The Supreme Court has clarified that a High Court cannot grant a week-long protection from arrest when the underlying pre-arrest bail application is dismissed, and it has mandated that any order under Section 69 of the CGST Act must be communicated to the accused before arrest.
Background & Facts
The Dispute
The Union of India appealed against a protective order granted by the High Court of Judicature at Bombay to Sunil Biyani, who had applied for pre-arrest bail. The High Court, while rejecting Biyani’s bail application on 13 February 2026, nevertheless directed that he not be arrested for a week from the date of intimation of an order under Section 69 of the Central Goods and Services Tax Act, 2017.
Key Facts
- The Directorate General of GST Intelligence (DGGI), Mumbai Zonal Unit, was investigating M/s Alphaneon Techsolutions Pvt. Ltd. for alleged wrongful availing of Input Tax Credit, circular invoicing, and non-payment of GST on import of services.
- During inspection, Sunil Biyani was present and acknowledged the inspection.
- The Department issued three summonses under Section 70 of the CGST Act to Biyani; he sought adjournments and did not appear.
- Biyani filed an anticipatory bail application before the Sessions Court, Mumbai, which was rejected on 14 October 2025.
- He then approached the High Court for pre-arrest bail; the High Court rejected the bail application on 13 February 2026 but granted a protective order for one week from the date of intimation of a Section 69 order.
- The Department later filed an affidavit stating that no order under Section 69 had been passed as the investigation was at a nascent stage.
Procedural History
- 14 Oct 2025: Sessions Court rejected anticipatory bail application.
- 13 Feb 2026: High Court rejected pre-arrest bail application but granted protection from arrest for one week from intimation of a Section 69 order.
- 12 Aug 2026: Supreme Court delivered judgment, setting aside the protective order and directing communication of any Section 69 order.
The Parties' Positions
- Union of India (Appellant): Contended that the High Court lacked jurisdiction to grant interim protection after dismissing the bail application and that no Section 69 order existed; therefore, no apprehension of arrest could arise.
- Sunil Biyani (Respondent): Argued that protection from arrest was necessary pending clarification of his liability and that the order under Section 69 should be communicated to enable him to seek anticipatory bail.
Relief Sought
The Union of India sought a setting aside of the High Court’s protective order and a declaration that no interim relief could be granted in the circumstances. Sunil Biyani sought confirmation of the protective order and direction that any Section 69 order be communicated to him.
The Legal Issue
Whether a High Court can grant a week-long protection from arrest under Section 69 of the CGST Act while dismissing a pre-arrest bail application, and whether communication of a Section 69 order to the accused is a mandatory prerequisite for seeking anticipatory bail.
Arguments Presented
For the Appellant
The Union relied on Radhika Agarwal v. Union of India to argue that a summons under Section 70 does not make a person an accused, and on State of Orissa v. Madan Gopal Rungta to assert that interim relief must be ancillary to the main relief and cannot be granted when the writ is dismissed. It further submitted that without a Section 69 order, there is no basis for arrest, rendering the High Court’s protective order ultra vires.
For the Respondent
Sunil Biyani contended that the protective order was necessary to prevent unlawful arrest pending clarification of his status, and that principles of natural justice require the Section 69 order to be communicated before any arrest, thereby enabling him to file anticipatory bail.
The Court's Analysis
The Court began by noting that the respondent had not challenged the High Court’s dismissal of his bail application, limiting the appeal to the protective order. It reiterated the principle from Radhika Agarwal that a summons under Section 70 does not convert a summoned person into an accused under Article 20(3) of the Constitution. The Court then examined the scope of Article 226, citing State of Orissa v. Madan Gopal Rungta and Hema Mishra to emphasize that interim relief must be ancillary to the main relief and cannot be granted when the primary petition is dismissed.
"The language of Article 226 does not permit such an action and once the Court finds no merits in the challenge, the writ petition will have to be dismissed and the question of granting further relief after dismissal of the writ, does not arise."
The Court further held that Section 69 of the CGST Act empowers the Commissioner to authorize arrest only after recording “reasons to believe” that an offence under Section 132 has been committed. Until such an order is passed and communicated, no apprehension of arrest can arise, and consequently, no basis exists for granting pre-arrest protection.
Relying on Gurbaksh Singh Sibbia v. State of Punjab, the Court stressed that procedural safeguards under Section 438 CrPC cannot be undermined by imposing conditions not found in the statute. It concluded that the High Court’s protective order was untenable because it was predicated on a non-existent Section 69 order and was granted after the bail application had been dismissed.
The Court therefore set aside the protective order and directed the Commissioner to communicate any Section 69 order to the respondent, after which the respondent may seek anticipatory bail in accordance with the law.
The Verdict
The Supreme Court set aside the High Court’s protection from arrest for one week, held that no interim relief can be granted when a pre-arrest bail application is dismissed, and ordered that the Commissioner communicate any order under Section 69 of the CGST Act to the respondent. No monetary or custodial relief was awarded.
What This Means For Similar Cases
Protection from Arrest Cannot Be Granted When Bail Application Is Dismissed
- Courts must ensure that any interim relief is ancillary to a maintainable main relief.
- A dismissed anticipatory bail petition precludes the grant of protective orders.
Section 69 Order Must Be Communicated Before Arrest
- The Commissioner’s order authorising arrest must contain “reasons to believe” and be communicated to the person concerned.
- Communication can be effected via electronic means as permitted under the CGST Rules.
Interim Relief Must Align With Statutory Scope
- Courts cannot create procedural safeguards beyond what Section 438 CrPC or Section 69 CGST prescribe.
- Practitioners should focus on obtaining a valid Section 69 order before seeking anticipatory bail.
Practical Takeaways
- Verify the existence and communication of a Section 69 order before filing pre-arrest bail.
- Avoid seeking interim protection in a writ petition where the main relief is already dismissed.
- Cite State of Orissa v. Madan Gopal Rungta and Radhika Agarwal for arguments on the limits of Article 226.
