Case Summary: State of Haryana v. Dinesh Kumar | Criminal Law | Cr.P.C.

 Case Citation : (2008) 3 SCC 222

Bench: Altamas Kabir. J

Facts of the case:

1. 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?

Respondent answered the both questions as negative.

2. 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. However, he was aquitted in that matter by judicial magistrate.

3. 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. Hence, as a result respondent was not offered the job.

Contentions of Respondent:

Respondent contended that he had been granted bail 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.

High Court:

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.

High Court 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.

HC sid that as per question 13A is considered he was never arrested as there was a bail order taken by him. As well as for question 14 he was never convicted too.

In a similar case where writ petition was filed by lalit kumar and bhupinder singh HC took a separate view of the case. 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.

The key difference between the first and second appeal was that in first appeal case appellant produced himself before magistrate and took a bail which was granted to him pre arrest and in second appeal case appellant was released on their personal bonds without being placed under arrest or being taken into custody.

Supreme Court Observation and judgement:

In order to resolve this controversy, Court examine the concept of arrest and custody in connection with the criminal case.

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 thefirst class within whose local jurisdiction the offence is committed or the arrest is to be made.

Legal Issue: what would constitute arrest

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 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 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.

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

Rationale: Court held that in case of civil case it would amount to custody not arrest which could be further materialized into arrest and in criiminal 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.

 Final JUDGEMENT:

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.

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