2008 (1) TMI 411 - SC - Customs

Whether the manner in which accused 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? Held that - 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 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. 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.

Issues Involved:
1. Definition and interpretation of "arrest" and "custody" in criminal proceedings.
2. The impact of non-disclosure of criminal cases on recruitment eligibility.
3. Divergent views of the High Court on similar facts.

Issue-wise Detailed Analysis:

1. Definition and Interpretation of "Arrest" and "Custody":
The Supreme Court was called to decide what constitutes "arrest" and "custody" in relation to a criminal proceeding. The expressions "arrest" and "custody" are not defined in the Code of Criminal Procedure (CrPC) or the Indian Penal Code (IPC). Section 46 of the CrPC provides some indication, stating that an arrest involves touching or confining the body of the person to be arrested unless there is submission to custody by word or action. The Court referred to various High Court decisions and dictionary meanings to interpret these terms. In the case of Niranjan Singh v. Prabhakar, the Supreme Court had held that a person is in custody if they are under the control of the court or an officer with coercive power. The Court reiterated that submission to the court's jurisdiction and physical presence constitutes custody.

2. The Impact of Non-Disclosure of Criminal Cases on Recruitment Eligibility:
The respondent in the first appeal and the appellants in the second appeal had applied for recruitment as Constable-Drivers in the Haryana Police. Their application forms included columns asking if they had ever been arrested or convicted. The respondent in the first appeal answered negatively, despite having been arrested in connection with a case but later acquitted. The appellants in the second appeal were also involved in criminal cases but acquitted. The High Court had taken different views on whether non-disclosure of these facts disqualified them from recruitment. One bench held that since the respondent had not been formally arrested, he had correctly answered the query, while another bench held that non-disclosure of involvement in criminal cases disqualified the appellants.

3. Divergent Views of the High Court on Similar Facts:
The Supreme Court noted the divergent views taken by two benches of the same High Court. One bench held that the respondent had not been arrested as he had appeared before the Magistrate voluntarily and was granted bail, thus not disqualifying him from recruitment. The other bench dismissed the writ petitions of the appellants, holding that non-disclosure of their criminal involvement disqualified them. The Supreme Court found the view in the first appeal to be more reasonable, considering the layman's understanding of "arrest" and "custody."

Judgment:
The Supreme Court held that the views expressed in Dinesh Kumar's writ petition regarding arrest were incorrect, while the views in the writ petitions filed by Lalit Kumar and Bhupinder correctly interpreted the terms "arrest" and "custody." However, the Court extended the benefit of a mistaken impression to the appellants in the second appeal, affirming the High Court's decision in Dinesh Kumar's case. The Court dismissed the appeal in SLP(C) No. 1840 of 2007 and allowed the appeal in SLP(C) No. 14939 of 2007, directing the issuance of appointment letters to the appellants, subject to fulfillment of other conditions. The appellants were deemed to have been appointed from the date persons lower in merit were appointed, with entitlement to salary only from the date of the judgment based on notional benefits.

Conclusion:
The appeals were disposed of accordingly, with each party bearing their own costs.

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