Magistrate Cannot Entertain Voluntary Surrender Of Accused When There Is No Jurisdiction To Try The Case: Madras High Court

Justice Anand Venkatesh observed that remand report and case diary are jurisdictional conditions for authorising detention under Section 167(2) as it allows the Magistrate to apply his mind anad effectively determine whether a case for remand is made out. Thus, in the court's opinion, when an accused voluntarily surrenders, the remand, based on only the FIR copy is clearly illegal and without jurisdiction.

“Consideration of the remand report and case diary are jurisdictional conditions for authorizing detention under Section 167(2) Cr.P.C. Where the accused voluntarily surrenders before the Magistrate, the Magistrate is left with only a surrender petition or at the most an FIR. Ex-facie, remand based on such ipse dixits without perusing the relevant material forwarded under Section 167(1) Cr.P.C would be clearly illegal and without jurisdiction,” the court observed.

The State was hearing a plea by the State questioning the order of a Judicial Magistrate accepting the surrender of accused persons in a murder case when the FIR was lodged in a completely different jurisdiction.

The State had argued that the in many grave offences, the habitual offenders had adopted the tactic of surrendering before Judicial Magistrate having no territorial jurisdiction over the case and offer themselves for remand. The Magistrate also exercised power under Section 167(2) CrPC and remand the accused and by the time the jurisdictional police becomes aware of their surrender, the period prescribed under Section 167(2) CrPC would have started running. The State thus argued that these undesirable practices have affected the statutory right of the police to investigate and called for some guidelines for the same.

The court agreed with the State and added that this practice was prevalent only in Tamil Nadu and Puducherry. The court observed that this practice, which is unknown to the rest of the country, had grown only to counter arrest and custody of police by obtaining a remand before the Magistrate.

The court observed that a Magistrate, irrespective of whether he has jurisdiction or not, acquires legal jurisdiction to remand an arrestee upon the following conditions-

• The investigation cannot be completed within 24 hours.
• There are grounds for believing that the accusation/information is well-founded.
• Transmission of entries in the case diary.
• Forwarding of the accused to the magistrate by the police.

The court added that when there was no cumulative satisfaction of the above conditions, a Magistrate did not acquire the legal jurisdiction to remand the accused. The court thus held that when an accused voluntarily appeared before the Magistrate, who did not have jurisdiction to try the case, it would be open to the Magistrate to direct the SHO of the nearest police station to take the accused into custody and deal with him following the procedure under the Police Standing Orders.

The court made it clear that the period for the proviso to Section 167(2), the period of 15 days police custody or 60/90 days custody will commence only from the date on which the accused comes in the custody of the court upon being forwarded by the police under Section 167(1) CrPC.

Counsel for the Petitioner: Mr.Hasan Mohamed Jinnah Public Prosecutor (State) Asst.by Mr.M.Leonand & Joseph Selvam and Mr.K.M.D.Muhilan Government Advocate (Crl.Side)

Citation: 2024 Livelaw (Mad) 102

Case Title: The State v Muneeswaran and Others

Case No: CRL.O.P No.5577 of 2024