Case Summary
| Citation | State of Haryana v. Dinesh Kumar (2008) 3 SCC 222 |
| Keywords | |
| Facts | The respondent (Dinesh Kumar) in the first of these two appeals and the appellants (Lalit Kumar and Bhupinder) in the other appeal applied for appointment as Constable-Drivers under the Haryana Police and submitted their respective application forms, which contained two columns, namely, 13(A) and 14, which read as follows: Column 13(A): Have you ever been arrested? Column 14: Have you ever been convicted by the Court of any offence? In both column Dinesh Kumar replied “NO” It was found that case was registered against him and his family members under sections 323, 324 r/w section 34 in 1994 and ultimately, he was acquitted in 1998. He was selected but he was not appointed. The appeal filed by the respondent was rejected by the Director General of Police, Haryana. Reason was given that he did not disclose about his arrest. Dinesh Kumar filed Civil Writ Petition before Punjab and Haryana High Court in 2006. Dinesh Kumar argued that in connection with the aforesaid FIR, he had been granted bail on 17th October, 1994 without having been arrested. Dinesh had not surrendered to the police but had voluntarily appeared before the Magistrate and had prayed for bail and was released on bail, so that as per his understanding, at no point of time was he taken into custody or arrested. High Court came to the conclusion that he had not been arrested. High Court quashed the decision of DGP and directed to take step for appointment. Reason of this decision was following: (1) Dinesh Kumar had been acquitted by lower court. (2) He had been granted bail without arrest. Lalit Kumar and Bhupinder filed writ petition in same Court on the same matter. In a similar case like Dinesh Kumar, they got bail from magistrate before actually get arrested in a criminal case and later acquitted. But in this matter HC didn’t provide any relief. The High Court was of the view that since the writ petitioners had withheld important information it clearly disentitled them to appointment. |
| Issues | Whether the way they had appeared before the Magistrate and had been released without being taken into formal custody, could amount to arrest for the purpose of the query in Column 13A. |
| Contentions | |
| Law Points | The expression arrest or custody has neither been defined in the Code of Criminal Procedure nor in the Indian Penal Code or any other enactment dealing with criminal offences. Sub-sections (1) and (2) of Section 46 of the Code from which this much is clear that in order to make an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be submission to the custody by word or action. Custody and arrest are not synonymous terms and observed that it is true that in every arrest there is a custody but not vice-versa. Custody may amount to arrest in certain cases, but not in all cases. Supreme Court held that the views expressed by the High Court in Dinesh Kumar‘s writ petition regarding arrest were incorrect, while the views expressed in the writ petitions filed by Lalit Kumar and Bhupinder correctly interpreted the meaning of the expressions arrest and custody. |
| Judgement | Supreme Court granted the remedy to Dinesh Kumar, Lalit and Bhupinder on the the ground that as a layman they observed that they had not been arrested. Benefit was given because they did in good faith. |
| Ratio Decidendi & Case Authority |
Full Case Details
ALTAMAS KABIR,J.: These two appeals have been taken up for hearing and disposal
together, in as much as, the issues to be decided in these appeals are common to both, but have
been decided differently by two co-ordinate benches of the same High Court giving rise to a
question of law which is of great public importance. In these appeals we are called upon to
decide what constitutes arrest and custody in relation to a criminal proceeding and the decision
in respect thereof may have a bearing on the fate of the respondent in this appeal and that of the
appellants in the other appeal in relation to their recruitment as Constable-Drivers in the
Haryana Police.
3.The respondent in the first of these two appeals and the appellants in the other appeal applied
for appointment as Constable-Drivers under the Haryana Police and submitted their respective
application forms, which contained two columns, namely, 13(A) and 14, which read as
follows:-
13(A): Have you ever been arrested?
14: Have you ever been convicted by the Court of any offence?
4. As far as the respondent in SLP(C) No. 1840 of 2007, Dinesh Kumar, is concerned, he
answered the said two queries in the negative. Subsequently, during verification of the character
and antecedents of the said respondent, it was reported that he had been arrested in connection
with a case arising out of FIR No. 168 of 13th October, 1994, registered at Kalanaur Police
Station under Sections 323/324/34 Indian Penal Code. He and his family members were
ultimately acquitted of the charges framed against them on 6th January, 1998, by the Judicial
Magistrate, Ist Class, Rohtak. The appellant, however, alleged that the respondent had
concealed these facts from the Selection Committee and had not correctly furnished the
information in columns 13(A) and 14 of the application form submitted by him for recruitment
to the post in question.
