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CASE NO.: Appeal (civil)  84 of 2008

PETITIONER: State of Haryana & Ors.

RESPONDENT: Dinesh Kumar

DATE OF JUDGMENT: 08/01/2008

BENCH: C.K. Thakker & Altamas Kabir

JUDGMENT: J U D G M E N T (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 \023arrest\024 and  \023custody\024 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

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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\022s 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

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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\022s 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 \023arrest\024 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 \023arrest\024 and \023custody\024 in  connection with a criminal case.  The expression  \023arrest\024 has neither been defined in the Code of  Criminal Procedure (hereinafter referred to as the  \021Code\022) nor in the Indian Penal Code or any other  enactment dealing with criminal offences.   The only  indication as to what would constitute \023arrest\024 may  perhaps be found in Section 46 of the Code which reads  as follows:- \023Arrest how made \026 (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

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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.}\024

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 \023custody\024 has also not  been defined in the Code.   

16. The question as to what would constitute \023arrest\024 and \023custody\024 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 \023arrest\024 is to legally restrain  a person\022s movements for the purpose of detaining a  person in custody by authority of law.  He submitted

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that in Dinesh Kumar\022s 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. Chaudhary\022s 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  Anr. Vs. Joint Secretary to the Govt. of Tamil Nadu  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 layman\022s  understanding of the principle of \023arrest\024 and  \023custody\024 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 \023arrest\024 and  \023custody\024 have been considered in detail is that of  the Full Bench of the Madras High Court in Roshan  Beevi\022s 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 \023custody\024 and \023arrest\024 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 \023arrest\024 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 \023arrest\024.  Reference was made to the  definition of arrest in various legal dictionaries and  Halsbury\022s Laws of England as also the Corpus Juris  Secondum. In paragraph 16 of the judgment it was  observed as follows: \02316.  From the various definitions which we have  extracted above, it is clear that the word  \021arrest\022 when used in its ordinary and natural  sense, means the apprehension or restraint or the

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deprivation of one\022s 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 \021arrest\022 of that person  and whether the terms \021arrest\022 and \021custody\022 are  synonymous.\024

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 Singh\022s case  (supra). In our view, the law relating to the concept  of \023arrest\024 or \023custody\024 has been correctly stated in  Niranjan Singh\022s case (supra).  Paragraphs 7, 8 and  the relevant portion of paragraph 9 of the decision in  the said case states as follows:-        \0237. 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 court\022s jurisdiction and

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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...................\024  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 Chaudhary\022s  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\022s 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 \023arrest\024 and \023custody\024 rendered by  the Full Bench in Roshan Beevi\022s case (supra) may be  relevant in the context of Sections 107 and 108 of the

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Customs Act where summons in respect of an enquiry may  amount to \023custody\024 but not to \023arrest\024, 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\022s  \023Laws of England\024 the term \023arrest\024 has been defined  in paragraph 99 in the following terms:-    

\02399 Meaning of arrest. Arrest consists in the  seizure or touching of a person\022s 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\022s notice that he is under compulsion  and he thereafter submits to the compulsion.\024

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:-  \023Section 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.\024

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\022s 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 \023arrest\024 and \023custody\024. 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\022s 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\022s case.  When the question as  to what constitutes \023arrest\024 has for long engaged the  attention of different High Courts as also this Court,

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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\022s 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\022s 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.