Jurisdictional Court Cannot Deny Accused's Right To Surrender If Permitted By CrPC: Kerala High Court

The Kerala High Court recently held that a Magistrate cannot conclude that the accused was not in the custody of the Court when he voluntarily surrenders to its jurisdiction; it should take such accused in custody and deal with him as per law.

Justice K. Babu added that when CrPC permits an accused to surrender before the Court having jurisdiction over the subject matter, the jurisdictional court cannot refuse permission. 

"When an accused surrenders before the Magistrate, the course to be adopted is either to release him on bail or remand him to custody for investigation or for any other purpose like keeping the prisoner safe." 

In February 2023, the petitioner surrendered before the Judicial First Class Magistrate Court and submitted a bail application along with a surrender memo. However, the Magistrate refused permission to surrender before the court and declined to consider the bail application, stating that the petitioner was not permitted to be in the custody of the court. The Magistrate orally directed the petitioner to appear before the SHO concerned.

The petitioner challenged this course adopted by Magistrate before High Court. 

Advocates T.N Suresh and Dhanuja Vettathu for the petitioner contended that the act of the Magistrate refusing permission to the petitioner to surrender when he submitted to its jurisdiction is illegal. 

Public Prosecutor G. Sudheer submitted that the concern of the prosecution is only that the Police would not be deprived of getting the custody of the petitioner, if required, for the investigation. 

Amicus curiae Advocate John S Ralph submitted that the course adopted by the Magistrate was incorrect. He further submitted, as per Sections 436 and 437 of CrPC, a person accused of an offence is at liberty to surrender before the Magistrate or the Court concerned, and when a person surrenders, the course to be adopted is either to release him on bail or remand him to custody. 

So the question before the Court was if a Magistrate refuse permission to surrender to its jurisdiction to a person accused of an offence.  

The Judge noted that Sections 436 and 437 permit the appearance before the jurisdictional court by the person accused of an offence.

The meaning of the term ‘custody’ was significant in the case. The Court looked into the broader meaning of ‘custody’ which suggested that the law had taken control of a person accused of an offence or suspected of the commission of an offence.

It was also found that in numerous precedents, the Supreme Court had opined that since an accused has to be present in Court to move a bail petition under Section 437, his physical appearance before the Magistrate tantamounts to surrender.

In this case, the petitioner had appeared before the Court and moved a bail application and had, therefore, surrendered before the Court. The petitioner has voluntarily submitted to the jurisdiction of the Magistrate and came to be in judicial custody when he surrendered.

Thus Justice Babu held that the Magistrate was wrong in concluding that the petitioner was not in the custody of the Court when he voluntarily surrendered to its jurisdiction and that the Magistrate ought to have taken the petitioner in custody and dealt with him as per law.

"When the Code permits a person accused of an offence to surrender before the Court having jurisdiction over the subject matter, it cannot refuse permission. When an accused appears before the Court and applies for surrender, his prayer shall be accepted." 

However, it was clarified that the position may stand differently if the accused surrenders before a Court having no jurisdiction in the case. Then the Magistrate may refuse to take cognizance of his surrender on the ground that he has no jurisdiction as per Section 56 of CrPC.

The Court added that the concern of the prosecution projecting the requirement of the custody of the petitioner for investigation has no foundation since Section 167 CrPC is equally applicable to cases where the accused surrenders before the Court or is arrested and produced.

Thus, the course adopted by the Magistrate was found to be irregular. The petitioner was directed to appear before the Magistrate within one week and the Magistrate was directed to consider his plea for surrender and entitlement to bail as per law. 

The matter was disposed of as such. 

Case Title: Joseph Thomas v. State of Kerala

Citation: 2023 LiveLaw (Ker) 315

Click Here To Read/Download The Order