Part.1 (04.03.2024)
Question of law
The State has preferred this petition questioning the order passed by the learned Judicial Magistrate, Sathyamangalam, accepting the surrender of four accused persons and remanding them to judicial custody till 6.3.2024, mainly on the ground that the learned Judicial Magistrate, Sathyamangalam did not have the territorial jurisdiction to entertain such a petition filed by accused persons by surrendering themselves before the Court.
Judgments relied by the state SPP: Ami Chand v.s. State of Himachal Pradesh reported in 2020 SCC Online HP 1840; Joseph Thomas v. State of Kerala reported in 2023 SCC Online Ker 3428; Ayyappan and others v. State reported in 2015 SCC Online Mad 11389.
7.It is further brought to the notice of this Court that the entire case records have now been transmitted to the file of the Judicial Magistrate-II, Chengalpattu.
8.In the considered view of this Court, a plain reading of Section 167 (1) and 167(2) Cr.PC shows that Section 167(2) Cr.PC cannot stand independently and it is only a consequence of the provision under Section 167(1) Cr.PC. A Magistrate can act upon the accused person only if he is forwarded by the police under Section 167(1) Cr.PC. There is absolutely no indication while reading Section 167(2) Cr.PC that an accused person can straight away surrender before any Magistrate Court without being forwarded by the Police under Section 167(1) Cr.PC. That apart, the judgment of the Hon’ble Apex Court in State of W.B .vs. Dinesh Dalmia reported in 2007 5 SCC 773 makes it abundantly clear that it is a condition precedent under Section 167 Cr.PC that the accused person must be in the custody of police and if the police officer finds that the investigation cannot be completed within a period of 24 hours fixed under Section 57 Cr.P and he is satisfied that the accusation or the information is well founded, the accused has to be forwarded to the Magistrate Court and the accused person thus forwarded can be detained and he can be remanded to judicial custody for a term not exceeding 15 days. The Hon’ble Apex Court in this judgment has made it very clear that a notorious criminal, who may have number of cases pending in various police stations may chose to notionally surrender before some Magistrate Court and adopt it as a device to avoid physical custody of the police and that such device adopted by the accused person cannot be permitted under Section 167 Cr.PC. It was made clear that the precondition under Section 167 Cr.PC is that the accused person must be in the custody of the police.
10.The concern that was raised by the learned SPP has to be attended since it has become a regular practice in this State for notorious criminals to commit serious offences and thereafter mislead the police by making some persons to surrender before different Magistrate Courts having no jurisdiction and invariably, one or two of those persons who surrender also happen to be juveniles. This Court must ensure that the criminal justice is not subverted by adopting these tactics and it is high time that the situation must be brought under control and some guidelines are issued by this Court.
Matter was adjourned under the caption ‘for passing final orders” on 8.3.2024 at 10.30 am.
Party
The State of Tamil Nadu Rep.by the Inspector of Police Otteri Police Station Tambaram. …Petitioner Vs. 1.Muneeswaran 2.Sathyaseelan 3.Sampath Kumar 4.Manikandan 5.Dinesh – Crl.OP.No.5577 of 2024 – 04.03.2024
https://hcmadras.tn.gov.in/order_view.php?fileName=MjAyNF8yMDEyMDAwNTU3NzIwMjRfMQ==
Part.1 – 04.03.2024 20240308_2012000557720241
Part.2 (08.03.2024)
Main order
Prayer
Criminal Original Petition filed under Section 482 of Criminal Procedure Code, to call for the records and quash the order dated 01.03.2024 passed in Crl.MP.No. 1519 of 2024 by the learned Judicial Magistrate, Sathyamangalam.
Earlier proceeding (04.02.2024)
This is a petition under Section 482 Cr.P.C filed at the instance of the State calling into question an order dated 01.03.2024 passed by the Judicial Magistrate, Sathyamangalam in Crl.M.P.No.1519 of 2024 accepting the surrender of four accused persons and remanding them to judicial custody under Section 167(2) Cr.P.C till 06.03.2024.
Facts
a. A gory incident took place on 29.2.2024, wherein the Deputy Chairman of Kattankulathur Panchayat Union was waylaid by six persons and brutally murdered, with the arms and legs of the deceased being chopped off. The accused persons also hurled a country bomb in the car in which the deceased was travelling causing extensive damage to the vehicle. It appears that these six persons had fled the scene thereafter. Mr. Jinnah, the learned State Public Prosecutor submitted that the deceased was brought dead on the same day before the Chromepet Government Hospital.
b. On a complaint given by one Sathyanarayanan, a case in Otteri PS Crime No 40 of 2024 was registered by the Tambaram Police on 29.02.2024 for the offences under Section 147,148,302 IPC, Section 3 & 4 of the Explosive Substances Act, and Section 4 of the Prevention of Damage to Public Property Act, 1984. In the complaint, the complainant has stated that he has witnessed the occurrence and can identify the 6 accused persons. Since the complaint did not disclose the names of the assailants, in Column No 7 of the FIR it is mentioned as “Six identifiable persons”.
c. On 01.03.2024, five persons surrendered before the learned Judicial Magistrate, Sathyamangalam and out of those five, one was a juvenile, aged about 17 years. It is not in dispute that the Sathyamangalam Magistrate Court falls within the Erode Sessions Division whereas the murder had taken place in Chromepet which is under the jurisdiction of the Chengalpet Sessions Division. It was also brought to my notice by Mr. Jinnah, learned State Public Prosecutor that four more persons had surrendered before the Judicial Magistrate, Srivilluputhur, in Virudhunagar District in connection with the said crime. Their surrender petition was accepted pursuant to which they were remanded to judicial custody. The juvenile (A5) was entrusted to the custody of two police constables with a further direction to produce him before the Juvenile Justice Board. A5 has, thereafter, been lodged in the observation home at Kellys, Kilpauk, Chennai.
d. The jurisdictional police station ie., the Tambaram Police had no clue about these developments. It is stated that the Tambaram Police had learnt of the surrender and subsequent developments from the newspapers.
Notice to the accused dispensed with
5. Heard Mr. Hassan Mohamed Jinnah, learned State Public Prosecutor. This Court also heard Mr. Mohanakrishnan, the President of the MHAA, who sought to intervene in the matter on behalf of the Bar and has also circulated detailed written submissions opposing the plea of the State. As this Court is not interfering with the impugned order dated 01.03.2024 permitting surrender, it 7 follows that the accused are not prejudiced in any manner. Notice to the accused is, therefore, dispensed with.
Grievance of the state
6. The grievance raised by the State is that in many grave offences the accused, who are often habitual criminals, adopt the tactic of surrendering before Judicial Magistrates having no territorial jurisdiction over the case and offer themselves for remand. Based on surrender petitions filed by the accused, Magistrates exercise power under Section 167(2) Cr.P.C to remand the accused. It was submitted that this was a clever device adopted by criminals to get themselves remanded to judicial custody under Section 167(2) thereby precluding police remand as by the time the jurisdictional police become aware of their surrender, the period prescribed under the proviso to Section 167(2) Cr.P.C would have started running. It was submitted that such undesirable practices have seriously impaired the statutory right of the police to effectively investigate cognizable offences under Chapter XII of the Cr.P.C, on account of which criminals have managed to escape from the clutches of the law.
Summary of the Judicial Magistrate order
8. From a reading of the order dated 01.03.2024, it is unmistakable that the Magistrate has passed the order exercising power under Section 167(2) Cr.P.C. It is not in dispute that the accused persons were not arrested and were not in the custody of the police at any time before 01.03.2024.
Questions of law framed
9. In this backdrop, the questions that fall for consideration are:
a. 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?
b. 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) Cr.P.C?
