The Kerala High Court recently held that as per the Code of Criminal Procedure (CrPC), a court with the appropriate jurisdiction cannot refuse permission to an accused person to surrender before it [Joseph Thomas v State of Kerala & Anr.]

Justice K Babu held that when an accused person surrenders before the court having jurisdiction, it has to either release such accused person on bail or remand him to custody for investigation or for any other purpose like keeping the prisoner safe.

“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. 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 Court said in its order.

However, the Court clarified that the position is different 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 CrPC,” the order stated.

The Court was considering a petition filed by a person who was the first accused in a case registered by the Maradu Police Station alleging offences punishable under Sections 451 (house trespass), 354 (assault or criminal force to woman with intent to outrage her modesty), 323 (voluntarily causing hurt), 509 (word, gesture or act to insult the modesty of woman) and 34 (common intention) of the Indian Penal Code (IPC).

The petitioner had, on 23 February, submitted a bail application along with a surrender memo before the Magistrate court having jurisdiction.

However, the Magistrate declined his bail application and also did not grant him permission to surrender before it. Instead, it orally suggested that the petitioner appear before the concerned Station House Officer (SHO).

This prompted the petitioner to approach the High Court with the present case challenging the decision of the Magistrate.

The petitioner argued that the act of the Magistrate in not granting him permission to surrender when he submitted himself to its jurisdiction, was illegal.

The Magistrate submitted through a report that as the petitioner was not permitted to be in the custody of the court, the bail application he filed was not considered.

The amicus curiae submitted that the course adopted by the lower court was incorrect. He pointed out that as per Sections 436 and 437 of the CrPC, a person accused of an offence is at liberty to surrender before the Magistrate or the court concerned, and when a person surrenders before the Magistrate or the court, the course to be adopted is to either release him on bail or remand him to custody.

The High Court after going through various precedents and careful examination of the CrPC noted:

“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 Court said that when the accused voluntarily surrendered to its jurisdiction, the Magistrate ought to have taken him into custody and dealt with him as per law.

Hence, the Court allowed the petitioner to appear before the Magistrate within one week and directed the Magistrate to consider his plea for surrender and entitlement to bail as per law.

The petitioner was represented by advocates TN Suresh and Dhanuja Vettathu.

The respondents were represented by Public Prosecutor G Sudheer.

Advocate John S Ralph served as the Amicus Curiae.

[Read Judgment]