Release on interim bail cannot be treated as constructive custody: Allahabad HC

Read Order: VISHAL GUPTA vs. UNION OF INDIA AND ANOTHER

Pankaj Bajpai

Prayagraj, October 19, 2021: The Allahabad High Court has opined that when the petitioner (Vishal Gupta) 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. 

Submission of petitioner was that although he had 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.

It was his further submission that since complete charge sheet has not been filed by the Investigating Officer in the matter, so he would be entitled to default bail. 

The Bench of Justice Anil Kumar Ojha, however dismissed the petition on ground of lack of merit, stating that when the movement of petitioner was not restricted as per directions of the Court, he cannot be treated in constructive custody. 

“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”, observed the HC. 

If a person who has been released on bail is treated in custody, then it will be a mockery of justice, added the Court. 

Justice Ojha further observed that bail always presupposes custody and can be granted only when a person is detained. 

Admittedly, petitioner was arrested on January 28, 2021, charge sheet was submitted on March 26, 2021 and he was released on interim bail on May 26, 2021, added Justice Ojha.

The High Court stated that 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. 

However, merely, on account of averments made, it cannot be said that incomplete charge sheet has been submitted by prosecuting agency, added the Single Judge.