Samarpan Jain vs State Of U.P. And 2 Others

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. WRIT PETITION No. - 23466 of 2025
Samarpan Jain
.....Petitioner(s)
Versus
State Of U.P. And 2 Others
.....Respondent(s)
Counsel for Petitioner(s) : Sharad Sharma, Sushil Shukla
Counsel for Respondent(s) : G.A.
Court No. - 47
HON'BLE J.J. MUNIR, J.
HON'BLE TARUN SAXENA, J.
Order on Criminal Misc. Amendment Application No.3 of 2026.
1. The application is allowed .
2. Let the amendment be carried out during the course of the day.
Order on Writ Petition
1. A counter affidavit has been filed by respondent no. 3, to which a
rejoinder has been filed and a personal affidavit of the Deputy
Commissioner, State Goods and Services Tax Department, Sector-I,
Rampur has also been filed.
2. The parties do not propose to file any further affidavits.
3. Admit.
4. Heard forthwith.
5. Heard Mr. Sushil Shukla, learned Senior Advocate assisted by Mr.

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Sharad Sharma, learned Counsel for the petitioner, Mr. Anoop Trivedi,
learned Additional Advocate General, assisted by Ms. Sadhna Singh,
learned Additional Government Advocate appearing on behalf of
respondent no. 3 and Mr. Shashi Shekhar Tiwari, learned Additional
Government Advocate appearing on behalf of respondent nos. 1 and 2.
6 . In its amended form, this petition now challenges the First Information
Report dated 04.10.2025 giving rise to Case Crime No. 205 of 2025,
under Sections 61(2), 318(4), 336(3), 338, 340(2), BNS, Police Station-
Ganj, District- Rampur as well as the impugned cognizance order dated
08.05.2026 passed by the learned Additional Chief Judicial Magistrate,
Court No. 1, Rampur and the Charge-sheet No. 45 of 2026 dated
04.04.2026 on the Magistrate’s file.
7. The short case of the petitioner is that he is an Advocate enrolled with
the Bar Council of U.P. since 20.12.2021. He practices and specializes in
indirect taxes, direct taxes and corporate laws. He is also an Advocate on
Record before this Court, his AOR No. being A/S0088/2025. One Aqueel
Miyan is the proprietor of the firm called M/s ABA Traders having
GSTIN-09DIQPM4088H1Z with its registered office at Mohalla Hazrat
Colony, Rampur. He approached the petitioner and engaged him as his
Advocate to file a statutory appeal under Section 107 of the Goods and
Services Tax Act, 2017 questioning orders dated 16th of April, 2025
passed by the Deputy Commissioner, GST, Sector-1, Rampur, under
Section 74 of the State Goods and Services Tax Act, 2017 assessing a
sum of Rs. 3,55,05,189/- as tax, besides interest and penalty for the
financial year 2022-2023 and Rs. 4,80,54,748/- as tax, interest and
penalty for the financial year 2023-2024 against his firm.

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8. According to the instructions of his client Aqueel Miyan, the petitioner
filed two online statutory appeals on 15th of August, 2025 before the
Appellate Authority-3 in accordance with Section 107 of the GST Act,
2017, uploading the memoranda of appeals and other required documents
on the GST Portal in respect of two identical orders dated 18.04.2025
passed by the Deputy commissioner, GST, Sector-1, Rampur. It is
emphasized that payment of pre-deposit of 10 % of the disputed tax by
utilization of the Input Tax Credit and Electronic Credit Ledger of any
assessee is permissible under CBIC-20001/2/2022- GST dated
06.07.2022. The aforesaid provision and procedure for making pre-
deposit was interpreted that way by a Division Bench of the Gujarat High
Court in M/s Yasho Industries Ltd. v. Union of India and another , a
judgment that was upheld by the Supreme Court in Union of India and
another v. Yasho Industries Ltd., 2025 SCC OnLine SC 1526.
9. The case further is that after filing of the statutory appeals on
24.09.2025, the petitioner's client was served dasti with an intimation
dated 23.09.2025 from the office of the Appellate Authority-3,
Moradabad wherein it was said that the pre-deposit of 10 % of the
disputed tax from his Electronic Credit Ledger, utilizing Input Tax Credit
for filing a statutory appeal cannot be accepted as statutory pre-deposit for
the purpose. He was, therefore, directed to clarify on 25.09.2025 on the
question of maintainability of the appeal.
10. It is then said that the petitioner was intimated of the Appellate
Authority’s communication on 23.09.2025, late in the night of
24.09.2025, and as the petitioner was to attend some urgent meeting at
Ghaziabad, he expressed his inability to attend the hearing at Moradabad.

