Criminal Procedure Code, 1973: Section 46, Leading Caselaw (State of Haryana v. Dinesh Kumar)

Facts:

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?

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 but he and his family were acquitted and he had been granted bail without having been arrested.  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. Therefore, he was not offered any appointment.

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.

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, but they had been subsequently acquitted. 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. 

Hence, the appeal is filed before the supreme court.

Issue: 

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?

Ratio Decidendi:

In the 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. However, in Section 46 of the Code which reads as follows:

Section 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.

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.

The court held, 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 v. Prabhakar 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.

Section 46 of the Code of Criminal Procedure 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.

Moreover, the court stated it is unreasonable to expect a layman to understand 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. Therefore, the respondents are given the benefit of a mistaken impression, rather than that of deliberate and willful misrepresentation and concealment of facts.

Judgement: 

Appeal is dismissed.