STATE OF HARYANA & ORS. v. DINESH KUMAR

Citation: [2008] 1 S.C.R. 281

Court: Supreme Court of India

Bench: C.K. THAKKER, ALTAMAS KABIR

Case summary

STATE OF HARYANA & ORS. v. DINESH KUMAR.pdf

Judgment text

[2008] 1S. C. R. 281 STATE OF HARYANA & ORS. -, v. DINESH KUMAR (C. A. No. 84 of 2008) JANUARY 8, 2008 8 (C. K. THAKKER AND ALTAMAS KABIR, JJ. ) Code of Criminal Procedure, 1973: ss.

46 and· 439 - Expressions 'arrest' and 'custody' - Connotation of - Persons appearing before Magistrate released on bail/personal bond without being taken into formal custody - HELD: A person can be stated to be in judicial custody when he 'Surrenders before the Coult and submits to its directions - When a person who is not in custody, approaches a police officer and provides information, which leads to discovery of a fact, which could be used against him, it would be deemed that he has surrendered to the authority of investigating agency Service Law: Appointment - Recruitment to police constable-drivers - Application form - Query in, as to arrest of applicant - Answered in negative - Later it was found that applicant was released on bail/personal bond in respect of a criminal case - Appointment denied for suppression of material fact - Held: Though the applicant-accused appeared before the Magistrate and on his application he was granted bail without being taken into formal custody, it cannot be said that no arrest had actually been effected - However, on facts of the case, the benefit of mistaken impression would be given to applicant rather than treating it a case of deliberate and willful misrepresentation and concealment of facts - Authorities directed to give appointment letters to candidates concerned - Constitution of India - Arlicle 136.

l 281 The respondent in C. A. No. 84 of 2008 and the appellant in C. A. No. 85 of 2008 applied for appointment as Constable-Drivers in the Haryana Police. In answer to the queries as to whether the applicant was ever arrested and as to whether he was ever convicted by the Court of any offence, as asked in columns 13(A) and 14, respectively, of the application form, the applicants answered in the negative. Subsequently, during verification of character and antecedents of the applicants it was reported that they had been arrested in connection with different FIRs registered ·against them, though subsequently both were acquitted of the charges framed against them. The Department being of the view that the applicants concealed material facts from the Selection Committee and did not correctly furnish the information required in columns 13(A) and 14 of the applications 0 submitted by them for recruitment to the post, declined the appointment.

The appeals having been rejected by the Director General of Police, the candidates filed separate writ petitions at different times which came to be listed before two separate Benches of the High Court. The contention of the candidates in both the writ petitions was that they were granted bail/released on personal bond, without having been arrested, and since they were never actually arrested and the case against them having ended in acquittal, it would be deemed that no case was ever filed against them and, therefore, they did not suppress any information by replying in the negative to the queries contained in columns 13(A) and 14 of the application form. The Bench hearing the writ petition filed by the respondent in C. A. No. 84 of 2008 accepted the contention of the writ petitioner therein and allowed the writ petition, whereas the Bench hearing the writ petition of the appellants in C. A. No. 85 of 2008 took a contrary view and dismissed the writ petition.

The two judgments were challenged in the instant appeals. The question for consideration before the Court -'. ? was: whether the manner in which the applicants appeared before the Magistrate and were released without being taken into formal custody, could amount to arrest for the purpose of the query in column 13A of the application form? Answering the question in the affirmative and disposing of the appeals, the Court -. ( HELD: 1. 1. The expression "arrest" has neither been defined in the Code of Criminal Procedure nor in the Penal Code or any other enactment dealing with criminal offences. Similarly, the expression "custody" has also not been defined in the Code. However, in view of subsections (1) and (2) of Section 46 of the Code, it 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.

[para 13,14 and 15) [289-F, G; 290-E, F] 1. 2 As regards the law relating to the concept of "arrest" or "custody" this Court in Niranjan Singh's case* has held that a person can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. 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 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. "' [para 23, 24) [294-B; 295-A, C, DJ ~ *Niranjan Singh vs. Prabhakar AIR 1980 s·c 785relied on. 1.

3 It is no doubt true that, in the instant, case the accused persons appeared before the Magistrates concerned with their advocates and on applying for bail were granted bail without being taken into formal custody, which fact appears to have swayed one of the benches of the High Court to take a liberal view and to hold that no arrest had actually been effected. The said view, is incorrect as it goes against the very grain of Sections 46 and 439 of the Code. [para 25] [295-E, F, G] Roshan Beevi and Anr. Vs. Joint Secretary to the Govt. of Tamil Nadu and Ors. 1984 Criminal Law Journal 134 distinguished. 1. 4 The definition of 'arrest' as given in Halsbury's Law of England is similar in spirit to what is incorporated in s. 46 of the Code of Criminal Procedure. The concept was expanded by this Court in State of Uttar Pradesh vs.

Deomen*, the sequatur whereof 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. [para 25,27] [296-B, D, F, G] *State of Uttar Pradesh vs. Deomen AIR 1960 SC 1125 - relied on. Hafsbury's "Laws of England" 4th Edition Vol. 11 referred to. 1. 5 Therefore, High Court in the writ petition of the respondent in C. A. No. 84 of 2008 erred in its conclusion, regarding 'arrest', while the views expressed in the other writ petition correctly interpreted the meaning of the > expressions "arrest" and "custody". [para 28) [296-G, H; 297-A] 2. 1 However, the reasoning given in the judgment under appeal in C. A. No. 85 of 2008 in the context is a possible view and does not call for interference under Article 136 of the Constitution.

Conversely, the decision ~ > rendered in the other writ petition has to be reversed to be in line with the former 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. Therefore, in the facts of these cases, the benefit of a -( mistaken impression would be given to the applicants, rather than treating it as a case of deliberate and wilful misrepresentation and concealment of facts. [para 29] [297-8, C, DJ 2. 2 The Judgment of the High Court impugned in the C. Appeal No. 85 of 2008 is set aside and the authorities are directed to take steps to issue appointment letters to the appellants in the said appeals subject to fulfillment of o 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. [para 31] (297-G; 298-A] CIVILAPPELLATE JURISDICTION: Civil Appeal No. 84 of 2008. ~ From the Judgment and final Order dated 1. 8. 2006 of the High Court of Punjab and Haryana at Chandigarh in C. W. P. No. 18/2006. WITH C. A. No. 85 of 2008 ~ Anoop G. Chaudhary, Marijeet Singh, Roopansh Purohit, Devendra Kumar Singh, TV. George, Ved Prakash Singh, Ramesh Kuamr Shokeen,and Kamal Mohan Gupta for the Appellants. framed against them on 5th January, 1998, by the Judicial Magistrate, 1st 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 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 1 of rejection by the Director General of Police, Haryana on 18 November, 2005 and directed the appellants herein to take steps to issue an appointment lett~r 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 r- ' 324/34 Indian Penal Code of Police Station Nangal Chaudhary, Mahendergarh, appeared before the llaka 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 . 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 o~ly contemplates surrendering to the custody of the Customs Officer which could subsequently lead to arrest and detention. 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 (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 Singh's 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'scase (supra) may be relevant in the context of Sections 107 and 108 of the Customs Act where summotls 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; wor9s 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 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 peirson 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. 29. In our view, the reasoning given in Dinesh Kumar's 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's 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's 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's 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 -..

_J 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. R. P. Appeals disposed of.