The Allahabad High Court while refusing the bail to a person accused of Wrongful Availment of Input Tax Credit (ITC) held that interim Bail cannot be treated as constructive custody.
Advocate Nipun Singh, the counsel for the petitioner, Vishal Gupta contended that although the petitioner has been released on interim bail in compliance with directions issued by the High Power Committee, he shall be deemed to be in constructive custody of the Court. The complete charge sheet has not been filed by the investigating officer in the matter, so the petitioner is entitled to default bail. The petitioner should be granted default bail on account of filing an incomplete charge sheet.
On the other hand, the respondent authority vehemently opposed the submission and contended that the petitioner cannot be treated in constructive custody because he is already on interim bail. Further submitted that the department can file additional evidence any time after submission of the charge sheet.
The single-judge bench of Justice Anil Kumar Ojha observed 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 surrenders before the court and submits to its directions.
“As the petitioner has been released on interim bail, he cannot be treated in constructive custody, as his movements are not restricted as per directions of the Court,” the court while dismissing the petition said.
The court added that in case, after submission of a charge sheet, or during the trial any evidence comes to light, it can be filed in Court to do justice between the parties. It cannot be said that an incomplete charge sheet has been submitted by the prosecuting agency.
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