The High Court explained the difference in the following terms;
38. In order to deal with the submission of the prosecution, it would be necessary to examine the concept of “custody” and “arrest” in connection with a criminal case.
39. The expression “custody” appears in number of enactments, like, Sections 438, 439, 442, 451 Cr.P.C., Section 45 of Customs Act, Sections 26 and 27 of Evidence Act etc. However, the expression “custody” has not been defined in any of the enactments. Likewise, the expression “arrest” has not been defined in the Code of Criminal Procedure or Indian Penal Code or any other enactment dealing with criminal offence. The only indication as to what would constitute “arrest” may perhaps be found in Section 46, Cr.P.C. which reads as follows:-
“46. 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:Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, an where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.”
40. In the decision reported as State of UP v Deoman Upadhyaya AIR 1960 SC 1125 the validity of Section 27 of Evidence Act was challenged on the ground that the said section unjustifiably discriminates between the “persons who are in police custody” and the “persons who are not in police custody” and thus offends Article 14 of Constitution of India. The majority judges were of the view that Section 27 is not violative of Article 14 of Constitution of India as the classification made between the “persons who are in police custody” and the “persons who are not in police custody” is based upon an intelligible differentia whereas a minority judge was of the view Section 27 is violative of Article 14 of Constitution of India. While adjudicating upon the validity of Section 27, the majority judges observed as under:-
“12……When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. A person directly giving to 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 within the meaning of Section 27 of the Indian Evidence Act: Legal Remembrancer v. Lalit Mohan Singh, Santokhi Beldar v. King-Emperor. Exceptional cases may certainly be imagined in which a person may give information without presenting himself before a police officer who is investigating an offence. For instance, he may write a letter and give such information or may send a telephonic or other message to the police officer...... A person who has committed an offence, but who is not in custody, normally would not without surrendering himself to the police give information voluntarily to a police officer investigating the commission of that offence leading to the discovery of material evidence supporting a charge against him for the commission of the offence. The Parliament enacts laws to deal with practical problems which are likely to arise in the affairs of men. Theoretical possibility of an offender not in custody because the police officer investigating the offence has not been able to get at any evidence against him giving information to the police officer, without surrendering himself to the police which may lead to the discovery of an important fact by the police, cannot be ruled out; but such an occurrence would indeed be rare. Our attention has not been invited to any case in which it was even alleged that information leading to the discovery of a fact which may be used in evidence against a person was given by him to a police officer in the course of investigation without such person having surrendered himself…..”
41. In the same decision, the minority judge observed as under:-
“38. During the course of the arguments of the learned counsel for the respondent, to the question put from the Bench whether an accused who makes a confession of his guilt to a police officer would not by the act of confession submit himself to his custody, the learned counsel answered that the finding of the High Court was in his favour, namely, that such a confession would not bring about that result. Learned Additional Solicitor-General in his reply pursued this line of thought and contended that in that event all possible cases of confession to a police officer would be covered by Section 27 of the Evidence Act. The governing section is Section 46 of the Code of Criminal Procedure, which reads: “(1) In making the 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.” It has been held in some decisions that “when a person states that he has done certain acts which amount to an offence, he accuses himself of committing the offence, and if he makes the statement to a police officer, as such, he submits to the custody of the officer within the meaning of clause (1) of this section, and is then in the custody of a police officer within the meaning of Section 27 of the Evidence Act”. But other cases took a contrary view. It is not possible to state as a proposition of law what words or what kind of action bring about submission to custody; that can only be decided on the facts of each case. It may depend upon the nature of the information, the circumstances under, the manner in, and the object for, which it is made, the attitude of the police officer concerned and such other facts. It is not, therefore, possible to predicate that every confession of guilt or statement made to a police officer automatically brings him into his custody. I find it very difficult to hold that in fact that there would not be any appreciable number of accused making confessions or statements outside the custody of a police officer....”