Practice of filing surrender petition
13. The practice of the accused filing surrender petitions directly before the Magistrate came to the notice of a Division Bench of this Court (M. Jaichandren and S. Nagamuthu, JJ) in Katturaja v State (2014) 1 MWN (Cri) 517. In that case, the accused were charged with a ghastly murder of four persons that had sent “shock waves through the State of Tamil Nadu”. A1 had approached PW-33 an Advocate who had requested the former to surrender before the Court. Though the crime was committed at Nanguneri in Tirunelveli District the accused had surrendered before the Magistrate at Madurai. S. Nagamuthu, J rightly pointed out:
“criminals have become clever and after the commission of an offence, some fake accused are made to surrender before some other Court thereby misdirecting the investigation. Those persons who have nothing to do with the crime are remanded to custody and thereafter, the Investigating Officer has to toil much to rule out the involvement of such persons, who surrendered before the Court. Quite naturally, this will weaken the prosecution case against the real culprits.”
The Division Bench noted that “the practice of entertaining surrender of accused before a Court, which has got no jurisdiction over the case, has been in vogue for decades” but expressed no opinion on the correctness or otherwise of the practice.
14. The matter was, however, fully considered in the subsequent decision of another Division Bench (S. Nagamuthu and V.S Ravi, JJ) in Ayyappan v State, 2015 SCC Online Mad 11389. Examining Sections 167 (1) and (2) Cr.P.C the Division Bench observed:
“A conjoint reading of sub-section (1) and sub-section (2) would, at the first blush, make it appear as though sub-section (2) could be invoked by a Magistrate provided the accused was arrested and forwarded to the Magistrate concerned. In other words, the impression is that the condition precedent for the Magistrate to authorise the detention of the accused is the arrest of the accused first.”
The Division Bench referred to paragraph 48 of the decision of the Hon’ble Supreme Court in Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 wherein it was held as follows:
“48. Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words ‘custody’ and ‘arrest’ are not synonymous terms. Though ‘custody’ may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalistic interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences.”
The Division Bench referred to the decision of a Full Bench of this Court in Roshan Beevi v. Joint Secretary, Government of Tamil Nadu, 1983 MLW 13 (Cri) 289, the decisions of the Hon’ble Supreme Court in Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559 and Sandeep Kumar Bafna v. State of Maharashtra, [2014] 4 SCALE 215, and held as follows:
“From the above judgements, it is crystal clear that an accused, by surrendering before a Magistrate, gets into the custody of the Magistrate and thereafter, the Magistrate concerned has to deal with him under Section 167(2) of the Code of Criminal Procedure. It is also crystal clear that such Magistrate before whom the accused surrenders need not be the one having territorial jurisdiction either to try or commit the case for trial. Irrespective of the fact whether he has territorial jurisdiction to try the case or to commit it to the court of session for trial, if the accused, in connection with any case under investigation, surrenders before a Magistrate on his own, the Magistrate has no discretion to refuse to accept the surrender of the accused before him for any reason.”
Importance of case diary during custody under section 167 Cr.P.C
16. In State v Anupam J Kulkarni, (1992) 3 SCC 141, the Hon’ble Supreme Court considered the close interrelationship between Sections 57 and Clauses (1) and (2) of Section 167 Cr.P.C and has observed as under:
“Now coming to the object and scope of Section 167 it is well settled that it is supplementary to Section 57. It is clear from Section 57 that the investigation should be completed in the first instance within 24 hours; if not the arrested person should be brought by the police before a Magistrate as provided under Section 167. The law does not authorise a police officer to detain an arrested person for more than 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate court. Sub-section (1) of Section 167 covers all this procedure and also lays down that the police officer while forwarding the accused to the nearest Magistrate should also transmit a copy of the entries in the diary relating to the case. The entries in the diary are meant to afford to the Magistrate the necessary information upon which he can take the decision whether the accused should be detained in the custody further or not. It may be noted even at this stage the Magistrate can release him on bail if an application is made and if he is satisfied that there are no grounds to remand him to custody but if he is satisfied that further remand is necessary then he should act as provided under Section 167. It is at this stage sub-section (2) comes into operation which is very much relevant for our purpose. It lays down that the Magistrate to whom the accused person is thus forwarded may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as he thinks fit for a term not exceeding fifteen days in the whole. If such Magistrate has no jurisdiction to try the case or commit it for trial and if he considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. The section is clear in its terms. The Magistrate under this section can authorise the detention of the accused in such custody as he thinks fit but it should not exceed fifteen days in the whole. Therefore the custody initially should not exceed fifteen days in the whole.”
Forward the accused with the case diary for custody is necessary
17. It would, therefore, be clear that Section 167(1) & (2) Cr. P.C are dovetailed and closely interlinked. Clause (1) of Section 167 applies when the accused is arrested and is in the custody of the police and the investigation cannot be completed within 24 hours, for it is only then the police are obliged to forward the accused together with the entries in the case diary to the Magistrate to authorize further detention. Detention under Section 167(2) Cr.P.C is authorized only when the accused is “forwarded” to the Magistrate in terms of Section 167(1). Section 167(2) does not contemplate detention pursuant to the accused voluntarily appearing before the Magistrate since the accused is not “forwarded” to such Magistrate in terms of Section 167(1) Cr.P.C. This position is now beyond all doubt in view of the decision in KA Rauf Sherif v. Directorate of Enforcement, (2023) 6 SCC 92, wherein it has been observed as under:
“15. An order under Section 167(2) of the Code had to be passed necessarily by the Magistrate “to whom an accused person is forwarded”. In fact, Section 167(2) contains the words “whether he has or has not jurisdiction to try the case”.
Therefore, the argument revolving around Section 167(2) of the Code also fails.” It must follow that a person who has not been forwarded and who voluntarily appears and files a surrender petition cannot be dealt with under Section 167(2) Cr.P.C.
Remand would be effected even the Magistrate has no jurisdiction
18. That apart, it is clear that remand under Section 167(2) Cr.P.C can be effected by a Magistrate whether or not he has jurisdiction to try the case. This is because the question of territorial jurisdiction is a matter falling under Chapter XIII in the context of inquiries and trials. It is also to be borne in mind that 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) Cr.P.C 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) Cr.P.C which enables the Magistrate to apply his mind and decide whether remand is really necessary.
Summary of Dinesh Dalmia
20. The scope of Section 167(1) and (2) and the provisos came up for consideration in State of W.B. v. Dinesh Dalmia, (2007) 5 SCC 773. The previous decisions in Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559 and Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 were noticed, and it was held as under:
“Sub-section (1) says that when a person is arrested and detained in custody and it appears that investigation cannot be completed within 24 hours fixed under Section 57 and there are grounds of believing that accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation not below the rank of SubInspector shall produce the accused before the nearest Judicial Magistrate. The mandate of sub-section (1) of Section 167 CrPC is that when it is not possible to complete investigation within 24 hours then it is the duty of the police to produce the accused before the Magistrate. Police cannot detain any person in their custody beyond that period. Therefore, sub-section (1) presupposes that the police should have custody of an accused in relation to certain accusation for which the cognizance has been taken and the matter is under investigation. This check is on police for detention of any citizen. Sub-section (2) says that if the accused is produced before the Magistrate and if the Magistrate is satisfied looking to accusation then he can give a remand to the police for investigation not exceeding 15 days in the whole. But the proviso further gives a discretion to the Magistrate that he can authorise detention of the accused otherwise than the police custody beyond the period of 15 days but no Magistrate shall authorise detention of the accused in police custody for a total period of 90 days for the offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and no Magistrate shall authorise the detention of the accused person in custody for a total period of 60 days when the investigation relates to any other offence and on expiry of the period of 90 days or 60 days as the case may be, and he shall be released if he is willing to furnish bail.”
