Criminal Procedure Code Explained – Part VIII

📘 TOPIC: WHAT CONSTITUTES ARREST AND CUSTODY

📜 HOW ARREST IS MADE: SECTION 46 CrPC

Delhi Law Academy Jaipur presents below for aspirants of Rajasthan Judicial Service (RJS), DJS, PCS (J) and other Judicial Services throughout India a very important judgment of the Supreme Court of India in State of Haryana v. Dinesh Kumar [2008 SC].

(Original language of the judgment has been maintained; it has not been disturbed or replaced.)

⚖️ State of Haryana v. Dinesh Kumar [2008 SC]

📖 JUDGMENT

In these appeals we are called upon to decide what constitutes arrest and custody in relation to a criminal proceeding.

In order to resolve the controversy that has arisen 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 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 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.

We are concerned with sub-sections (1) and (2) of 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.

Similarly, the expression custody has also not been defined in the Code.

In our view, the law relating to the concept of arrest or custody has been correctly stated in Niranjan Singh case. Paragraphs 7, 8 and the relevant portion of paragraph 9 of the decision in the said case states as follows:-

When is a person in custody, within the meaning of Section 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 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 Section 439. This word is of elastic semantics 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 formal custody and other like terminological dubiotics 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.

Custody, in the context of Section 439, (we are not, be noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and order of the court.

He can be in custody not merely when the police arrest him, produce 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.

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. 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 case where it was held that a person can be stated to be in judicial custody when he surrenders before the Court and submits to its directions.

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 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 concept was expanded by this Court in State of Uttar Pradesh v. Deomen [AIR 1960 SC 1125] wherein it was inter alia observed as follows:-

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 person is sufficient. A person directly giving a police 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.

The sequatur of the above 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 investigating agency.

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