a few months before being released on bail.
Findings of Court:
Though, power of judicial review keeps a check and balance on functioning of public authorities and is exercised for better and more efficient and informed exercise of their powers, such power has to be exercised very cautiously keeping in mind that such exercise of power of judicial review may not lead to judicial overreach, undermining the powers of the statutory authorities.
Result : Reference answered.

JUDGMENT :

SANJIV KHANNA, CJI.

Leave granted.

2. The fountainhead of legal controversy regarding the power to arrest under the Customs Act, 1962¹[For short, “Customs Act”.] and the Central Goods and Services Tax Act, 2017, ²[For short, “GST Act”.] stems from the decision of a three Judge Bench of this Court in Om Prakash and Another v. Union of India and Another, (2011) 14 SCC 1. Before this decision, offences under the Customs Act were treated as non-bailable and once arrested, the accused would be detained for a few months before being released on bail. Om Prakash (supra) observed that the offences under the Customs Act and the Central Excise Act, 1944⁴[For short, “Excise Act”.] were non-cognizable and, therefore, even if the officers had the power to arrest, ⁵[Pursuant to Sections 132, 133, 135, 135A and 136 of the Customs Act and Section 13 of the Central Excise Act, 1944.] they could do so only after obtaining a warrant from the Magistrate in terms of Section 41⁶[Section 41 of the Code delineates circumstances when the police may arrest without a warrant.] of the Code of Criminal Procedure, 1973. ⁷[For short, “Code”.] It was also held that offences under the Customs Act and the Excise Act were both bailable, bearing a punishment of less than 3 years. ⁸[Part II of the First Schedule to the Code provides that offences which bear an imprisonment term of less than 3 years are both non-cognizable and bailable.]

3. The reasoning in Om Prakash (supra) proceeds on the interpretation of Sections 4⁹[“4. Trial of offences under the Indian Penal Code and other laws.— (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”] and 5¹⁰[“5. Saving.— Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”] of the Code and holds that Section 155 and other provisions of Chapter XII of the Code are applicable. The principle being that the customs officers and excise officers, though conferred the power of arrest under the respective enactments, the offences being non-cognizable, were not vested with powers beyond that of a police officer in charge of the police station.

4. Before us, the ratio in Om Prakash (supra) has been questioned on various grounds. For the following reasons, we are not inclined to go into all the issues:

• Secondly, and more significantly, it is apparent that the legislature has accepted the ratio of the said decision and made specific amendments to the Customs Act. The ratio is equally given effect to and incorporated in the GST Act.

• Thirdly, the ratio in Om Prakash (supra) promotes and protects the life and liberty of citizens and, corrects earlier prevalent wrongdoings which diminished the constitutional and statutory rights of citizens.

However, we would refer to certain portions of Om Prakash (supra) in the context of the present litigation to interpret relevant provisions of the Customs Act and the GST Act.

5. ‘Cognizable offence’, defined in Section 2(c) of the Code, means an offence for which the police officer may, in accordance with the First Schedule of the Code or any other law for the time being in force, arrest without a warrant. ‘Non- cognizable offence’, defined in Section 2(l) of the Code, means an offence for which a police officer has

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