5. Since, according to the appellants, the respondent had failed to disclose the aforesaid criminal
case, which had been registered against all his family members, he was not offered any
appointment. The appeal filed by the respondent was rejected by the Director General of Police,
Haryana, by his order dated 18th November, 2005.
6. Before the High Court, it was contended by the respondent that in connection with the
aforesaid FIR No. 168 dated 13th October, 1994, he had been granted bail on 17th October,
1994 without having been arrested. It was, therefore, contended on his behalf that since he had
not been actually arrested and the case against him having ended in acquittal, it must be deemed
that no case had ever been filed against him and hence he had not suppressed any information
by replying in the negative to the questions contained in columns 13(A) and 14.
7. The rejection of the respondent’s claim for appointment as Constable-Driver on the above
mentioned ground was challenged by him before the Punjab and Haryana High Court in Civil
Writ Petition No. 18 of 2006. Taking the view that the appellant had not suppressed any material
while filling up the said columns 13(A) and 14, the High Court quashed the order of rejection
by the Director General of Police, Haryana on 18th November, 2005 and directed the appellants
herein to take steps to issue an appointment letter to the respondent subject to fulfillment of
other conditions by him.
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8. In order to arrive at the aforesaid conclusion, the High Court held that since the petitioner
had been acquitted from the criminal case in question, he had quite truthfully answered the
query in column 14 by stating that he had never been convicted by any Court for any offence.
The High Court also held that even column 13(A) had been correctly answered because the
High Court was of the view that the appellant had never been arrested, though he had obtained
bail in connection with the said case.
9. In the other writ petition filed by Lalit Kumar and Bhupinder, a co-ordinate Bench of the
same High Court took a different view. In the said matter the appellants had been involved in a
criminal case, being FIR No.212 dated 3rd November, 2000, registered at Police Station Sadar,
Narwana, for offences punishable under Sections 148/149/307/325/323 of the Indian Penal
Code, but they had been subsequently acquitted of the said charges on 10th September, 2001.
On behalf of the State, the same stand was taken that the aforesaid piece of information had
been withheld by the writ petitioners while filling column 14 of the application form. The High
Court was of the view that since the writ petitioners had withheld important information it
clearly disentitled them to appointment, as it revealed that they could not be trusted to perform
their duties honestly. The High Court, accordingly, dismissed the writ petitions as being without
merit.
10. In the first of the two appeals, the respondent had not surrendered to the police but had
appeared before the Magistrate with his lawyer of his own volition and was immediately
granted bail. Admittedly, therefore, the respondent had not surrendered to the police but had
voluntarily appeared before the Magistrate and had prayed for bail and was released on bail, so
that as per the respondent’s understanding, at no point of time was he taken into custody or
arrested.
11. As to the second of the two appeals, the appellants in response to the query in column 14,
had quite truthfully answered that they had not been convicted by any Court of any offence,
since they had been acquitted of the charges brought against them. With regard to column
13(A), the appellants who had been implicated in FIR 108 dated 26th May 2002 under Sections
323/324/34 Indian Penal Code of Police Station Nangal Chaudhary, Mahendergarh, appeared
before the Ilaka Magistrate on 7th June, 2002, and were released on their personal bonds
without being placed under arrest or being taken into custody. The information disclosed by
them was held to be suppression of the fact that they had been involved in a criminal case
though the tenor of the query was not to that effect and was confined to the question as to
whether they had been arrested.
12. One of the common questions which, therefore, need to be answered in both these appeals
is whether the manner in which they had appeared before the Magistrate and had been released
without being taken into formal custody, could amount to arrest for the purpose of the query in
Column 13A. As mentioned hereinbefore, the same High Court took two different views of the
matter. While, on the one hand, one bench of the High Court held that since the accused had
neither surrendered nor had been taken into custody, it could not be said that he had actually
been arrested, on the other hand, another bench of the same High Court dismissed similar writ
petitions filed by Lalit Kumar and Bhupinder, without examining the question as to whether
they had actually been arrested or not. The said bench decided the writ petitions against the writ
petitioners upon holding that they had withheld important information regarding their
prosecutions in a criminal case though ultimately they were acquitted.
