Tax recovery notice under Rule 73 does not amount to accusation of a non-bailable offence for anticipatory bail.

A notice under Rule 73 of the Second Schedule to the Income-tax Act is part of the statutory tax recovery machinery after a recovery certificate is drawn under Section 222, and it follows notice, hearing and inquiry before any possible detention in civil prison. Section 438 CrPC applies only where there is a reason to believe arrest may follow an accusation of a non-bailable offence, so a tax-recovery notice does not itself create that apprehension. The process is distinct from prosecution for the penal offence under Section 276-C. On that reasoning, anticipatory bail was not maintainable in relation to the Rule 73 notice.

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Issues: Whether a person served with a notice under Rule 73 of the Second Schedule to the Income Tax Act, 1961, can invoke Section 438 of the Code of Criminal Procedure, 1973 on the footing that arrest and detention in civil prison are apprehended.

Analysis: Section 438 applies only where a person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence. A notice under Rule 73 is part of the statutory machinery for recovery of tax dues from a defaulter after a certificate has been drawn up under Section 222 of the Income-tax Act, 1961. The recovery process contemplates notice, hearing, inquiry, and only thereafter a possible order of detention under Rules 74 to 76. It is distinct from prosecution for the penal offence under Section 276-C of the Income-tax Act, 1961, which may attract the criminal procedure applicable before the Special Court. The notice issued for tax recovery does not amount to an accusation of a non-bailable offence and does not create an immediate apprehension of arrest within the meaning of Section 438.

Conclusion: The petition under Section 438 of the Code of Criminal Procedure, 1973 was not maintainable and was liable to be dismissed.

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