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2008(1) Supreme 296
Supreme Court of india
C.K. Thakker & Altamas Kabir, JJ.
State of Haryana & Ors. — Petitioners
versus
Dinesh Kumar — Respondents
Appeal (civil) 84 of 2008
Decided on 08-01-2008
(AIR 1980 SC 785) — Relied upon.
1984 Criminal Law Journal 134 — Distinguished.
Facts of the case:-
1.Respondent in one appeal and appellant in other appeal had applied for appointment as constable Drivers under Haryana Police and submitted their application forms. Appointment was denied on ground that respondent and appellant failed to disclose criminal case which had been registered against them in Application form. Contention of respondent that he had not suppressed any material while filling up application forms as he was released on bail and had not been actually arrested and case against him ended in acquittal. Writ petition there against was allowed. However in other writ petition filed by “L” and “B” coordinate bench of same High Court dismissed writ petitions holding that since writ petitioners had withheld important information, it clearly disentitled them to appointment.
2.Present appeals have been filed against said orders.
Findings of the court :-
The Court held that a person can be stated to be in judicial custody when he surrenders, before Court and submits to its directions. It is no doubt true that accused persons had appeared before concerned Magistrates with their advocates and on applying for bail were granted bail without being taken into formal custody, which swayed one of benches of Punjab and Haryana High Court to take a liberal view and to hold that no arrest had actually been effected. Said view, held incorrect as it goes against very grain of Sections 46 and 439 of Code. When a person, who is not in custody, approaches police officer and provides information, which leads to discovery of a fact, which could be used against him, it would be deemed that he had surrendered to authority of investigating agency. Hence held that views expressed by High Court in Dinesh Kumars writ petition regarding arrest were incorrect, while views expressed in writ petitions filed by “L” and “B” correctly interpreted the meaning of the expressions arrest and custody. Reasoning given in Dinesh Kumars case in that context held to be a possible view and does not call for interference under Article 136 of the Constitution. Conversely, decision rendered in writ petitions filed by “L” and “B” reversed to be in line with decision in Dinesh Kumars 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. Position would have been different, had the person concerned not been released on bail. In the facts of cases, benefit of a mistaken impression was given 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 Kumars case. Accordingly, although, held that legal position as to what constituted arrest was correctly stated in writ petitions filed by “L” and “B”, order passed in Dinesh Kumars case was confirmed and same benefit was extended to “L” and “B” also.
Result: Appeals disposed of.
judgment
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 “arrest” and “custody” 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 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 respondents 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 vi
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