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13. In order to resolve the controversy that has arisen because of the two divergent views, it
will be necessary to examine the concept of arrest and custody in connection with a criminal
case. The expression arrest has neither been defined in the Code of Criminal Procedure
(hereinafter referred to as the Code) nor in the Indian Penal Code or any other enactment dealing
with criminal offences. The only indication as to what would constitute arrest may perhaps be
found in Section 46 of the Code which reads as follows:-
46. Arrest how made (1) In making an arrest the police officer or other person making the
same shall actually touch or confine the body of the person to be arrested, unless there be a
submission to the custody by word or action.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the
arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused
of an offence punishable with death or with imprisonment for life.
(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before
sunrise, and where such exceptional circumstances exist, the woman police officer shall,
by making a written report, obtain the prior permission of the Judicial Magistrate of the
first class within whose local jurisdiction the offence is committed or the arrest is to be
made.
14. We are concerned with sub-sections (1) and (2) of Section 46 of the Code from which this
much is clear that in order to make an arrest the police officer or other person making the same
shall actually touch or confine the body of the person to be arrested, unless there be submission
to the custody by word or action.
15. Similarly, the expression custody has also not been defined in the Code.
16. The question as to what would constitute arrest and custody has been the subject matter of
decisions of different High Courts, which have been referred to and relied upon by Mr. Patwalia
appearing for Dinesh Kumar, respondent in the first of the two appeals. This Court has also had
occasion to consider the said question in a few cases, which we will refer to shortly. Reliance
was also placed on the dictionary meaning of the two expressions which will also be relevant
to our decision.
17. Mr. Anoop Chaudhary, learned senior advocate, who appeared for the State of Haryana, in
both the appeals, submitted that when the respondent in the first appeal and the appellants in
the second appeal had appeared before the Magistrates and prayed for bail, it must be
understood that they had surrendered to the custody of the court, as otherwise, the provisions
of Section 439 of the Code would not have had application. Mr. Chaudhary also submitted that
it did not matter as to whether the accused persons had been arrested and detained in custody
by the police or not, the very fact that they voluntarily appeared before the Magistrate and
prayed for bail amounted to arrest of their movements, since thereafter they were confined to
the Court room and were no longer free to leave the court premises of their own choice.
18. Mr. Chaudhary submitted that the ordinary dictionary meaning of arrest is to legally restrain
a person’s movements for the purpose of detaining a person in custody by authority of law. He
submitted that in Dinesh Kumar’s writ petition the High Court had erred in coming to a finding
that he had never been arrested since he had voluntarily appeared before the Magistrate and had
been granted bail immediately.
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19. Opposing Mr. Chaudhary’s submission, Mr. Patwalia, relying on various decisions of
different High Courts and in particular a Full Bench decision of the Madras High Court in the
case of Roshan Beevi v. Joint Secretary to the Govt. of Tamil Nadu,[1984 Cr.L.J 134],
submitted that although technically the appearance of the accused before the Magistrate might
amount to surrender to judicial custody, in actuality no attempt had been made by anyone to
restrict the movements of the accused which may have led him to believe that he had never
been arrested. It is on a layman’s understanding of the principle of arrest and custody that
prompted the respondent in the first of the two appeals and the appellants in the second appeal
to mention in column 13(A) that they had never been arrested in connection with any criminal
offence.
20. Mr. Patwalia referred to certain decisions of the Allahabad High Court, the Punjab High
Court and the Madras High Court which apparently supports his submissions. Of the said
decisions, the one in which the meaning of the two expressions arrest and custody have been
considered in detail is that of the Full Bench of the Madras High Court in Roshan Beevi’s case
(supra). The said decision was, however, rendered in the context of Sections 107 and 108 of
the Customs Act, 1962. Sections 107 and 108 of the Customs Act authorises a Customs Officer
empowered in that behalf to require a person to attend before him and produce or deliver
documents relevant to the enquiry or to summon such person whose attendance is considered
necessary for giving evidence or production of a document in connection with any enquiry
being undertaken by such officer under the Act. In such context the Full Bench of the Madras
High Court returned a finding that custody and arrest are not synonymous terms and observed
that it is true that in every arrest there is a custody but not vice-versa. A custody may amount
to arrest in certain cases, but not in all cases. It is in the aforesaid circumstances that the Full
Bench came to the conclusion that a person who is taken by the Customs Officer either for the
purpose of enquiry or interrogation or investigation cannot be held to have come into the
custody and detention of the Customs Officer and he cannot be deemed to have been arrested
from the moment he was taken into custody.
