State of Haryana v. Dinesh Kumar (2008) 3SCC 222

Introduction

• This is the case where the Court defined the basic difference between arrest and custody.
• If the person surrenders himself before the magistrate without being arrested by the police, then it would not amount to an arrest. If he presents himself before the magistrate with his lawyer and without being arrested, and applies for bail, and it is granted by the magistrate, then it would amount to custody.

Facts

• In this case, there were two appeals before the High Court where the issue is arrest and custody in relation to criminal proceedings.
• At the time of appointment as Constable Drivers, there were two queries:
  • Have you been arrested?
  • Have you ever been convicted by the Court of any offence?
• At the time of furnishing the information, two candidates had not disclosed whether they had been arrested or not.
• Upon verification, it was reported that they had not furnished the information correctly, and as a result, they were not offered any appointment.

Issues Involved

• Whether the way 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?
• Whether the mere taking into the custody of a person by an authority empowered to arrest would amount to arrest of that person and whether the terms arrest and custody are synonymous?

Observation

• The Supreme Court observed the concept of arrest and custody in connection with a criminal case.
• The Court said arrest and custody both are not defined under Indian Penal Code, 1860 (IPC) or Code of Criminal Procedure, 1973 (CrPC), there is only indication about the arrest under Section 46(1) and (2) of the CrPC.
• The Court observed the essential elements to the arrest that there must be an intent to arrest under the authority, apprehension or restraint of one’s personal liberty, and the arrest must be understood by the person arrested.
• The Court further observed with regards to the Custody in the context of section 439 of the CrPC, where the Court said he can be in custody not merely when the police arrest him or produces him before the Magistrate. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions.
• The Court further said that unless a person of an offence is in custody, he cannot move to the Court for bail under Section 439 of CrPC.
• The main essential of the section is that to apply the bail under this section the person must be in custody and his movements must be restricted before he can move for bail.

Conclusion

• The Supreme Court rejected the High Court's view and stated that the layman cannot differentiate between arrest and custody.
• The position would be different if bail were not granted to him; hence, the candidates will be deemed to have been appointed, but they will be entitled to salary from the date of the judgment.