Madras High Court: In an application filed under Section 482 of the Criminal Procedure Code, 1973 (‘CrPC’) against the order of the Judicial Magistrate, accepting the surrender and remand of the four accused persons to judicial custody under Section 167(2) of the CrPC, N. Anand Venkatesh, J. gave the following directions:Surrender petitions by the accused who have voluntarily surrendered before a magistrate having no jurisdiction are not maintainable and no order of remand can be passed by the magistrate under Section 167(2) of the CrPC in light of the decisions in State of W.B. v Dinesh Dalmia, (2007) 5 SCC 773; Manubhai Ratilal Patel v State of Gujarat, (2013) 1 SCC 314 and KA Rauf Sherif v. Directorate of Enforcement, (2023) 6 SCC 92.
- A person accused of an offence under the Penal Code, 1860 (‘IPC’) who has not been forwarded under Section 167(1) of the CrPC and has voluntarily appeared and filed a surrender petition cannot be dealt with under Section 167(2) of the CrPC.
- The period of 15 days police custody or 60/90 days custody as mentioned in the proviso to Section 167(2) of the CrPC will commence only from the date on which he comes into the custody of the Court upon being forwarded by the police under Section 167(1) of the CrPC.
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In the event an accused voluntarily appears before the Magistrate having no jurisdiction to try the case, it would be open to the Magistrate to direct the Station House Officer of the nearest police station under his jurisdiction to take the accused into custody and deal with him in accordance with the procedure set out in Clauses (3) to (5) of PSO 559 of the Tamil Nadu government.
The Court further clarified that these directions are to be followed by all magistrates of the Tamil Nadu and Puducherry.
Fivepersons were accused under Section 147, 148, 302 of the Penal Code, 1860 (‘IPC’), Section 3 and 4 of the Explosive Substances Act and Section 4 of the Prevention of Damage to Public Property Act, 1984 voluntarily surrendered before the Judicial Magistratewho had no jurisdiction over the matter, thus attracting Section 167 of the CrPC. JM accepted the surrender of four of the accused and remanded them to custody leaving out the juvenile accused and directed to produce him before the Juvenile Justice Boardafter due medical examination.
(i) Issues and Analysis: Whether a person accused of an offence committed in this State or the UT of Puducherry is entitled to walk into any Magistrate Court in the State of Tamil Nadu or Puducherry and file a surrender petition?
Whether a Magistrate, having no jurisdiction to try the case, can accept such a surrender petition and thereafter remand the accused under Section 167(2) of the CrPC?
After referring to numerous Supreme Court and High Court judgments vis-à-vis application of Section 167 and Section 57 of the CrPC, the Bench concluded that a Magistrate has no power to cause arrest, nor can he take the accused into custody to remand him under Section 167(2) of the CrPC in the absence of the accused being forwarded to him under Section 167(1) of the CrPC. Thus, a person who has not been forwarded and who voluntarily appears and files a surrender petition cannot be dealt with under Section 167(2) of the CrPC.
The Court said that the remand under Section 167(2) of the CrPC can be effected by a Magistrate whether or not he has jurisdiction to try the case, because the question of territorial jurisdiction is a matter falling under Chapter XIII in the context of inquiries and trials. Further, Section 167(1) contemplated the forwarding of the accused to the “nearest” Judicial Magistrate. Such a Magistrate may or may not have jurisdiction to try the case. Nevertheless, the Code empowers such a Magistrate to remand the accused under Section 167(2) CrPC as there is a vital safeguard in the form of the entries in the case diary and the remand report forwarded by the police under Section 167(1) of the CrPC which enables the Magistrate to apply his mind and decide whether remand is really necessary.
After taking note of State v. K.N. Nehru, 2011 SCC OnLine Mad 1984 , the Court noted that unless the case diary and the remand report are transmitted to the Magistrate, he would not be in a position to apply his mind to effectively determine whether a case for remand is made out under Section 167(2) of the CrPC. Consideration of the remand report and case diary are jurisdictional conditions for authorizing detention under Section 167(2) of the CrPC. 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) CrPC would be clearly illegal and without jurisdiction.
The Bench, throwing light upon the interpretation of Section 167 of the CrPC with respect to Article 22 of the Constitution, said that the CrPC authorises deprivation of personal liberty only when these cardinal principles must be followed while construing a law which authorises deprivation of personal liberty:
- the letter of the law must be construed strictly and
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the power conferred by such law must be scrupulously within the bounds laid down in such a law.
The Bench reiterated that vis a-vis IPC offences, the Magistrate has no power to cause arrest nor can he take the accused into custody to remand him under Section 167(2) of the CrPC in the absence of the accused being forwarded to him under Section 167(1) CrPC.
Further, it took note of the Police Standing Orders 559 (‘PSO 559’)of the Tamil Nadu government and said a police officer attached to the police station falling within the jurisdiction of the Court where the accused surrenders can, if necessary, take the accused into custody and thereafter have him produced before the Court having jurisdiction, with due intimation being promptly sent to the Police Station within the jurisdiction of which the offence occurred. Thus, where an accused voluntarily surrenders before a Magistrate having no jurisdiction to try the case, it would be open to the Magistrate to direct the Station House Officer, in whose territorial jurisdiction the Court is situated, to take the accused into custody and deal with him in accordance with the procedure set out in Clauses (3) to (5) of PSO 559.
The Court reiterated that the phrase, “whether he has or has not jurisdiction to try the case” as mentioned in Section 167(2) of the CrPC are not standalone expressions, and that the word “jurisdiction” used therein refers to the territorial jurisdiction of the Magistrate. The Court also said that in order to satisfy the commands of Section 57 of the CrPC and Article 22 of the Constitution an arrestee should be produced before a Magistrate within 24 hours of hours of his arrest and detention whether he has jurisdiction or not.
The Court listed out circumstances under which a Magistrate, irrespective of whether he has jurisdiction to try the case or otherwise, acquires legal jurisdiction to remand the arrestee: that the investigation cannot be completed within 24 hours
- there are grounds for believing that the information or the accusation is well founded.
- transmission of the copy of the entries in the case diary and
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forwarding of the accused to the Magistrate by the police.
Thus,in absence of the cumulative satisfaction of all of the above conditions, the Magistrate does not acquire legal jurisdiction to remand.
As the papers of the matter have already been transmitted to the jurisdictional court, the Bench said that the impugned order of remand has worked itself out and there serves no purpose to interfere with the said order.
[State of Tamil Nadu v. Muneeswaran, 2024 SCC OnLine Mad 481, decided on 08-03-2024]
Advocates who appeared in this case :
For the Petitioner: Public Prosecutor Hasan Mohamed Jinnah
For the Respondent: Government Advocate K.M.D Muhilan
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