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The petitioner’s client could not arrange an adjournment and the
Appellate Authority dismissed the statutory appeal on ground of
maintainability, with the remark that pre-deposit of 10% of the disputed
tax made by the assessee from his Electronic Ledger, utilizing Input Tax
Credit, was not acceptable as a valid tender.
11. After the above appellate order was passed, the informant, that is to
say, the Deputy Commissioner of GST, respondent no.3, instead of
proceeding to recover the assessed amount of tax, interest and penalty
from the petitioner’s client, lodged the impugned F.I.R. on 04.10.2025,
not only against the petitioner’s client but also nominating the petitioner
for allegedly making a pre-deposit of 10% of the dispute tax out of the
Electronic Credit Ledger by utilizing Input Tax Credit, which, according
to the informant, was an illegal course adopted by the petitioner’s client in
appealing his order. It was also alleged in the F.I.R. that there was evasion
of GST committed by the petitioner’s client in conspiracy with the
petitioner in order to cause financial loss to the State Exchequer. It is this
part of the F.I.R. which aggrieves the petitioner.
12. It is submitted by Mr. Shushil Shukla, learned Senior Advocate that
the petitioner, in filing the appeal and making a tender of the requisite fee
deposit of disputed tax, acted in his "professional capacity" and did so to
the best of his knowledge, going by the laws of the land, as declared by
the Superior Courts of the Country. He relied for the purpose on the
Division Bench decision of the High Court of Gujarat in M/s Yasho
Industries Ltd. ( supra ).
13. The submission is that even if the petitioner acted in error, he was
acting in a "professional capacity". There is nothing to show that he was a

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partner in his client’s business and, therefore, a conspirator.
14. The further submission is that it is a very perilous proposition to
accept that an Advocate, who enters appearance for his client and takes a
particular course of action, that he advises, would land himself in midst of
a criminal prosecution on the charge of a conspiracy with his client.
15. Mr. Anoop Trivedi, learned Additional Advocate General, when
confronted with this issue, has not much to say. The informant, that is to
say, the GST Officer, who has been summoned in-person, was asked
about the reason why he nominated the assessee’s learned Advocate in the
F.I.R., for his professional act in filing an appeal, to which he had no
answer. Matters have not stopped at this and we must notice, as we have
already done that after notice was issued in this case, the Police swung
into action and a charge-sheet was promptly cleared and filed in Court, all
in one day, that is to say on 08.05.2026 and an order of cognizance was
also passed the same day by the learned Additional Chief Judicial
Magistrate. This necessitated an amendment of the writ petition, and,
now, the order of cognizance and the charge-sheet are also under
challenge before us.
16. We have heard Mr. Shushil Shukla, learned Senior Advocate, Mr.
Anoop Trivedi, learned Additional Advocate General and Ms. Sadhna
Singh, learned Additional Government Advocate on behalf of the GST.
17. After a careful consideration of the matter, what we find is that the
impugned F.I.R., lodged in this case, which has led to the police report
and the order of cognizance violates all known principles of criminal
liability. An Advocate, by his profession, is authorized to represent his

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client, who may have a case of any kind to be suited in a Court or
defended. An Advocate, by his profession, is authorized to defend men
charged with murders, rape, terror offences and it is his/her duty to defend
them. If, for doing a professional act, like preferring an appeal, an
Advocate is to be held in conspiracy with his client, it would be the end of
the very existence of the Bar and the right of an Advocate to practice
under the Advocates Act. It would, indirectly also, deprive the citizens of
their right to the much valued right to legal assistance, because a person,
who practices the profession of law before defending his client, would be
thinking about his own defence and, this he would be thinking about,
before he files a vakalatnama and takes steps on behalf of his client. This
kind of a situation, which hits as the roots of the principles enshrined
under Articles 14 and 21 of the Constitution, cannot be permitted to
happen. An Advocate has to work fearlessly and discharge his
professional duties, just as an officer of the State is entitled to discharge
his duties.
18. Here, even if the Deputy Commissioner of the GST thinks that pre-
deposit of the disputed tax could not be debited to the Electronic Ledger
out of the Input Tax Credit, the professional decision of the learned
Advocate, to do so, does not, in any way, make him a conspirator with the
assessee. It is purely a professional act and not at all something to do with
his client’s business. It was done in the course of filing an appeal and
nothing more. It was based on a particular view of the law, whether right,
wrong or utterly wrong.
19. In the circumstances, we are of opinion that the impugned F.I.R., the
charge-sheet filed by the Police, on its basis and the order of cognizance

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cannot be sustained. This writ petition succeeds and is allowed . The
impugned F.I.R. dated 04.10.2025 giving rise to Case Crime No. 205 of
2025, under Sections 61(2), 318(4), 336(3), 338, 340(2), BNS, Police
Station- Ganj, District- Rampur, the Charge-sheet No. 45 of 2026 dated
04.04.2026 filed in Court and the cognizance order dated 08.05.2026,
passed by the learned Additional Chief Judicial Magistrate-I, Rampur are
all hereby quashed , in so far as it relates to the petitioner.
20. The learned Chief Judicial Magistrate, Rampur shall cause an entry to
be made in red ink in the General Diary of Police Station Ganj, District
Rampur that the proceedings of Case Crime No. 205 of 2025, under
Sections 61(2), 318(4), 336(3), 338, 340(2) of B.N.S. have been quashed
insofar as it relates to the petitioner, under orders of this Court.
21. Let this order be communicated to the learned Chief Judicial
Magistrate, Rampur and through him to the Superintendent of Police,
Rampur, the Station House Officer, Police Station Ganj, District Rampur
and the Deputy Commissioner, GST, Sector-I, Rampur by the Registrar
(Compliance).
(Tarun Saxena,J.) (J.J. Munir,J.)
May 21, 2026
Abhishek/Prashant
Digitally signed by :-
ABHISHEK SINGH
High Court of Judicature at Allahabad