21. In coming to the aforesaid conclusion, the Full Bench had occasion to consider in detail the
meaning of the expression arrest. Reference was made to the definition of arrest in various legal
dictionaries and Halsbury’s Laws of England as also the Corpus Juris Secundum. In
paragraph 16 of the judgment it was observed as follows:
16. From the various definitions which we have extracted above, it is clear that the word
arrest when used in its ordinary and natural sense, means the apprehension or restraint or
the deprivation of one’s personal liberty. The question whether the person is under arrest
or not, depends not on the legality of the arrest, but on whether he has been deprived of his
personal liberty to go where he pleases. When used in the legal sense in the procedure
connected with criminal offences, an arrest consists in the taking into custody of another
person under authority empowered by law, for the purpose of holding or detaining him to
answer a criminal charge or of preventing the commission of a criminal offence. The
essential elements to constitute an arrest in the above sense are that there must be an intent
to arrest under the authority, accompanied by a seizure or detention of the person in the
manner known to law, which is so understood by the person arrested. In this connection, a
debatable question that arises for our consideration is whether the mere taking into custody
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of a person by an authority empowered to arrest would amount to arrest of that person and
whether the terms arrest and custody are synonymous.
22. Faced with the decision of this Court in Niranjan Singh v. Prabhakar (AIR 1980 SC 785)
the Full Bench distinguished the same on an observation made by this Court that equivocatory
quibbling that the police have taken a man into informal custody but have not arrested him,
have detained him in interrogation but have not taken him into formal custody, were unfair
evasion of the straightforwardness of the law. This Court went on to observe further that there
was no necessity of dilating on the shady facet as the Court was satisfied that the accused had
physically submitted before the Sessions Judge giving rise to the jurisdiction to grant bail.
Taking refuge in the said observation, the Full Bench observed that the decision rendered by
this Court could not be availed of by the learned counsel in support of his contentions that the
mere taking of a person into custody would amount to arrest. The Full Bench observed that
mere summoning of a person during an enquiry under the Customs Act did not amount to arrest
so as to attract the provisions of Article 22(2) of the Constitution of India and the stand taken
that the persons arrested under the Customs Act should be produced before a Magistrate without
unnecessary delay from the moment the arrest is effected, had to fail.
23. We are unable to appreciate the views of the Full Bench of the Madras High Court and
reiterate the decision of this Court in Niranjan Singh case. In our view, the law relating to the
concept of arrest or custody has been correctly stated in Niranjan Singh case (supra).
Paragraphs 7, 8 and the relevant portion of paragraph 9 of the decision in the said case states as
follows:-
7. When is a person in custody, within the meaning of Section 439 Cr. P.C.? 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 dubiotics
are unfair evasion 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 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 order of the court.
9. He can be in custody not merely when the police arrest him, produces him before a
Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial
custody when he surrenders before the court and submits to its directions Sections 107 and
108 of the Customs Act do not contemplate immediate arrest of a person being summoned
in connection with an enquiry, but only contemplates surrendering to the custody of the
Customs Officer which could subsequently lead to arrest and detention.
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24. We also agree with Mr. Anoop Chaudhary’s submission that unless a person accused of an
offence is in custody, he cannot move the Court for bail under Section 439 of the Code, which
provides for release on bail of any person accused of an offence and in custody. The precondition, therefore, to applying the provisions of Section 439 of the Code is that a person who
is an accused must be in custody and his movements must have been restricted before he can
move for bail. This aspect of the matter was considered in Niranjan Singh case where it was
held that a person can be stated to be in judicial custody when he surrenders before the Court
and submits to its directions.
