Arrest and Custody.

Author: Mr. Krishna Murari Yadav

Assistant Professor, LC-I, Faculty of Law, University of Delhi, Delhi.

Custody and Arrest

Arrest

Meaning of Arrest –

In the case of State of Haryana vs. Dinesh Kumar (2008) Supreme Court observed, “The expression arrest has neither been defined in the Code of Criminal Procedure 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.” The word ‘arrest’ is derived from the French ‘Arreter’ meaning ‘to stop or stay’ and signifies a restraint of the person. According to the Shorter Oxford English Dictionary, arrest means the apprehending of one’s person, in order to be forthcoming to answer an alleged or suspected crime. According to Bouvier’s Law Dictionary arrest means to deprive a person of his liberty by legal authority.

In the case of RoshanBeevi and Ors.vs. Joint Secretary to Government of Tamil Nadu[1](Madras H.C. Nov. 9, 1983) Hon’ble Justice S R Pandian observed “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 question of whether the person is under arrest or not depends not on the legality of the arrest, but on whether he has 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 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 the manner known to the law, which is so understood by the person arrested.”

[1]Bench: K Natarajan, S Kader, SR Pandian. Judgment was written by SR Pandian.

In the case of Roshan Beevi and Ors.vs. Joint Secretary to Government of Tamil Nadu, Madras High Court observed, custody and arrest are not synonymous terms and observed that it is true that in every arrest there is custody but not vice-versa. Custody may amount to arrest in certain cases, but not in all cases.”

Arrest of Woman -Section 46 (1) Provided &(4)

Mode of an arrest of woman can also be divided into two parts

(i) Oral Submission

(ii) Touching the body of a woman.

(i) Oral Submission – According to Section 46(1) Provided here submission to custody on an oral intimation of arrest shall be presumed. No need to touch the body.

(ii) Touching the body of woman – In special circumstances, she may be physically touched and confined.

Arrest of a woman can be divided into two parts namely;

(1) Arrest by a woman

(2) Arrest by a man

(1) Arrest by a woman – Rule is that arrest of woman can be arrested by woman. In the night (after sunset and before sunrise) she cannot be arrested. In special circumstances, she can be arrested by woman police officer by making written report to Judicial Magistrate, First Class and with prior permission of this court.

(2) Arrest by a man –Section 46 (4) contents, ‘Save in exceptional circumstances’. It denotes that in special circumstances priority must be given to prevent crime rather than fulfilling procedure.

For example, a lady after stealing a baby started to run away in night from hospital and only male police officer are available, in these circumstances, she will be arrested by male police officer and it is justified on the basis of ‘Save in exceptional circumstances’ contents in section 46(4).

Another example – Suppose a lady terrorist started to fire on the mob. In this circumstances, male police officer may arrest. He will not wait for woman police officer.

In the case of State of Uttar Pradesh v. Deomen(1960 SC) Supreme Court observed, “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.”

In the case of RoshanBeeviv. State of Tamil Nadu (1984) the Court observed, “The modality of arrest as contemplated under section 46  is that while making an arrest, a police officer or other person making the same (arrester) –

(1) Should actually touch the body of the person to be arrested or

(2) Should actually confine the body of the person to be arrested.

These kinds of the modality of arrest are not necessary in case the person intended to be arrested submits, either by word or by action, to the authority of the arrester. In other words, if the person to be arrested submits to the authority or control of the arrester, the latter need not actually touch or confine the body of the person to be arrested. Conversely, if he does not so submit himself to the authority of the arrester, any of the two conditions mentioned above, viz., the touching or confinement of the body of the person to be arrested should be satisfied.”

Difference between Custody and Arrest

In the case of RoshanBeevi v. State of Tamil Nadu, Madras High Court observed following differences between arrest and custody-

Question

What constitutes arrest and custody in criminal law?

Answer

This question was thoroughly discussed by Supreme Court in case of State of Haryana v. Dinesh Kumar (2008). This question was also discussed by Madras High Court in RoshanBeevi and Ors. vs. Joint Secretary to Government of Tamil Nadu[1](Nov. 9, 1983).

State of Haryana v. Dinesh Kumar (2008) –In this case qualification for recruitment as Constable-Drivers in the Haryana Police were involved. The respondent (Dinesh Kumar) in the first of these two appeals and the appellants (Lalit Kumar and Bhupinder) 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:-

Column 13(A): Have you ever been arrested?Reply of Dinesh Kumar – No.

