Case Law Details

Case Name : Vishal Gupta Vs Union Of India And Another (Allahabad High Court)
Appeal Number : Matters Under Article 227 No. 4968 of 2021
Date of Judgement/Order : 05/10/2021
Related Assessment Year :

Vishal Gupta Vs Union Of India And Another (Allahabad High Court)

Submission of the learned counsel for the 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. The second submission of the learned counsel for the petitioner is that complete charge sheet has not been filed by the investigating officer in the matter, so petitioner is entitled to default bail.

Per contra, learned counsel for respondent vehemently opposed the aforesaid submission and contended that the petitioner cannot be treated in constructive custody because he is already on interim bail. Further submitted that department can file additional evidence any time after submission of charge sheet under Section 173(8) Cr.P.C.

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The word ‘custody’ has not been defined in the Criminal Procedure Code. In Sundeep Kumar Bafna v. State of Maharashtra & anr. (2014) 16 SCC 623, Hon’ble Apex Court has referred several other authorites and held as under:

“7. When is a person in custody, within the meaning of Section 439 CrPC? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court’s jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.

8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.

Thus, 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.

In view of the above, I am 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. I am of the firm opinion that for the purposes of bail, petitioner cannot be treated in constructive custody.

FULL TEXT OF THE JUDGMENT/ORDER of ALLAHABAD HIGH COURT

Heard Sri Anurag Khanna, learned Senior Counsel assisted by Sri Nipun Singh, learned counsel for the petitioner, Sri Anant Kumar Tiwari, Sri Dileep Chandra Mathur, learned counsel for opposite party no. 2, learned A.G.A. for the State and perused the record.

The petitioner has made the following prayer:

(1) issue 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;

(II) issue an order or direction, directing the respondents not to taken any coercive steps against the petitioner and the default bail may be granted or in alternative this Hon’ble Court may be pleased to direct the court below to decide the petitioner’s default bail application afresh treating the petitioner in the constructive custody of court since 28.01.2021.

Tersely put, a case was lodged bearing No. 4830 of 2021, 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 28.01.202 1, charge sheet was filed on 26.03.202 1, 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 26.05.202 1. The maximum punishment against the offence is five years.

Criminal revision was filed by the petitioner against the cognizance order dated 26.03.202 1. In the memo of revision, one more relief was prayed to consider the default bail application afresh. The aforesaid revision 137 of 2021 was decided by learned Sessions Judge, Meerut on 31.08.2021 and passed the following

order:

“Revision is allowed. Impugned order dated 26.03.2021 passed by learned Special Chief Judicial Magistrate, Meerut in Complaint No. 4830 of 2021, styled as Directorate General of Goods & Service tax Inteligence, Zonal unit, Meerut v. Vishal Gupta is set aside. 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.

Submission of the learned counsel for the 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. The second submission of the learned counsel for the petitioner is that complete charge sheet has not been filed by the investigating officer in the matter, so petitioner is entitled to default bail.

Per contra, learned counsel for respondent vehemently opposed the aforesaid submission and contended that the petitioner cannot be treated in constructive custody because he is already on interim bail. Further submitted that department can file additional evidence any time after submission of charge sheet under Section 173(8) Cr.P.C.

The word ‘custody’ has not been defined in the Criminal Procedure Code. In Sundeep Kumar Bafna v. State of Maharashtra & anr. (2014) 16 SCC 623, Hon’ble Apex Court has referred several other authorites and held as under:

“7. When is a person in custody, within the meaning of Section 439 CrPC? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court’s jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.

8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.

Thus, 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.

In view of the above, I am 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. I am of the firm opinion that for the purposes of bail, petitioner cannot be treated in constructive custody.

The second submission of the learned counsel for the petitioner is that petitioner should be granted default bail on account of filing of incomplete charge sheet. 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. Copy of charge sheet has been filed with the petition which is at page 56 to 78 of the paper book, relevant portion of the aforesaid charge sheet is quoted herein below:

“14. From the aforesaid facts, it is apparently clear that on account of receipt of fake tax invoices without actual receipt of goods leading to fraudulent availment and passing on of fake input tax credit to the tune of Rs. 17.98 Crore and Rs. 14.92 Crore respectively, being more than 5 Crore, the availment of ITC from the non-existent/fake entities without any purchases and utilization thereon by passing on to various ultimate business buyers by tax invoices without actual supply of goods, Shri. Vishal Gupta has committed offences punishable under Section 132(1)(b) and (c) of the CGST Act, 2017 and punishable under clause (i) of Section 132(1) being a cognizable and non-bailable offence with imprisonment for a term which may extend to five years and with fine. Taking cognizance of his offence Shri Vishal Gupta was arrested on 28.01 .2021 under Section 69 of the CGST Act, 2017 and produced before the Ld. Court of Spl. CJM, Meerut on 28.01 .2021.

15. The Guilt of the accused person may be established on the basis of the documents, case property and oral testimony of the witnesses to be produced during the trial.

Therefore, it is prayed that Ld. Spl. CJM may be pleased to take cognizance of offence to stand trial of accused and to punish him in accordance with the law.”

Learned counsel for the petitioner drew the attention of the Court towards para 13 which is quoted herein below:

“13. Since the oral evidence of certain persons is yet to come on record as they have not turned up before the investigating officers till date and the documentary evidences too yet to be submitted in this case by the persons/entities concerned, the department reserves the right to file additional/supplementary complaint in this case, if any new evidence emerges against the accused during further investigation.”

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.

Learned counsel for the petitioner relied upon Sunil Dutt v. State of U.P. and another, Criminal Misc. Bail Application No. 465551 of 2020 passed by this High Court; Ranveer Singh @ Ranbir Singh v. State of U.P. and another, Criminal Misc. Bail Application No. 12715 of 2020, passed by this High Court; and Dhirendra @ Dheeraj Tyagi v. State of U.P., Criminal Misc. Bail Application No. 23639 of 2018 passed by this High Court. I have gone through the authorities, no relief can be granted to the petitioner on the basis of these authorities as the facts of the present case are totally different from them.

In view of the above, petition lacks merit and is liable to be dismissed. Accordingly, this petition is dismissed.

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