Arrest and Surrender
Ziaur Rahman
(Querist) 09 February 2009
This query is : Resolved
A person was wanted in a criminal case.He surrendered before the magistrate.The magistrate granted him bail.But in order sheet he did not write that he was first taken into custody by him on his surrender and then granted bail.Subsequently he was acquitted from the case. The said person applied for a governmentjob and in his verification form in answer to a question "whether arrested?" he wrote "No". He was denied the job for making a false declaration.His advocate says that since the magistrate while enlarging him on bail did not write in the order sheet that he was taken into custody on his surrender so it can be safely presumed that he was not arrested and that the surrender did not meant arrest.The law officer of government opined that the surrender before the magistrate and subsequent enlargement on bail will be deemed to be arrest by the the magistrate and then enlargement on bail. What is the position of law? Can a magistrate Grant Bail to an accused person on surrender before his court without taking him in the custody? Since the magistrate has not written in the order sheet that the accused was taken into custody and then granted bail then will it be considered an implied custody? kindly answer with the reference of the law or rulings whether the law is in favour of the candidate or not?
PALNITKAR V.V.
(Expert) 10 February 2009
If a person surrenders before court he is deemed to be in judicial custody. But it not synonymous to Arrest. See the following judgment on the point of deemed custody.
1980 INDLAW SC 201
[SUPREME COURT OF INDIA]
Niranjan Singh and Another
v
Prabhakar Rajaram Kharote and Others
V. R. Krishna Iyer
10 Mar 1980
BENCH
V. R. Krishna Iyer
COMPARATIVE CITATIONS
1980 LLJ 428, 1980 AIR(SC) 785, 1980 (86) CRLJ 426, 1980 (2)
SCC 559, 1980 SCC(Cr) 508, 1980 MLJ 573, 1980 CAR 140, 1980 UJ
428, 1980 (3) SCR 15, 1980 CrLR(SC) 265, 1980 INDLAW SC 201
THIS JUDGMENT WAS FOLLOWED IN 72 CASE(S)
ACTS REFERRED
Code of Criminal Procedure, 1973 (as amended by Act No. 25 of
2005 & Act No. 2 of 2006.)
Constitution Of India, 1950
.JUDGMENT TEXT
The Judgment was delivered by KRISHNAIYER, V.R.
JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Special Leave
Petition (Criminal) No. 393 of 1980. From the Judgment and
Order dated 25-9-1 979 of the Bombay High Court in Crl. Appln.
No. 607 of 1979.
Petitioner No. 1 in person.
P. R. Mridul, S. V. Deshpande and N. M. Ghatate for
Respondents 1 to 11.
O. P. Rana and M. N. Shroff for Respondent No. 13.
The Order of the Court was delivered by
KRISHNA IYER, J.
"No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment"*
is a part of the Universal Declaration of Human Rights. The
content of Art. 21 of our Constitution, read in the light of
Art. 19, is similarly elevating. But romance about human
rights and rhetoric about constitutional mandates lose
credibility if, in practice, the protectors of law and minions
of the State become engines of terror and panic people into
fear. We are constrained to make these observations as our
conscience is in consternation when we read the facts of the
case which have given rise to the order challenged before us
in this petition for special leave.
The petitioner, who has appeared in person is the complainant
in a criminal case where the accused are 2 Sub- Inspectors and
8 Constables attached to the City Police Station, Ahmednagar.
The charges against them, as disclosed in the private
complaint, are of murder and allied offences under ss. 302,
341, 395, 404 read with ss. 34 and 120B of the Penal Code. The
blood-curdling plot disclosed in the complaint is that
pursuant to a conspiracy the brother of the complainant was
way laid by the police party on August 27, 1978 as he was
proceeding to Shirdi. He had with him some gold ornaments and
cash. He was caught and removed from the truck in which he was
travelling, tied with a rope to a neem tree nearby, thus
rendering hi m a motionless target to a macabre shooting. One
of the Sub-Inspectors fired two shots from his revolver on the
chest of the deceased at close range and killed him
instantaneously. The policemen, having perpetrated this
M. PIRAVI PERUMAL
(Expert) 10 February 2009
Thanks a lot sir for providing an excellent judgement which will be of much use to our learned members
A. A. JOSE
(Expert) 10 February 2009
Palnitkar Sir,
It is really nice of you to have spared this much time to educate juniors in the profession and no words are enough to thank you for the same.
With best wishes.
RAKHI BUDHIRAJA ADVOCATE
(Expert) 10 February 2009
