DINESH KUMAR Vs. STATE OF HARYANA AND OTHERS

JUDGEMENT

(1.) This petitioner challenges order dated 18.11.2005 (Annexure P.2) rejecting his claim for appointment as Constable-Driver on the ground that the petitioner could not be appointed because during verification of the character and antecedents it was found that he was arrested in case F.I.R. No. 168 dated 13.10.1994 registered at P.S. Kalanuar under Sections 323/324/34 I.P.C. He was acquitted on 6.1.1998 by the Judicial Magistrate 1st Class Rohtak. On the allegations that the petitioner had concealed these from the selection committee and did not furnish information in column Nos. 13(a) and 14 of the application form submitted by him for the post he has not been offered appointment. The Police Department had advertised the posts of Constable-Driver and fixed the last date for submission of application as 13.12.2003. The petitioner had applied and his application was registered at serial No. 239/GC/DVR. He was selected as a Constable-Driver. In the application form column Nos. 13(a) and 14 were required to be answered. The petitioner had filed up those columns by inserting the work "No". Both the columns reads as under:

(2.) The facts as revealed in the writ petition as well as in the written statement are that on 13.10.1994 a criminal case was registered against all the family members of the petitioner under Sections 323/324/34 I.P.C. at P.S. Kalanaur vide F.I.R. No. 168 dated 13.10.1994 the petitioner was granted bail on 17.10.1994 without having been actually arrested. A copy of the bail order has been placed on record as Annexure P.4 Eventually the petitioner along with his family members was acquitted on 8.1.1994 by the Judicial Magistrate 1st Class Rohtak. After selection of the petitioner he was sent for medical examination. His antecedents were to be verified by the Superintendent of Police Rohtak who had reported the registration of a criminal case as mentioned above. On the basis of the allegations that the petitioner has failed to disclose the registration of a criminal case and his alleged arrest the petitioner was not given appointment letter on the aforementioned excuse. The appeal filed by the petitioner was rejected by Director General of Police Haryana vide impugned order dated 18.11.12005.

(3.) Having heard the learned Counsel for the parties and perusing the record as produced by the learned State counsel we are of the view that this petition deserves to be allowed. In the year 2003 the petitioner has rightly filled up column No. 14 by stating that he had never been convicted by any Court for any offence. Even column No. 13(A) has also been correctly answered because the petitioner has never been physically arrested. The offences for which F.I.R. 168 was registered against the petitioner on 13.10.1994 were not serious offences. The offence under Section 323 I.P.C. as per the 1st Schedule appended to the Code of Criminal Procedure 1973 is a non-cognizable offence whereas the offence under Section 324 I.P.C. is a cognizable offence. However the petitioner was never taken into custody by arresting him personally. The question before us is whether the expression 'arrest' used in Form No. 45 (used in Sections 436, 437, 438(3) and 441) is required to be construed in a hyper technical way or whether a common place meaning is to be attached to it. If we interpret the expression 'arrest' in a hyper technical manner then by virtue of Form No. 45 to Schedule II of the Code a person who is released on bail is deemed to have been arrested or detained. Form No. 45 as given in Schedule II of the Code is reproduced hereunder: