Allahabad HC: For the purposes of bail, petitioner cannot be treated in constructive custody

Vishal Gupta Vs. Union of India & Anr.(Allahabad High Court); W.P. 4968/2021; 05.10.2021

Facts and Issue:

• A case was lodged under Section 132(1) (b)(c) and (1)(i) of C.G.S.T. Act, 2017, D.G.G.I., Department, Meerut against the petitioner Vishal Gupta.
• The petitioner was arrested in the aforesaid case on 28.01.2021, charge sheet was filed on 26.03.2021, same day cognizance was taken by the concerned Magistrate. Thereafter, in pursuance of guidelines issue by High Power Committed constituted by Hon’ble Apex Court in Suo Moto Writ Petition (c) No. 01/2020 IN RE: Contagion of Covid-19 in prisons, petitioner was released on interim bail on 26.05.2021. The maximum punishment against the offence is five years.
• Criminal revision was filed by the petitioner against the cognizance order dated 26.03.2021. In the memo of revision, one more relief was prayed to consider the default bail application afresh.
• The aforesaid Revision was allowed. However, since the investigation is still continuing as has been disclosed in the complaint/ charge sheet itself, hence it is provided that as soon as it is completed and filed before the learned Special Chief Judicial Magistrate, he shall be at liberty to take cognizance thereon in accordance with law. The learned Court below is directed to consider default bail application of the revisionist in light of observation made in the body of this judgment.
• In compliance of aforesaid order dated 31.08.2021 passed by Sessions Judge, an application was moved before learned Special C.J.M. Meerut for default bail. Learned Special C.J.M. rejected this second default bail application on the ground that petitioner is not in custody as he was released on interim bail in compliance of the direction issued by High Power Committee.
• Present petition has been filed for issuing an order or direction to call for the records and set aside the impugned order dated 16.09.2021 passed by the learned Special Chief Judicial Magistrate, Meerut in Case No. 4830/2021, under Section 132(1)(b)(c) and 1(i) of C.G.S.T. Act, 2017, D.G.G.I. Department, Meerut.
• The Petitioner contends that although petitioner has been released on interim bail in compliance of directions issued by High Power Committee but he shall be deemed to be in constructive custody of the Court. Further, complete charge sheet has not been filed by the investigating officer in the matter, so petitioner is entitled to default bail.

Observations:

• The Ld. Single judge noted that the word ‘custody’ has not been defined in the Criminal Procedure Code. Therefore relied on the judgment of Hon’ble Apex Court in Sundeep Kumar Bafna v. State of Maharashtra & anr. (2014) 16 SCC 623 and concluded as under:

Custody means when a police officer arrests a person, produces him before the Magistrate and gets a remand to judicial or other custody, he can be stated in judicial custody when he surrender before the court and submits to its directions. As petitioner has been released on interim bail, so he cannot be treated in constructive custody, as his movements are not restricted as per directions of the Court.

Held:

The Ld. Single Judge was unable to agree with the submission of the learned counsel for the petitioner that the petitioner despite being on interim bail shall be treated in constructive custody of the court. The Court was of the firm opinion that for the purposes of bail, petitioner cannot be treated in constructive custody. Therefore, the petition was dismissed devoid of merit.

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