Holding

An appearance before the court and surrender for bail, even without formal physical custody, constitutes an arrest for the purpose of the recruitment application.

Summary

The respondents applied for Constable‑Driver positions in the Haryana Police and answered "No" to the application queries whether they had ever been arrested or convicted. Verification later revealed that they had been arrested in connection with FIRs but were acquitted and released on bail without ever being taken into formal custody. The Department rejected their appointments on the ground of alleged concealment, leading to two opposite High Court rulings on whether such bail‑release constituted an arrest for the purpose of the application. The Supreme Court examined the meaning of "arrest" and "custody" under Sections 46 and 439 of the Code of Criminal Procedure, holding that surrender before a magistrate and obtaining bail amounts to judicial custody and therefore an arrest. However, the Court granted the benefit of a mistaken impression rather than willful misrepresentation, directing appointment of the applicants. Consequently, one appeal (SLP(C) No.1840) was dismissed and the other (SLP(C) No.14939) was allowed, with appointment letters to be issued.

Issues considered

Whether appearance before a magistrate and release on bail without formal detention amounts to an arrest for the purpose of the recruitment application.
Whether the applicants concealed material facts by answering "No" to the arrest query in the application form.
Interpretation of Sections 46 and 439 of the Code of Criminal Procedure with respect to arrest and custody.

Legislation cited

Code of Criminal Procedure, 1973s. 439, s. 46
Constitution of Indias. 136
Customs Act, 1962s. 107, s. 108
Indian Penal Code, 1860s. 148, s. 149, s. 307, s. 323, s. 324, s. 325, s. 34

Subjects

arrestcustodySection 46 CrPCSection 439 CrPCbailrecruitmentconcealmentmisrepresentationjudicial custodySupreme Court interpretation

Judgment

[2008] 1 S.C.R. 281

STATE OF HARYANA & ORS. A
-, v.
DINESH KUMAR
(C.A. No. 84 of 2008)
JANUARY 8, 2008
8
(C.K. THAKKER AND ALTAMAS KABIR, JJ.)

Code of Criminal Procedure, 1973:
ss. 46 and· 439 - Expressions 'arrest' and 'custody' -
Connotation of - Persons appearing before Magistrate c
released on bail/personal bond without being taken into formal
custody - HELD: A person can be stated to be in judicial
custody when he 'Surrenders before the Coult and submits to
its directions - When a person who is not in custody,
approaches a police officer and provides information, which D
leads to discovery of a fact, which could be used against him,
it would be deemed that he has surrendered to the authority of
investigating agency
Service Law:
E
Appointment - Recruitment to police constable-drivers
- Application form - Query in, as to arrest of applicant -
Answered in negative - Later it was found that applicant was
released on bail/personal bond in respect of a criminal case
- Appointment denied for suppression of material fact - Held: F
Though the applicant-accused appeared before the Magistrate
and on his application he was granted bail without being taken
into formal custody, it cannot be said that no arrest had actually
been effected - However, on facts of the case, the benefit of a
mistaken impression would be given to applicant rather than
G
treating it a case of deliberate and willful misrepresentation
and concealment of facts - Authorities directed to give
appointment letters to candidates concerned - Constitution

l of India - Arlicle 136.
281 H
282 SUPREME COURT REPORTS [2008] 1 S.C.R.

