Magistrate Court Having Jurisdiction Cannot Refuse An Accused Permission To Surrender: Kerala High Court

The Kerala High Court recently held that a Magistrate cannot refuse a person accused of an offence, permission to surrender to its jurisdiction under Sections 436 and 437 of Code of Criminal Procedure, 1973.

A single bench of Justice K Babu observed:

“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.”

The Court was hearing a petition filed by a person accused of offences under Sections 451, 354, 323, 509 & 34 of the Indian Penal Code, 1860. The petitioner surrendered before the Judicial First Class Magistrate Court which had jurisdiction in the matter by submitting a bail application and a surrender memo. However, the Magistrate refused the petitioner permission to surrender before the Court and declined to consider his bail application. The Magistrate reasoned that the petitioner was not ‘permitted to be in the custody of the Court’ and directed the petitioner to appear before the appropriate SHO.

The Court referred to Sections 436 and 437 of the Cr.P.C. which deals with bails and bail bonds, and permits the accused to appear before the Jurisdictional Court. The meaning of ‘custody’ in these provisions broadly mean that the law has taken control of the accused, the Court observed.

Advs. T N Suresh, Dhanuja Vettathu appeared for the petitioner, Public Prosecutor G Sudheer, appeared for the State and Adv. John S. Ralph, was the Amicus Curiae in the matter.

The Public Prosecutor submitted that the concern of the prosecution was that the Police should be able to get custody of the petitioner for investigation, if needed. However, the Court rejected this view noting that Section 167 of the Cr.P.C. equally applies to cases where the accused surrenders before the Court or is arrested by the police and produced before the Court concerned.

“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.

The position may, however, 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 in view of Section 56 of Cr.P.C.” the Court observed.

In the matter at hand the Court found the procedure followed by the Magistrate to be irregular and directed the Magistrate to consider the plea of the Petitioner for surrender and bail:

“In the present case, the petitioner/accused appeared before the Court and moved a bail application. The petitioner has, therefore, surrendered before the Court. The petitioner has voluntarily submitted to the jurisdiction of the learned Magistrate. He came to be in judicial custody when he surrendered. The learned Magistrate was wrong in concluding that the petitioner was not in the custody of the Court when he voluntarily surrendered to its jurisdiction. The learned Magistrate ought to have taken the petitioner in custody and dealt with him as per law.” The Court concluded.

Case Title: Joseph Thomas V State of Kerala

Citation: 2023 LiveLaw (Ker) 244

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