State
of Haryana & Ors. Vs. Dinesh Kumar [2008] Insc 23 (8 January 2008)
C.K.
Thakker & Altamas Kabir
(Arising
out of SLP(C) No.1840 of 2007 With Civil Appeal No. 85 of 2008 (Arising out of
SLP(C) No.14939) Altamas Kabir,J.
1.
Leave granted.
2.
These two appeals have been taken up for hearing and disposal together,
inasmuch 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 fai1ed 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 respondents 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.
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
respondents 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.
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:- 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 persons movements for the
purpose of detaining a person in custody by authority of law. He submitted that
in Dinesh Kumars 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.
19.
Opposing Mr. Chaudharys 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 and and Ors. (1984 Criminal
Law Journal 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 laymans 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 Beevis
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 Halsburys Laws
of England as also the Corpus Juris Secondum. 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 ones 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 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 vs. 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 Singhs case (supra).
In our view, the law relating to the concept of arrest or
custody has been correctly stated in Niranjan Singhs 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 S. 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 courts 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 S.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 S.439, (we are not, be noted, dealing with anticipatory
bail under Se.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.
24. We
also agree with Mr. Anoop Chaudharys 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 (Emphasis supplied). The pre-condition,
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 Singhs 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 Beevis 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 Halsburys 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 persons
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 persons 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 vs. Deomen (AIR 1960 SC 1125) wherein it was interalia
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
Kumars 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.
29. In
our view, the reasoning given in Dinesh Kumars 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
Kumars 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
Kumars 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 Kumars 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.
33. In
the peculiar facts of the case, the parties will bear their own costs.
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