2021 (10) TMI 634 - HC - GST

Grant of default bail - constructive custody or not - complete charge sheet has not been filed by the investigating officer in the matter - submission of petitioner is 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 - HELD THAT - 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 - If a person who has been released on bail is treated in custody, then it will be mockery of justice. Bail always presupposes custody. Bail can be granted only when a person is detained. The submission of the petitioner that the petitioner despite being on interim bail shall be treated in constructive custody of the court, cannot be agreed upon. For the purposes of bail, petitioner cannot be treated in constructive custody. Grant of default bail - filing of incomplete charge sheet - HELD THAT - It is admitted position of the parties, petitioner was arrested on 28.01.2021, charge sheet was submitted on 26.03.2021 and he was released on interim bail on 26.05.2021 - In case, after submission of charge sheet, or during trial any evidence comes in light, it can be filed in Court to do justice between the parties. Merely, on account of averments made in para 13, it cannot be said that incomplete charge sheet has been submitted by the prosecuting agency. Petition dismissed.

Summary

Issues:
1. Petitioner's request to set aside the impugned order dated 16.09.2021 passed by the Special Chief Judicial Magistrate.
2. Petitioner's plea for default bail and constructive custody status.

Analysis:

Issue 1:
The petitioner sought an order to revoke the order passed by the Special Chief Judicial Magistrate in Case No. 4830/2021 under Sections 132(1)(b)(c) and 1(i) of the C.G.S.T. Act, 2017. The petitioner, Vishal Gupta, was arrested on 28.01.2021 in this case, and a charge sheet was filed on 26.03.2021, with cognizance taken the same day. Following the High Power Committee's guidelines due to the COVID-19 situation, the petitioner was granted interim bail on 26.05.2021. The petitioner filed a criminal revision against the cognizance order, seeking reconsideration of the default bail application. The Sessions Judge allowed the revision and set aside the earlier order, directing the consideration of default bail application upon completion of the investigation. Subsequently, the petitioner applied for default bail, which was rejected by the Special C.J.M. Meerut on the grounds that the petitioner was on interim bail and not in custody.

Issue 2:
The petitioner contended that despite being on interim bail, he should be deemed in constructive custody of the court and thus eligible for default bail. However, the respondent argued against this, stating that the petitioner, being on interim bail, cannot be considered in custody. The court referred to the definition of custody as per legal precedents and concluded that custody entails physical control or presence before the court, which the petitioner, released on interim bail, did not fulfill. Granting bail presupposes custody, and treating a person on bail as in custody would undermine the purpose of bail. Additionally, the petitioner's claim for default bail due to an incomplete charge sheet was dismissed. The charge sheet indicated the gravity of the offenses committed by the petitioner under the CGST Act, and the possibility of additional evidence being presented during trial was acknowledged. The court rejected the petitioner's reliance on previous judgments, finding them inapplicable to the current case.

In conclusion, the court dismissed the petition, ruling against the petitioner's claims for setting aside the impugned order and being granted default bail, emphasizing that the petitioner, on interim bail, cannot be deemed in constructive custody for the purpose of bail.