State of Haryana vs Dinesh Kumar-
The respondent in the first of two appeals applied form for the post under the Haryana Police and submitted their negative answer in the column 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?
State Of Haryana & Ors vs Dinesh Kumar on 8 January, 2008
facts of the case-: State of Haryana vs Dinesh Kumar-
This case was related to the question on the cancellation of candidature after the verification was made on the basis of criminal records.
This is appealed filed in the hon’ble apex court for the hearing and disposal together, inasmuch as, the disputed issues are common to both the scenario, but verdict given by the same high court is opposite which give rise of question of law which is of great importance.
Through the case, it was asked to 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 respondent in this appeal and that of the appellant in the other appeal in relation to their recruitment as Constable-driver in the state of Haryana police.
The respondent in the first of two appeals applied form for the post under the Haryana Police and submitted their negative answer in the column 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?
Later on, they found to be arrested in a criminal proceedings under penal law, when the verification was made. But the respondent contended before high court that he was granted bail before getting arrested by police. That’s why on the basis of this fact, he contended he had never been actually arrested and case was ended with his acquittal.
The rejection was made against respondent for the appointment was challenged on the ground that appellant had not suppressed any material while filling up the said column 13(A) and 14, and high court quashed the order of rejection by DGP, Haryana and directed the appellants herein to take step to issue an appointment letter to the respondent.
The court concluded that the petitioner had been acquitted from criminal case in question, he had truthfully answered the query in column 14, 13(A) by saying that he had never been convicted b any court for any offence.
In the other writ petition filed by Bhupinder and Lalit, High court made different opinion that since the writ petitioners had withheld important information it clearly cancelling them from appointment, as it shows that they could not be trusted to perform their duties honestly. The High Court, accordingly, dismissed the writ petitions as being without merit.
In the first appeal, the respondent had not surrendered to the police but presented himself in the court with the lawyer of his own volition and was grated bail. Hence, respondent voluntarily appeared before the magistrate and prayed for bail and was released on bail, so that respondent understand at no point if time was he taken into arrest or custody.
Now in the second appeal, the appellants in response to the query in column 14 had quite truthfully answered that they had not been into custody by any court for nay offence. Since he had been acquitted of the charges he had released on their personal bonds without being placed under arrest or being taken into custody. The answer provided by them was held to be suppression of the facts that effect and was confined to the question as to whether they had been arrested.
Issues– State of Haryana vs Dinesh Kumar-
Whether the person appeared before magistrate and had been released without being taken into formal custody, could amount to be considered as under arrest or not ?
Observation- State of Haryana vs Dinesh Kumar
The important question which was in dispute, need to be answered in both appeals is whether the manner in which they had appeared before the Magistrate and had been released without being taken to the lockup, could amount to arrest for the purpose of the query in column 13A. As mentioned hereinbefore, the same High Court took two opposite opinion of the manner.
While, on the one hand, one bench of the High Court held that since the accused had neither surrendered nor had been taken to the lockup, it could not be said that he had actually been arrested, on the other side, another bench of the same High Court quashed the similar writ petitions filed by Bhupinder and Lalit Kumar, without examining the question as to whether they had actually been arrested or not.
In order to resolve such dispute that arisen because of the two divergent views, it is necessary to examine the concept of arrest and custody related to criminal case. The expression of arrest has neither been defined in the CrPC nor in Indian penal code or any other enactment dealing with criminal offences. What constitutes arrest may perhaps read in section-46 CrPC which states as-
Arrest how made –
- while arresting an accused, the police or other making the same actually touch or confine the body of the person to be arrested, unless there is a gesture to be under custody by word or action..
- if such person resists forcefully in arresting him, or make any effort to evade the arrest, such police officer or the other person may use all means necessary to effect the arrest.
- There is nothing in the section gives a right to excuse the death of a person who is not accused of an punishable with death or with imprisonment of life.
- No woman shall be arrested after the sunset and before sunrise, and where exceptional scenario exit, the woman police officer shall, by making a report and obtaining the prior permission of the judicial magistrate of the first class within those local jurisdiction of the offence is committed or the arrest is to be made.
Judgment- State of Haryana vs Dinesh Kumar
The Hon’ble court held that the views expressed by the High Court in Dinesh Kumar’s writ petition regarding arrest were incorrect, while the views expressed in the writ petitions of Mr. Lalit Kumar and Bhupinder correctly interpreted the meaning of the expressions of arrest and custody.
In the view of the Bench, the reasoning providing in Dinesh Kumar’s case in that context is a possible view and does not call for interference under Article 136 of the Indian Constitution. Conversely, the decision rendered in the writ petitions of Lalit Kumar and Bhupinder has to be reversed to be in line with the decision in Dinesh Kumar’s case. When the question arises as to what constitutes arrest has for long engaged the attention of different High Courts, and also this Court, this may not be 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 not been same, had the person concerned not been released on bail. We would, in the facts of these cases, give the benefit of the 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 view taken by the High Court in Dinesh Kumar’s case.
Accordingly, we are of the opinion, that the legal stand as to what constitutes arrest was correctly stated in the writ petitions filed by Lalit Kumar and Bhupinder, we affirm the order passed in Dinesh Kumar’s case and extend the same benefit to Lalit Kumar and Bhupinder also.
as the result, 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 Court dated 22nd September, 2005, validated in the said appeal, is set aside and the concerned respondents are directed to take initiative to issue appointment letters to the appellants in the said appeals subjected to fulfillment of other conditions by them.
conclusively 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 (DOJ) date of this judgment on the basis of such notional benefits.
accordingly,The appeals are disposed
State of Haryana vs Dinesh Kumar
State of Haryana vs Dinesh Kumar
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