IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 81 of 2008 Sarjeet Singh …….Appellant Versus State of U.P. Through Secretary, Ministry of Home Affairs, Govt. of U.P. Lucknow & others …Respondents. Mr. M.S. Bisht, Advocate for the appellant. Ms. Beena Pandey, Advocate for respondent nos. 1 and 2. Mr. H.M. Raturi, Advocate for respondent nos. 3 and 4. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. (By the Court) Heard Mr. M.S. Bisht, Advocate for the appellant, Ms. Beena Pandey, Advocate for respondent nos. 1 and 2 as well as Mr. H.M. Raturi, Advocate for respondent nos. 3 and 4. By means of the present special appeal the appellant/petitioner has challenged the order dated 24.4.2008 by which his Writ Petition (S/S) No. 6064 of 2001 (Old No. 37555/1998) has been dismissed. By the aforesaid writ petition which was filed before the High Court of Judicature at Allahabad, the appellant/petitioner had challenged the order dated 8.10.1998 (contained as Annexure no. 1 to the writ petition) by which his selection to the post of constable was cancelled. Subsequent to the filing of the said writ petition, it was transferred to this Court under Section 34 of the Uttar Pradesh Reorganisation Act, 2000 and re- numbered as Writ Petition (S/S) No. 6064 of 2001. Brief facts of the case are that pursuant to an advertisement to the post of constable in U.P. Police, the 2 appellant/petitioner had filed his application, and after undergoing the tests, was selected as a constable. At the time of application to the post of constable, the appellant/petitioner had to file an affidavit by which he gave an undertaking, inter alia that “(A) no criminal case has ever been registered against him and (B) he was never arrested in a criminal case”. However, when this information was sent for verification, it was found that a criminal case was registered against the petitioner which went to trial, though in the trial it ended in an acquittal. Therefore, it was found that the petitioner had concealed material facts and had obtained his appointment to the post of constable by non-disclosure of these material facts. His selection was, therefore, cancelled, as the selection was based on the final verification of the facts submitted by the petitioner. The learned Single Judge, therefore, had come to the conclusion that since the petitioner had obtained appointment by suppression of material fact, there was no infirmity or illegality when his selection was subsequently cancelled and, therefore, the learned Single Judge was of the view that the writ petition lacks merit and is liable to be dismissed, and was accordingly dismissed. In the present special appeal, the petitioner/appellant has taken us once again to all the facts which have already been canvassed before the learned Single Judge and has pleaded that the petitioner/appellant has in fact not suppressed any material fact inasmuch as though criminal case was registered against him, it subsequently ended in an acquittal and, secondly, though the petitioner was arrested, he was granted bail on the same day and, therefore, it would not amount to an “arrest”. 3 Learned counsel for the petitioner/appellant has also relied upon the decision of the Apex Court in State of Haryana and others v. Dinesh Kumar (2008) 3 SCC 222. As far as the facts in this case, the concerned persons had also to fill two columns, wherein they had to reply to: (A) Have you ever been arrested? (B) Have you ever been convicted by the court of any offence? The answer of both the queries was replied by the concerned persons in negative. The authorities during the investigation found that regarding these persons, a police case was in fact registered and chargesheet was subsequently filed, though in trial it ultimately ended in an acquittal. Secondly, these persons were actually arrested inasmuch as they appeared before the concerned Magistrate, who subsequently granted them bail, though on the same day. The view of the Punjab & Haryana High Court, was assailed by the State of Haryana in the said case before the Supreme Court and it was argued that the interpretation of the words “arrest” and “custody” of the learned Judges of the High Court was not correct. Regarding the second query, the answer given in negative by the persons was in any case correct, as though a police case was registered and a chargesheet was filed against the persons, it ended in acquittal and, therefore, they had rightly stated that they had never been convicted by the Court. We are, therefore, concerned with the first query alone which is, as to whether a person who surrenders in a Court and is granted a bail on the same day, can be said to have been arrested? The Apex Court in the case cited by the petitioner/appellant (State of Haryana and others v. Dinesh Kumar (2008) 3 SCC 222) before this 4 Court has corrected the view of the Punjab & Haryana High Court and did not agree with the view of the Full Bench of the Madras High Court, as relied upon by the respondent and has instead relied upon the decision of the Apex Court in Niranjan Singh and another v. Prabhakar Rajaram Kharote and others, AIR 1980 SC 785, wherein while interpreting Section 46 and Section 439 of the Criminal Procedure Code, the Apex Court had expanded the meaning of words “arrest” and “Custody” in paragraph 23, which is reproduced as below : “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 case. In our view, the law relating to the concept of “arrest” or “custody” has been correctly stated in Niranjan Singh case. Paras 7, 8 and the relevant portion of para 9 of the decision in the said case state as follows : (SCC pp. 562- 63) “7. When is a person in custody, within the meaning of Section 439 CrPC? 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 dubieties are unfair evasions 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. 8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail 5 under 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. 9. He can be in custody not merely when the police arrests 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.” All the same, the Apex Court in State of Haryana and others v. Dinesh Kumar (2008) 3 SCC 222 came to the conclusion that though the Punjab & Haryana High Court was strictly speaking wrong in its interpretation of the meaning of words “custody” and “arrest” inasmuch as once a person surrenders before a Magistrate or appears before a Magistrate asking for a bail, it would mean that he has been arrested, as only a person who has been arrested can ask for a bail. The legal interpretation of the words “custody” and “arrest” have been discussed threadbare and all doubts have been laid to rest, yet in the interest of justice, the Apex Court also came to the conclusion that “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 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.” Therefore, though legally the interpretation of words “custody” and “arrest” were discussed threadbare, yet the Apex Court found that in that given set of facts the concerned persons while making a statement in the relevant column that they have never been arrested, have 6 done so on a “mistaken impression” and, therefore, it would not amount to a concealment of facts. However, the question before this Court would be whether the same benefit can be given to the present appellant/petitioner? On a total appreciation of the facts and circumstances of the case, we feel that this benefit cannot be given to the appellant/petitioner for the following reasons : Even if this Court also comes to the conclusion that the appellant/petitioner was released on bail on the same day and, therefore, the appellant/petitioner was bonafidely of the view that he has never been arrested and, therefore, he had not actually suppressed any fact while stating that he has not been arrested, as indeed was the view of the Apex Court on these facts, the appellant/petitioner has another hurdle to cross ! which is that apart from the fact of “arrest”, the petitioner/appellant also stated in negative that no criminal case was ever registered against him. Now, this was absolutely false. Unlike in the facts of the case cited by the petitioner (State of Haryana and others v. Dinesh Kumar (2008) 3 SCC 222), there was no such column where the concerned persons had to answer the query as to whether any criminal case has been registered against them. Since in the present case, the pointed query before the petitioner/appellant was also as to whether any criminal case has been registered against him, the petitioner has wrongly given an affidavit that no criminal case was ever filed against him. Not only a criminal case was filed against him, which the petitioner admits, but subsequent to the filing of the F.I.R., chargesheet was also submitted against the petitioner, though he was 7 subsequently acquitted. The petitioner has clearly suppressed the material facts in order to gain appointment on the post of constable. This is clearly an act of fraud. It is a settled position in law and equity that fraud vitiates everything. The learned Single Judge has, therefore, rightly rejected the writ petition of the appellant/petitioner. In view of the aforesaid, this Court finds no infirmity in the order passed by the learned Single Judge dated 24.4.2008 in Writ Petition (S/S) No. 6064 of 2001 (Old No. 37555/1998). The Special Appeal being totally devoid of merit is dismissed. No order as to costs. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J) 23.2.2010 Avneet