Column 14: Have you ever been convicted by the Court of any offence?Reply of Dinesh Kumar – No.

Dinesh Kumar Case –It was found that case was registered against him and his family members under section 323, 324 r/w section 34 in 1994 and ultimately he was acquitted in 1998. He was selected but he was not appointed. The appeal filed by the respondent was rejected by the Director General of Police, Haryana, by his order dated 18th November, 2005. Reason was given that he did not disclose about his arrest.

Writ Petition (First) – Dinesh Kumar filed Civil Writ Petition before Punjab and Haryana High Court in 2006.

Argument of Dinesh Kumar – Dinesh Kumar argued that in connection with the aforesaid FIR, 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 has 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. Dinesh 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 his understanding, at no point of time was he taken into custody or arrested.

Decision of High Court – High Court came to the conclusion that he had not been arrested. High Court quashed the decision of DGP and directed to take step for appointment. The reason of this decision was following –

(1) Dinesh Kumar had been acquitted by lower court.

(2)He had been granted bail without arrest.

Writ Petition (Second) –Lalit Kumar and Bhupinder filed writ petition in same Court. In the said matter the appellants had been involved in a criminal case for offences punishable under Sections 148/149/307/325/323 of the Indian Penal Code. Appellant appeared before the Ilaka Magistrate on 7th June, 2002, and were released on their personal bonds without being placed under arrest or being taken into custody. Later on they had been subsequently acquitted of the said charges. 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 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, dismissed the writ petitions as being without merit.

Common Question in both appeals – Whether the manner in which 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 in Column 13A.

Supreme Court – Supreme Court observed following important view-

(1) No definition of arrest and custody under the statute- The expression arrest or custody has neither been defined in the Code of Criminal Procedure nor in the Indian Penal Code or any other enactment dealing with criminal offences.

(2) Section 46 – The only indication as to what would constitute arrest may perhaps be found in Section 46 of the Code. 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.

(3) RoshanBeevi Case and Niranjan Singh vs. Prabhakar Raja Ram (1980 Justice Krishnaiyer)– In this case, Supreme Court rejected the ratio of Roshan Case and accepted the ratio of Niranjan Singh Case. Supreme Court said that the interpretation of arrest and custody rendered by the Full Bench in RoshanBeevi case may be relevant in the context of Sections 107 and 108 of the Customs Act where summons in respect of an enquiry may amount to custody but not to arrest, but such custody could subsequently materialize 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 police authorities before he can be granted the benefit thereunder.

                                                               Conclusion of Dinesh Case

 Kaiser Otmar v. State of Tamil Nadu, 1981

In Roshan Case validity of Kaiser Case was challenged. So it is necessary to know Kaiser Case.

Facts of Kaiser Case – In Kaiser Singh Case person was taken into custody on 15 January 1981 and produced before Magistrate on 18 January 1981 i.e. after 70 hours. The victim was saying that he was arrested on 15 Jan. while customs officers was saying that although he was in custody since 15 Jan. but he disclosed the information so he was arrested on 18 Jan. and produced before Magistrate within 24 hours as per article 22 of the Constitution of India. In this case the Court that he was arrested on 15 January and he was produced before Magistrate in violation of Article 22. Criminal Law does not require any formality.

The reason of Decision of Kaiser Case –The Court observed, “Our legal system does not require that an arrest should be attended with any ritual of even that it should be ostentatious. It is not necessary that a man in order to get arrested should be taken the prisoner; nor does the law regard as arrest only the ceremonial hand-cuff or manacle. An authority is said to arrest another man if it prevents the latter from willing his movements and moving according to his will. Under enlightened modern conditions, it seldom becomes necessary for any police officer or other authority empowered to make arrests to actually seize or even touch a person’s body with a view to his restraint. Utterance of a guttural word or sound, a gesture of the index finger or hand, the sway of the head or even the flicker of an eye are enough to convey the meaning to the person concerned that he has lost his liberty.”