A The respondent in C.A. No. 84 of 2008 and the
appellant in C.A. No. 85 of 2008 applied for appointment
as Constable-Drivers in the Haryana Police. In answer to
the queries as to whether the applicant was ever arrested
and as to whether he was ever convicted by the Court of
B any offence, as asked in columns 13(A) and 14,
respectively, of the application form, the applicants
answered in the negative. Subsequently, during
verification of character and antecedents of the applicants
it was reported that they had been arrested in connection
c with different FIRs registered ·against them, though
subsequently both were acquitted of the charges framed
against them. The Department being of the view that the
applicants concealed material facts from the Selection
Committee and did not correctly furnish the information
required in columns 13(A) and 14 of the applications
0
submitted by them for recruitment to the post, declined
the appointment. The appeals having been rejected by
the Director General of Police, the candidates filed
separate writ petitions at different times which came to
be listed before two separate Benches of the High Court.
E The contention of the candidates in both the writ petitions
was that they were granted bail/released on personal bond,
without having been arrested, and since they were never
actually arrested and the case against them having ended
in acquittal, it would be deemed that no case was ever
F filed against them and, therefore, they did not suppress
any information by replying in the negative to the queries
contained in columns 13(A) and 14 of the application form.
The Bench hearing the writ petition filed by the respondent
in C.A. No.84 of 2008 accepted the contention of the writ
G petitioner therein and allowed the writ petition, whereas
the Bench hearing the writ petition of the appellants in
C.A. No.85 of 2008 took a contrary view and dismissed
the writ petition. The two judgments were challenged in
the instant appeals.
H
STATE OF HARYANA & ORS. v. DINESH KUMAR 283

-'. ? The question for consideration before the Court A
was: whether the manner in which the applicants
appeared before the Magistrate and were released without
being taken into formal custody, could amount to arrest
for the purpose of the query in column 13A of the
application form? B
Answering the question in the affirmative and
disposing of the appeals, the Court
-.(

HELD: 1.1. The expression "arrest" has neither been
defined in the Code of Criminal Procedure nor in the Penal
Code or any other enactment dealing with criminal
c
offences. Similarly, the expression "custody" has also not
been defined in the Code. However, in view of sub-
sections (1) and (2) of Section 46 of the Code, it is clear
that in order to make an arrest the police officer or other
person making the same shall actually touch or confine D
the body of the person to be arrested, unless there be
~ submission to the custody by word or action. [para 13,14
and 15) [289-F, G; 290-E, F]
1.2 As regards the law relating to the concept of
E
"arrest" or "custody" this Court in Niranjan Singh's case*
has held that a person can be stated to be in judicial
custody when he surrenders before the Court and
submits to its directions. 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 F
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. G
[para 23, 24) [294-B; 295-A, C, DJ
~
*Niranjan Singh vs. Prabhakar AIR 1980 s·c 785-
relied on.
1.3 It is no doubt true that, in the instant, case the H
284 SUPREME COURT REPORTS r2008J 1 s:c.R.

A accused persons appeared before the Magistrates
concerned with their advocates and on applying for bail
were granted bail without being taken into formal custody,
which fact appears to have swayed one of the benches
of the High Court to take a liberal view and to hold that no
B arrest had actually been effected. The said view, is
incorrect as it goes against the very grain of Sections 46
and 439 of the Code. [para 25] [295-E, F, G]
Roshan Beevi and Anr. Vs. Joint Secretary to the Govt.
of Tamil Nadu and Ors. 1984 Criminal Law Journal 134 -
C distinguished.
1.4 The definition of 'arrest' as given in Halsbury's
Law of England is similar in spirit to what is incorporated
in s. 46 of the Code of Criminal Procedure. The concept
was expanded by this Court in State of Uttar Pradesh vs.
D Deomen*, the sequatur whereof is that when a person,
who is not in custody, approaches the police officer and
provides information, which leads to the discovery of a
fact, which could be used against him, it would be deemed
that he had surrendered to the authority of the
E investigating agency. [para 25,27] [296-B, D, F, G]
*State of Uttar Pradesh vs. Deomen AIR 1960 SC 1125
- relied on.
Hafsbury's "Laws of England" 4th Edition Vol.11 -
F referred to.
1.5 Therefore, High Court in the writ petition of the
respondent in C.A. No.84 of 2008 erred in its conclusion,
regarding 'arrest', while the views expressed in the other
writ petition correctly interpreted the meaning of the
>
G expressions "arrest" and "custody". [para 28) [296-G, H;
297-A]
2.1 However, the reasoning given in the judgment
under appeal in C.A. No.85 of 2008 in the context is a
possible view and does not call for interference under
H Article 136 of the Constitution. Conversely, the decision
STATE OF HARYANA & ORS. v. DINESH KUMAR 285

