HC rejects bail application of petitioner who was not in custody & already released on interim bail

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  • Last Updated on 6 January, 2022

Bail; Anticipatory Bail; GST Input tax credit fradulently availed

Case Details: Vishal Gupta v. Union of India - [2021] 133 taxmann.com 298 (Allahabad)

Judiciary and Counsel Details

    • Anil Kumar Ojha, J.
    • Nipun Singh, Sr. Adv. for the Petitioner.
    • Anant Kumar Tiwari and Dileep Chandra Mathur for the Respondent.

Facts of the Case

The assessee was arrested on allegation that he had availed fake input tax credit to tune of Rs. 32 crores. The charge-sheet against assessee was filed on 26-3-2021 and on same day cognizance was taken by Judicial Authority. Thereafter in pursuance of guidelines issued by High Power Committee, the assessee was released on interim bail on 26-5-2021. Later on assessee moved an application for default bail before Chief Judicial Magistrate. The Chief Judicial Magistrate rejected default bail application on ground that assessee was not in custody. It filed petition before the High Court seeking bail.

High Court Held

The Honorable High Court 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. In the instant case, the 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. The bail always presupposes custody and can be granted only when a person is detained. Therefore, it was held that petition filed by assessee lacked merit and required to be dismissed.

Case Review

    • Sunil Dutt v. State of U.P. [Crl. Misc. Bail Application No. 465551 of 2020 (para 15);
    • Ranveer Singh v. State of U.P [Crl. Misc. Bail Application No. 12715 of 2020] (para 15)
    • Dherendra v. State of U.P. [Crl. Bail Application No. 23639 of 2018] (para 15) distinguished.

List of Cases Referred to

    • Contagion of Covid-19 in Prisons, In re [2020] 118 taxmann.com 220 (SC) (para 3)
    • Sundeep Kumar Bafna v. State of Maharashtra [2014] 16 SCC 623 (para 8)
    • Sunil Dutt. v. State of U.P [Criminal Misc. Bail Application No. 465551 of 2020, dated 2-3-2021] (para 15)
    • Ranveer Singh @ Ranbir Singh v. State of U.P. [Criminal Misc. Bail Application No. 12715 of 2015, date 21-10-2020] (para 15)
    • Dhirendra @ Dheeraj Tyagi v. State of U.P. [Criminal Misc. Bail Application No. 23639 of 2018] (para 15).

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