RoshanBeevi and Ors.vs. Joint Secretary to Government of Tamil Nadu[2]

Five writ petitions were filed under Article 226 of the Constitution of India. In this case validity of decision of Division Bench in case ofKaiser Otmar v. State of Tamil Nadu, 1981was challenged in which it was said that the detenu should be deemed to have been arrested from the moment they were taken into custody by the Customs officials, even if it be under the guise of any enquiry or interrogation, and that their subsequent custody with the Customs Department without being produced before the Magistrate within 24 hours as envisaged in Article 22(2) of the Constitution of India, would amount to an illegal detention.  In this case, the following important points were discussed –

(1) Meaning of Arrest –

Black’s Law Dictionary – “Arrest: To deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand

Mitra’s Legal and Commercial Dictionary–“Arrest consists of the actual seizure or touching of a person’s body with a view to his detention. The mere pronouncement of words of arrest is not an arrest unless the person sought to be arrested submits to the process and goes with the arresting officer. An arrest may be made either with or without warrant…”

Meaning of custody – Shorter Oxford English Dictionary defines meaning of ‘custody’–

(1). Safe-keeping, protection, charge, care, guardianship

(2). The keeping of an officer of justice, confinement, imprisonment, Durance

(3) Guardianship.

Difference between Custody and Arrest

This judgment was delivered in the context of Sections 107 and 108 of the Customs Act, 1962. These sections authorize a Customs Officer empowered in that behalf to require a person to attend before him and produce or deliver documents relevant to the enquiry or to summon such person whose attendance is considered necessary for giving evidence or production of a document in connection with any enquiry being undertaken by such officer under the Act.

It was said that sections 107 and 108 are analogous to section 160 of Cr.P.C. and any person comes in compliance of these provisions, such custody will not come under the category arrest.

In the case of RoshanBeevi and Ors.vs. Joint Secretary to Government of Tamil Nadu[3] (Madras H.C. Nov. 9, 1983) Hon’ble Justice S R Pandian observed “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 question of whether the person is under arrest or not depends not on the legality of the arrest, but on whether he has 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 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 the manner known to the law, which is so understood by the person arrested.”

There are following essential ingredient of arrest –

(1) There must be custody, (2) There must be an intention to arrest under the authority, (3)There must be seizure or detention of the person in the manner known to law. (4)Purpose of taking into custody and seizure is to answer a criminal charge or of preventing the commission of a criminal offence.

Custody and arrest are not synonymous terms and observed that it is true that in every arrest there is custody but not vice-versa. 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 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.

 Niranjan Singh vs. Prabhakar Raja Ram (1980)

Custody, in the context of section 439 (Rather than for the purpose of section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court. He can be in custody not merely when the police arrest 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.

(4) Section 107 and 108 – Sections 107 and 108 of the Customs Act do not contemplate immediate arrest of a person being summoned in connection with an enquiry, but only contemplates surrendering to the custody of the Customs Officer which could subsequently lead to arrest and detention.

(5) Judgment of High Court in respect of Dinesh Kumar was wrong – High Court’sinterpretation in Dinesh Kumar case was wrong.

(6) Halsbury’sLaws of England and section 46 of Cr.P.C. –According toHalsbury’sLaws of England meaning of arrest means arrest consists in the seizure or touching of a person‘s body with a view to his restraint; words 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. This definition is similar in spirit to what is incorporated in Section 46 of Cr.P.C.

(7) State of Uttar Pradesh v. Deomen(1960 SC) Supreme Court observed, “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.”

This definition was accepted in this case.

(8) Dinesh Kumar Case and Lalit Kumar Case –

Supreme 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 filed by Lalit Kumar and Bhupinder correctly interpreted the meaning of the expressions arrest and custody.

(9) Layman- Supreme Court granted the remedy to Dinesh Kumar, Lalit and Bhupinder on the ground that as a layman they rightly observed that they had not been arrested.

Conclusion – The position would have been different, had the person concerned not been released on bail. Benefit was given because they did in good faith.

Note – If a person directly surrenders before Court there is custody. But I cannot understand how it was an arrest? If it was arrest who has arrested? Supreme Court failed to reply these answers.

[1]Bench: K Natarajan, S Kader, S R Pandian. Judgment was written by S R Pandian.

[2]Bench: K Natarajan, S Kader, S R Pandian. Judgment was written by S R Pandian.

[3]Bench: K Natarajan, S Kader, S R Pandian. Judgment was written by S R Pandian.