~ > rendered in the other writ petition has to be reversed to A
be in line with the former 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 B
before the Court and being granted bail immediately.
Therefore, in the facts of these cases, the benefit of a
-( mistaken impression would be given to the applicants,
rather than treating it as a case of deliberate and wilful
misrepresentation and concealment of facts. [para 29] C
[297-8, C, DJ
2.2 The Judgment of the High Court impugned in the
C. Appeal No. 85 of 2008 is set aside and the authorities
are directed to take steps to issue appointment letters to
the appellants in the said appeals subject to fulfillment of o
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 E
appointment, they will be entitled to salary only from the
date of this judgment on the basis of such notional
benefits. [para 31] (297-G; 298-A]
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 84
~
of 2008. F
From the Judgment and final Order dated 1.8.2006 of the
High Court of Punjab and Haryana at Chandigarh in C.W.P. No.
18/2006.
WITH
G
C.A. No. 85 of 2008
~ Anoop G. Chaudhary, Marijeet Singh, Roopansh Purohit,
Devendra Kumar Singh, TV.George, Ved Prakash Singh,
Ramesh Kuamr Shokeen,and Kamal Mohan Gupta for the
Appellants. H
286 SUPREME COURT REPORTS [2008) 1 S.C.R.

A P.S. Patwalia, Anil Hooda, Dr. Sushi! Balwada, Devesh
< ). .
Tripathi, Amanpreet Singh, Vinod Kumar Ahlawat, Jagjit Singh
Suhag, Suresh Kumar Nanda! and Satbir Pillania for the
Respondent.

The Judgment of the Court was delivered by
B
ALTAMAS KABIR, J. 1. Leave granted.
2. These two appeals have been taken up for hearing and i-
disposal together, inasmuch as, the issues to be decided in
these appeals are common to both, but have been decided
C differently by two co-ordinate benches of the same Hig~ 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
D 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. 1
3. The respondent in the first of these two appeals and the
E 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?
F 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
G 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
H his family members were ultimately acquitted of the charges
\

~
STATE OF HARYANA & ORS. v. DINESH KUMAR 287
[KABIR, J.]
.. > framed against them on 5th January, 1998, by the Judicial A
Magistrate, 1st 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. B
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 c
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
D
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 E
14.

7. The 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 F
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 181h
November, 2005 and directed the appellants herein to take
G
steps to issue an appointment lett~r 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 H
r-
288 SUPREME COURT REPORTS [2008] 1 S.C.R.

A 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 th at the appellant had never been arrested,
though he had obtained bail in connection with the said case.
B 9. 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, being FIR No.212 dated 3rc1November,2000,
registered at Police Station Sadar, Narwana, for offences
c punishable under Sections 148/149/307/325/323 of the Indian
Penal Code, but they had been subsequently acquitted of the
said charges on 1oth September, 2001. 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
D 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, as it revealed that they
could not be trusted to perform their duties honestly. The High
Court, accordingly, dismiEsed the writ petitions as being without
E merit.
10. In the first of the two 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
F 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.

G 11 . As to the second of the two appeals, the appellants in
response to the query in column 14, had quite truthfully answered
that they had not been convicted by any Court of any offence,
r--
since they had been acquitted of the charges brought against
them. With regard to column 13(A), the appellants who had been
implicated in FIR 108 dated 25th May 2002 under Sections 323/
H
''
STATE OF HARYANA & ORS. v. DINESH KUMAR 289
[KABIR, J.]
""' > 324/34 Indian Penal Code of Police Station Nangal Chaudhary, A
Mahendergarh, appeared before the llaka Magistrate on 7th
June, 2002, and were released on their personal bonds without
being placed under arrest or being taken into custody. The
information disclosed by them was held to be suppression of
the fact that they had been involved in a criminal case though B
the tenor of the query was not to that effect and was confined to
-'\ the question as to whether they had been arrested.