Therefore, the reading of sub-sections (1) and (2) with proviso clearly transpires that the incumbent should be in fact under the detention of police for 19 investigation. In the present case, the accused was not arrested by the police nor was he in the police custody before 13-3-2006. He voluntarily surrendered before a Magistrate and no physical custody of the accused was given to the police for investigation. The whole purpose is that the accused should not be detained for more than 24 hours and subject to 15 days’ police remand and it can further be extended up to 90/60 days as the case may be. But the custody of police for investigation purpose cannot be treated as judicial custody/detention in another case. The police custody here means the police custody in a particular case for investigation and not judicial custody in another case. This notional surrender cannot be treated as police custody so as to count 90 days from that notional surrender. A notorious criminal may have number of cases pending in various police stations in a city or outside the city, a notional surrender in pending case for another FIR outside the city or of another police station in same city, if the notional surrender is counted then the police will not get the opportunity to get custodial investigation. The period of detention before a Magistrate can be treated as device to avoid physical custody of the police and claim the benefit of proviso to sub-section (2) and can be released on bail. This kind of device cannot be permitted under Section 167 CrPC. The condition is that the accused must be in the custody of the police and so-called deemed surrender in another criminal case cannot be taken as starting point for counting 15 days’ police remand or 90 days or 60 days as the case may be.”
Thus, it is crystal clear from the decision in State of W.B. v. Dinesh Dalmia, (2007) 5 SCC 773, that Section 167(1) requires detention by the police. However, this important decision which directly deals with the issue of remand arising out of IPC offences was very unfortunately not brought to the notice of the Division Bench in Ayyappan v State, 2015 SCC Online Mad 11389.
23. Keeping the aforesaid principles in mind, the decisions in Roshan Beevi v. Joint Secretary, Government of Tamil Nadu, 1983 MLW (Cri) 289, and the decision of the Hon’ble Supreme Court in Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440, Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559 and Sandeep Kumar Bafna v. State of Maharashtra, [2014] 4 SCALE 215 will now be examined.
Roshan Beevi vs. Joint secretary (1983 MLW (cri) 289) cannot be applied to IPC offences
26. The Division Bench in Ayyappan v State, 2015 SCC Online Mad 11389, has referred to paragraph 48 of the decision in Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440. A close reading of the aforesaid passage shows that the Hon’ble Supreme Court has relied upon the observations made in Roshan Beevi v. Joint Secretary, Government of Tamil Nadu, 1983 MLW (Cri) 289. This was because both Roshan Beevi and Deepak Mahajan were cases under the economic offences laws (Customs Act, 1962 and FERA, 1973) which is not the case here. In any event, as the Hon’ble Supreme Court has subsequently clarified in State of Haryana v. Dinesh Kumar, (2008) 3 SCC 222, the interpretation in Roshan Beevi v. Joint Secretary, Government of Tamil Nadu, 1983 MLW (Cri) 289 cannot be applied to prosecutions for IPC offences.
Origin of surrender Niranjan Singh judgment and its application only to section 439 Cr.P.C and cannot compare with section 167 Cr.P.C
27. The Division Bench has also referred to Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559, wherein Krishna Iyer, J had stated as follows:
“9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions.”
Unfortunately, the Division Bench has not noticed that the aforesaid observations were made by Krishna Iyer, J in the context of Section 439 Cr.P.C and not Section 167 Cr.P.C. The Division Bench while extracting paragraph 9 has missed the all-important preceding paragraph 8 wherein it is stated as follows:
“8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.”
Comparing Section 439 Cr.P.C to Section 167 Cr.P.C would be comparing chalk and cheese.
FIR or information from the IO is not enough to remand an accused but case diary is important
32. The decision in Ayyappan v State, 2015 SCC Online Mad 11389 envisages a situation where the accused walks into a Court with an FIR in hand (as in the instant case) or the IO supplying information which is then used as material to remand the accused under Section 167(2) Cr.P.C. I am afraid such material cannot form the basis on which an order of remand can be passed under Section 167(2) Cr.P.C. Such a procedure is illegal and is directly in the teeth of the judgment of the Hon’ble Supreme Court in Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314, wherein it was observed as follows:
“24. The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner.”
