Observing that the Petitioner has surrendered before the Court and has voluntarily submitted to the jurisdiction of the Magistrate, the Kerala High Court 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.

The Magistrate ought to have taken the Petitioner in custody and dealt with him as per law, added the Court.

A Single Judge Bench of Justice K. Babu observed that “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”.

Advocate T.N. Suresh appeared for the Petitioner, whereas Public Prosecutor G. Sudheer appeared for the Respondent.

In a brief background, the Petitioner being an accused in a crime registered alleging offences punishable under Sections 451, 354, 323, 509 & 34 of IPC, surrendered before the Jurisdictional Court and submitted a bail application along with a surrender memo. The Magistrate, however, refused permission to surrender and declined to consider the bail application, holding that the Petitioner was not permitted to be in the custody of the Court. Apart, the Magistrate orally directed the Petitioner to appear before the SHO concerned. Hence, the present petition challenging the course adopted by the Magistrate.

After considering the submission, the High Court stated that Sections 436 and 437 of CrPC permit appearance before the Jurisdictional Court by the person accused of an offence.

While highlighting that the terms custody, detention, or arrest have not been defined in the CrPC, the High Court observed that the broader meaning of ‘custody’ is that the law has taken control of a person accused of an offence or suspected of the commission of an offence.

The Bench explained that 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 concern of the prosecution, projecting the requirement of the custody of the petitioner for investigation, has no foundation since the provisions of Section 167 Cr.P.C. are equally applicable to cases where the accused surrenders before the Court or is arrested and produced”, added the Bench.

Therefore, stating that the course adopted by the Magistrate was irregular, the High Court directed the Magistrate to consider the plea of the Petitioner for surrender and entitlement to bail, as per law.

Cause Title: Joseph Thomas v. State of Kerala and Ors.

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