12. One of the common questions which, therefore, need
to be answered in both these appeals is whether the manner in
which they had appeared before the Magistrate and had been c
released without being taken into formal custody, could amount
to "arrest" for the purpose of the query in Column 13A. As
mentioned hereinbefore, the same High Court took two different
views of the matter. While, on the one hand, one bench of the
High Court held that since the accused had neither surrendered D
nor had been taken into custody, it could not be said that he had
~ actually been arrested, on the other hand, another bench of the
same High Court dismissed similar writ petitions filed by Lalit
Kumar and Bhupinder, without examining the question as to
whether they had actually been arrested or not. The said bench E
decided the writ petitions against the writ petitioners upon
holding that they had withheld important information regarding
their prosecutions in a criminal case though ultimately they were
acquitted.
-"
· 13.. In order to resolve the controversy that has arisen F
because of the two divergent views, it will be necessary to
examine the concept of "arrest" and "custody" in connection with
a criminal case. The expression "arrest" has neither been
defined in the Code of Criminal Procedure (hereinafter referred
to as the 'Code') nor in the Indian Penal Code or any other G
'--! enactment dealing with criminal offences. The only indication
as to what would constitute "arrest" may perhaps be found in
Section 46 of the Code which reads as follows:-
"Arrest how made - (1) In making an. arrest the police
H
290 SUPREME COURT REPORTS [2008] 1 S.C.R.

A 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
B 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
c 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
D officer shall, by making a written report, obtain the prior
permission of the Judicial Magistrate of the first C:ass
within whose local jurisdiction the offence is committed or
the arrest is to be made.}"
14. We are concerned with sub-sections (1) and (2) of
E
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.
F
15. Similarly, the expression "custody" has also not been
defined in the Code.
16. The question as to what would constitute "arrest" and
"custody" has been the subject matter of decisions of different
G High Courts, which have been referred to and relied upon by
Mr. Patwalia appearing for Dinesh Kumar, respondent in the
first of the two appeals. This Court has also had occasion to ~

consider the said question in a few cases, which we will refer to
shortly. Reliance was also placed on the dictionary meaning of
H the two expressions which will also be relevant to our decision.
STATE OF HARYANA & ORS. v. DINESH KUMAR 291
[KABIR, J.]
. )
17. Mr. Ahoop Chaudhary, learned senior advocate, who A
appeared for the State of Haryana, in both the appeals,
\
submitted that when the respondent in the first appeal and the
appellants in the second appeal had appeared before the
Magistrates and prayed for bail, it must be understood that they
had surrendered to the custody of the court, as otherwise, the B
provisions of Section 439 of the Code would not have had
application. Mr. Chaudhary also submitted that it did not matter
as to whether the accused persons had been arrested and
detained in custody by the police or not, the very fact that they
voluntarily appeared before the Magistrate and prayed for bail c
amounted to arrest of their movements, since thereafter they
were confined to the Court room and were no longer free to
leave the court premises of their own choice.
18. Mr. Chaudhary submitted that the ordinary dictionary
meaning of "arrest" is to legally restrain a person's movements D
for the purpose of detaining a person in custody by authority of
law. He submitted that in Dinesh Kumar's writ petition the High
Court had erred in coming to a finding that he had never been
arrested since he had voluntarily appeared before the Magistrate
and had been granted bail immediately. E
19. Opposing Mr. Chaudhary's submission, Mr. Patwalia,
relying on various decisions of different High Courts and in
particular a Full Bench decision of the Madras High Court in the
,.\ case of Roshan Beevi and Anr. Vs. Joint Secretary to the Govt.
of Tamil Nadu and Ors. (1984 Criminal Law Journal 134) F
submitted that although technically the appearance of the
accused before the Magistrate might amount to surrender to
judicial custody, in actuality no attempt had been made by anyone
to restrict the movements of the accused which may have led
him to believe that he had never been arrested. It is on a layman's G
........... ~
understanding of the principle of "arrest" and "custody" that
prompted the respondent in the first of the two appeals and the
appellants in the second appeal to mention in column 13(A)
thatthey had never been arrested in conn.ection with any criminrl
offence. H
292 SUPREME COURT REPORTS [2008] 1 S.C.R.