25. It is no doubt true that in the instant case the accused persons had appeared before the
concerned Magistrates with their learned advocates and on applying for bail were granted bail
without being taken into formal custody, which appears to have swayed one of the benches of
the Punjab and Haryana High Court to take a liberal view and to hold that no arrest had actually
been effected. The said view, in our opinion, is incorrect as it goes against the very grain of
Sections 46 and 439 of the Code. The interpretation of arrest and custody rendered by the Full
Bench in Roshan Beevi case (supra) may be relevant in the context of Sections 107 and 108 of
the Customs Act where summons in respect of an enquiry may amount to custody but not to
arrest, but such custody could subsequently materialize into arrest. The position is different as
far as proceedings in the court are concerned in relation to enquiry into offences under the
Indian Penal Code and other criminal enactments. In the latter set of cases, in order to obtain
the benefit of bail an accused has to surrender to the custody of the Court or the police
authorities before he can be granted the benefit thereunder. In Vol.11 of the 4th Edition of
Halsbury’s Laws of England the term arrest has been defined in paragraph 99 in the following
terms:-
99 Meaning of arrest. Arrest consists in the seizure or touching of a person’s body with a
view to his restraint; words may, however, amount to an arrest if, in the circumstances of
the case, they are calculated to bring, and do bring, to a person’s notice that he is under
compulsion and he thereafter submits to the compulsion.
26. The aforesaid definition is similar in spirit to what is incorporated in Section 46 of the Code
of Criminal Procedure. The concept was expanded by this Court in State of Uttar Pradesh v.
Deomen [AIR 1960 SC 1125] wherein it was inter alia observed as follows:-
Section 46, Cr.P.C. does not contemplate any formality before a person can be said to be
taken in custody. Submission to the custody by words of mouth or action by a person is
sufficient. A person directly giving a police officer by word of mouth information which
may be used as evidence against him may be deemed to have submitted himself to the
custody of the Police Officer.
27. The sequatur of the above is that when a person, who is not in custody, approaches the
police officer and provides information, which leads to the discovery of a fact, which could be
used against him, it would be deemed that he had surrendered to the authority of the
investigating agency.
28. It must, therefore, be held that the views expressed by the High Court in Dinesh Kumar’s
writ petition regarding arrest were incorrect, while the views expressed in the writ petitions
filed by Lalit Kumar and Bhupinder correctly interpreted the meaning of the expressions arrest
and custody. However, how far the same would apply in the ultimate analysis relating to the
filling up of column 13(A) is another matter altogether.
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29. In our view, the reasoning given in Dinesh Kumar case in that context is a possible view
and does not call for interference under Article 136 of the Constitution. Conversely, the decision
rendered in the writ petitions filed by Lalit Kumar and Bhupinder has to be reversed to be in
line with the decision in Dinesh Kumar case. When the question as to what constitutes arrest
has for long engaged the attention of different High Courts as also this Court, it may not be
altogether unreasonable to expect a layman to construe that he had never been arrested on his
appearing before the Court and being granted bail immediately. The position would have been
different, had the person concerned not been released on bail. We would, in the facts of these
cases, give the benefit of a mistaken impression, rather than that of deliberate and wilful
misrepresentation and concealment of facts, to the appellants in the second of the two appeals
as well, while affirming the view taken by the High Court in Dinesh Kumar case.
30. Accordingly, although, we are of the view that the legal position as to what constitutes arrest
was correctly stated in the writ petitions filed by Lalit Kumar and Bhupinder, we confirm the
order passed in Dinesh Kumar case and extend the same benefit to Lalit Kumar and Bhupinder
also.
31. In the result, the Civil Appeal arising out of SLP(C) No. 1840 of 2007 is dismissed, while
the Civil Appeal arising out of SLP(C) No.14939 of 2007 is allowed. The judgment of the High
Court dated 22nd September, 2005, impugned in the said appeal, is set aside and the concerned
respondents are directed to take steps to issue appointment letters to the appellants in the said
appeals subject to fulfillment of other conditions by them. It is also made clear that the
appellants will be deemed to have been appointed as Constable-Drivers with effect from the
date, persons lower in merit to them were appointed. However, while they will be entitled to
the notional benefits of such continuous appointment, they will be entitled to salary only from
the date of this judgment on the basis of such notional benefits.
32. The appeals are disposed of accordingly.