Unless the case diary and the remand report is transmitted to the Magistrate he would not be able to apply his mind effectively for remand
33. From the aforesaid, it is clear 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) Cr.P.C. 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.
Practice for decade surrendering before non-jurisdictional Magistrates is strange and dubious practice and severely deprecated
36. Mr. Mohanakrishnan, learned counsel who represented the Madras https://www.mhc.tn.gov.in/judis 32 High Court Advocates Association submitted that this practice of the accused voluntarily surrendering before the Magistrate and offering themselves for remand is followed only in Tamil Nadu and Puducherry. He added that this unique practice has been in vogue for several decades. This submission is noticed only to be rejected since there cannot be one set of laws functioning in Tamil Nadu and Puducherry and another set for the rest of the country. This strange and dubious practice of doubtful or non-existent legal ancestry is found only in this State and Puducherry and is perhaps unknown to the rest of this country. There is no iota of doubt that this specious practice has grown up only for the purposes of countering arrest and custody of the police by obtaining a remand before the Magistrate. This has been severely deprecated by the Hon’ble Supreme Court in State of W.B. v. Dinesh Dalmia, (2007) 5 SCC 773 wherein it is observed:
“The period of detention before a Magistrate can be treated as device to avoid physical custody of the police and claim the benefit of proviso to sub-section (2) and can be released on bail. This kind of device cannot be permitted under Section 167 CrPC..”
Final directions
40. In view of the above discussion, the criminal original petition is disposed of with the following directions:
a. Surrender petitions filed by the accused, who have voluntarily surrendered before a Magistrate having no jurisdiction to try the case, are not maintainable. No order of remand can be passed by the Magistrate under Section 167(2) Cr.P.C on such petitions, in the light of the decisions of the Hon’ble Hon’ble Supreme Court in State of W.B. v. Dinesh Dalmia, (2007) 5 SCC 773, Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314and KA Rauf Sherif v. Directorate of Enforcement, (2023) 6 SCC 92.
b. To be precise, in the context of cases concerning offences under the Indian Penal Code, 1860, a person accused of an offence, who has not been forwarded under Section 167(1) Cr.P.C, and who voluntarily appears and files a surrender petition before the Magistrate cannot be dealt with under Section 167(2) Cr.P.C.
c. Consequently, the period for the purpose of 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 he comes into the custody of the Court, upon being forwarded by the police under Section 167(1) Cr.P.C.
d. 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.
e. The discussion made, hereinabove, relates to matters arising out of offences under the Indian Penal Code, 1860. Though obvious, it is clarified that this Court has not expressed any opinion on the legal position arising in this case vis-a-vis economic offences under Special Acts like Customs Act, 1962, FEMA, 1999 etc.
f. The above directions shall be followed scrupulously by all Magistrates in the State of Tamil Nadu and Puducherry. The Registrar General is directed to place this order before the Hon’ble Chief Justice, and upon approval circulate a copy of this order to all Principal District Judges/Chief Judge, Puducherry who, in turn, will bring these directions to the immediate notice of the Magistrates in their respective Sessions Divisions.
Party
The State of Tamil Nadu Rep.by the Inspector of Police Otteri Police Station Tambaram. …Petitioner Vs. 1.Muneeswaran 2.Sathyaseelan 3.Sampath Kumar 4.Manikandan 5.Dinesh – Crl.OP.No.5577 of 2024 – 04.03.2024
https://hcmadras.tn.gov.in/order_view.php?fileName=MjAyNF8yMDEyMDAwNTU3NzIwMjRfMg==
Orders
main order 20240308_2012000557720242
Part.1 – 04.03.2024 20240308_2012000557720241
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