42. In the decision reported as Aghnoo Nagesia v State of Bihar AIR 1966 SC 119 the accused came to the police station and informed the police officer present there that he has committed the murder of his aunt and her daughter, son-in-law and grandson and that he can get recovered the bodies of the deceased person(s) and the tangi used by him for committing the murder(s). The police officer receiving the information registered the FIR based upon the aforesaid information given by the accused. Pursuant thereto, the accused got recovered the bodies of the deceased person(s) and a tangi. One of the questions which arose before Supreme Court was whether the accused was in “custody” of a police officer within the meaning of Section 27 of Evidence Act at the time when he gave the aforesaid information to the police. The court noted the difference of opinion between the majority and minority judges on the meaning of the expression “custody” when the accused makes a confessional statement to the police but did not express any opinion on the said point and proceeded on the basis that the accused was in “constructive custody” at the time when he made the confessional statement to the police officer. The relevant discussion contained in the said decision i.e. Aghnoo Nagesia‟s case (supra) is as under:-
“Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Now, the Sub-Inspector stated he arrested the appellant after he gave the first information report leading to the discovery. Prima facie therefore, the appellant was not in the custody of a police officer when he gave the report, unless it can be said that he was then in constructive custody. On the question whether a person directly giving to police officer information which may be used as evidence against him may be deemed to have submitted himself to the custody of the police officer within the meaning of Section 27, there is conflict of opinion. See the observations of Shah, J. and Subba Rao, J. in State of U.P. v. Deoman Upadhyaya. For the purposes of the case, we shall assume that the appellant was constructively in police custody and therefore the information contained in the first information report leading to the discovery of the dead bodies and the tangi is admissible in evidence......”
43. An impression does emerge that in Aghnoo Nagesia's case the Supreme Court used the expressions “custody” and “arrest” as synonyms, but such a reading of the decision would not be correct. The fact that Section 46 Cr.P.C. uses both the expressions “custody” and “arrest” indicates the legislative intent that “custody” and “arrest” are not to be treated as synonymous terms. Following observations of the Supreme Court in the decision reported as Directorate of Enforcement v Deepak Mahajan (1994) 3 SCC 440 make the position somewhat clear:-
“48...It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words „custody‟ and „arrest‟ are not synonymous terms. Though „custody‟ may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan Beevi”
44. After a survey of case law on the point, the meaning of the expression “custody” was succinctly stated by the Orissa High Court in the decision reported as Paramhansa Jadab v State AIR 1964 Ori 144 in the following terms:-
“It is now well settled that "police custody" for the purpose of Section 26 of the Evidence Act does not commence only when the accused is formally arrested but would commence from the moment when his movements are restricted and he is kept in some sort of direct or indirect police surveillance. In Lay Maung v. Emperor, AIR 1924 Rang 173 the learned Judge pointed out the danger of construing the expression "police custody" in Section 26 of the Evidence Act in a more narrow technical sense as commencing from the time when the accused is formally arrested. The learned Judge observed that if such a view be taken it will be very easy for the police to evade that section and that the correct interpretation would be that "as soon as an accused or suspected person comes into the hands of a police officer he is, in the absence of any clear and unmistakable evidence to the contrary, no longer at liberty and is therefore in "custody" within the meaning of Sections 26 and 27 of Evidence Act". In Haroon v. Emperor, AIR 1932 Sind 149 and Pharho Shahwali v. Emperor, AIR 1932 Sind 201 it was pointed out that, even indirect control over the movements of sus-pects by the police would amount to 'police custody' within the meaning of that section. In Gurdial Singh v. Emperor; AIR 1932 Lah 609 and in In re Edukondalu, AIR 1957 Andh Pra 729 also the same principles were emphasised and it was observed that there may be police custody without formal arrest.....”
45. In the instant case, the appellant came to the police station and made a confessional statement to HC Dilbagh Singh PW-8. From that very moment, the movements of the appellant got restricted for surely having told the police that he had murdered his wife, the appellant could not have left the police station against the wishes of the police officer(s) present there. As stated by the Orissa High Court in Paramhansa‟s case (supra), “police custody” for the purposes of Section 26 commences as soon as the movements of the accused get “restricted”; the appellant came into the “custody” of a police officer the moment he made a confessional statement to HC Dilbagh Singh.Have a look at the decision.