~ ..
A 20. Mr. Patwalia referred to certain decisions of the
Allahabad High Court, the Punjab High Court and the Madras
High Court which apparently supports his submissions. Of the
said decisions, the one in which the meaning of the two
expressions "arrest" and "custody" have been considered in
B detail is that of the Full Bench of the Madras High Court in
Roshan Beevi's case (supra). The said decision was, however,
rendered in the context of Sections 107 and 108 of the Customs
Act, 1962. Sections 107 and 108 of the Customs Act authorises "'
a Customs Officer empowered in that behalf to require a person
c to attend
to before him and produce or deliver documents relevant
the enquiry or to summon such person whose attendance is
considen:d necessary for giving evidence or production of a

D
document in connection with any enquiry being undertaken by
such officer under the Act. In such context the Full Bench of the
Madras High Court returned a finding that "custody" and "arrest"
are not synonymous terms and observed that it is true that in
every arrest there is a custody but not vice-versa. A custody
-
may amount to "arrest" in certain cases, but not in all cases. It is
'
in the aforesaid circumstances that the Full Bench came to the
conclusion that a person who is taken by the Customs Officer
E either for the purpose of enquiry or interrogation or investigation
cannot be held to have come into the custody and detention of
the Customs Officer and he cannot be deemed to have been
arrested from the moment he was taken into custody.
lo-.
F 21. In coming to the aforesaid conclusion, the Full Bench
had occasion to consider in detail the meaning of the expression
"arrest". Reference was made to the definition of arrest in various
legal dictionaries and Halsbury's Laws of England as also the
Corpus Juri!? Secondum. In paragraph 16 of the judgment it was
observed as follows:
G
t-,..-
"16. From the various definitions which we have extracted
above, it is clear that the word 'arrest' when used in its
ordinary and natural sense, means the apprehension or
restraint or the deprivation of one's personal liberty. The
H question whether the person is under arrest or not, depends

..
STATE OF HARYANA & ORS. v. DINESH KUMAR 293
[KABIR, J.]
~

• not on the legality of the arrest, but on whether he has A
been deprived of his personal liberty to go where he
pleases. When used in the legal sense in the procedure
connected with criminal offences, an arrest consists in the
taking into custody of another person under authority
empowered by law, for the purpose of holding or detaining B
him to answer a criminal charge or of preventing the
• commission of a criminal offence. The essential elements
to constitute an arrest in the above sense are that there
must be an intent to arrest under the authority,
accompanied by a seizure or detention of the person in c
the manner known to law, which is so understood by the
person arrested. In this connection, a debatable question
that arises for our consideration is whether the mere taking
into custody of a person by an authority empowered to
arrest would amount to 'arrest' of that person and whether
D
the terms 'arrest' and 'custody' are synonymous."
22. Faced with the decision of this Court in Niranjan Singh
vs. Prabhakar (AIR 1980 SC 785) the Full Bench distinguished
the same on an observation made by this Court that equivocatory
quibbling that the police have taken a man into informal custody E
but have not arrested him, have detained him in interrogation
but have not taken him into formal custody, were unfair evasion
of the straightforwardness ,of the law. This Court went on to
). observe further that there was no necessity of dilating on the
shady facet as the Court was satisfied that the accused had F
physically submitted before the Sessions Judge giving rise to
the jurisdiction to grant bail. Taking refuge in the said observation,
the Full Bench observed that the decision rendered by this Court
could notbe availed of by the learned counsel in support of his
contentions that the mere taking of a person into custody would G
..._...;
amount to arrest. The Full Bench observed that mere
summoning of a person during an enquiry under the Customs
Act did not amount to arrest so as to attract the provisions of
Article 22(2) of the Constitution of India and the stand taken that
the persons arrested under the Customs Act should be produced
H
294 SUPREME COURT REPORTS [2008] 1 S.C.R.

A before a Magistrate without unnecessary delay from the moment • ,.

the arrest is effected, had to fail.

23. We are unable to appreciate the views of the Full Bench
of the Madras High Court and reiterate the decision of this Court
in Niranjan Singh's case (supra). In our view, the law relating to
B
the concept of "arrest" or "custody" has been correctly stated in
Niranjan Singh's case (supra). Paragraphs 7, 8 and the relevant
portion of paragraph 9 of the decision in the said case states
as follows:-

c "7 When is a person in custody, within the meaning of S.
439 Cr. P.C.? When he is, in duress either because he is
held by the investigating agency or other police or allied
authority or is under the control of the court having been
remanded by judicial order, or having offered himself to
D the court's jurisdiction and submitted to its orders by
physical presence. No lexical dexterity nor precedential
profusion is needed to come to the realistic conclusion
that he who is under the control of the court or is in the
physical hold of an officer with coercive power is in custody
for the purpose of S.439. This word is of elastic semantics
E.
but its core meaning is that the law has taken control of the
person. The equivocatory quibblings and hide-and-seek
niceties sometimes heard in court that the police have
taken a man into informal custody but not arrested him,
have detained him for interrogation but not taken him into
F formal custody and other like terminological dubieties are
unfair evasion of the straightforwardness of the law. We
need not dilate on this shady facet here because we are
satisfied that the accused did physically submit before the
Sessions Judge and the jurisdiction to grant bail thus arose.
G
8. Custody, in the context of S.439, (we are not, be noted, r ..."'
dealing with anticipatory bail under Se.438) is physical
control or at least physical presence of the accused in
court coupled with submission to the jurisdiction and order
H of the court.
STATE OF HARYANA & ORS v. DINESH KUMAR 295
[KABIR, J]
' > 9. He can be in custody not merely when the police arrest A
him, produces him before a Magistrate and gets a remand
to judicial or other custody. He can be stated to be in
judicial custody when he surrenders before the court and
submits to its directions ................... "
B
Sections 107 and 108 of the Customs Act do not
contemplate immediate arrest of a person being summoned in
~
connection with an enquiry, but o~ly contemplates surrendering
to the custody of the Customs Officer which could subsequently
lead to arrest and detention.
c
24. 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 (Emphasis supplied). D
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's case where it was held
E
that a person can be stated to be in judicial custody when he
surrenders before the Court and submits to its directions.
25. 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 F
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 G
Code. The interpretation of "arrest" and "custody" rendered by
the Full-Bench in Roshan Beevi'scase (supra) may be relevant

' in the context of Sections 107 and 108 of the Customs Act where
summotls in respect of an enquiry may amount to "custody" but
not to "arrest", but such custody could subsequently materialize
H
296 SUPREME COURT REPORTS [2008] 1 S.C.R.
( ,..
A 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
B 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
c touching of a person's body with a view to his restraint;
wor9s 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."
D
26. The aforesaid definition is similar in spirit to what is
incorporated in Section 46 of the Code of Criminal Procedure.
The concept was expanded by this Court in State of Uttar
Pradesh vs. Deomen (AIR 1960 SC 1125) wherein it was
interalia observed as follows:-
E
"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 peirson is sufficient. A person directly giving a police
F 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."
27. The sequatur of the above is that when a person, who
is not in. custody, approaches the police officer and provides
G information, which leads to the discovery of a fact, which could
be used against him, it would be deemed that he had
surrendered
_., to the authority of the investigating agency. ·
28. It must, therefore, be held that the views expressed by
the High Court in Dinesh Kumar's writ petition regarding arrest
H
STATE OF HARYANA & ORS. v. DINESH KUMAR 297
[KABIR, J.)
., ~
were incorrect, while the views expressed in the writ petitions A
filed by Lalit Kumar and Bhupinder correctly interpreted the
meaning of the expressions "arrest" and "custody''. However,
how far the same would apply in the ultimate analysis relating to
the filling up of column 13(A) is another matter altogether.
29. In our view, the reasoning given in Dinesh Kumar's B
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's case. When the question as to what c
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 D
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 E
view taken by the High Court in Dinesh Kumar's 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's case and extend the same F
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 G
-.._J 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
H
298 SUPREME COURT REPORTS [2008] 1 S.C.R.

A 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.
B 32. The appeals are disposed of accordingly.
33. In the peculiar facts of the case, the parties will bear
their own costs.
R.P. Appeals disposed of.
c