Introduction
The base of this [The State of Tamil Nadu Rep.by the Inspector of Police Otteri Police Station Tambaram. … Petitioner vs. 1. Muneeswaran] judgment is Ayyappan vs state in 2015 SCC Online Mad 11389 and the base of Ayyappan case (supra) is the article ‘Kill, Surrender & Get Remanded’ written by then the justice Madras High Court His Lordship Mr. Justice P.N.Prakash .
Is there any provision under the Cr.P.C for the word ‘surrender’? Yes.
One cannot say that there is no provision for ‘voluntary surrender’ in the Cr.P.C, but it may be said that not under sections 167, 436. 437 and 439 Cr.P.C inasmuch as section 444(3) Cr.P.C deals with ‘voluntary surrender’.
Despite my candid opinion on the Judgment analysis (to be found in the later stage of this article), my general opinion regarding section 167 Cr.P.C is what His Lordship has placed reliance on the following judgment, which was not only dealt with IPC offences so also PMLA offence (also we have to mention here, that the following judgment was argued by Senior Advocate (then the Lordship of Hon’ble Madras High Court) Thiru. Nagamuthu. The judgment is as follows:
“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.”
Legal issues and answers
Before going into the main issue, I want to answer the following questions that were asked/posed to me by the legal fraternities, which are intensely connected with the analysis of the judgment. Hence I will start answering the following questions first:
1. Whether an arrest could be made anywhere in India by the police? Yes, under sections 41 r/w 48 Cr.P.C.
2. Arrest: Why and when necessary?
Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his dis-appearance to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code [D. K. Ganesh Babu VS P. T. Manokaran – 2007 3 Scale 445=2007 4 SCC 434=2007 2 SCC(Cri) 345= 2007 1 MWN(Cri) 170].
3. When is it unnecessary?
Equivalently arrest shall not be for trivial manners: A person is enquired by the S.I who was on patrol for drinking tea near Shivaji university, Kolhapur. When the S.I find the answer suspicious has arrested the person and produced before the Special Executive Magistrate. Now, the S.E.M has released the person by obtaining a bond for ‘good-behaviour’ under section 116 Cr.P.C with rs. 4000/- bond which person arrested has complies. The argument of the state was ‘not giving satisfactory explanation’ for the enquiry is the cause for arrest. But, the Hon’ble Division Bench says that we are unaware that the law required anyone to give explanation for drinking tea whether noon or night. One might take tea in a variety of ways, not all of them always elegant and delicate, some of them are very noisy. Drinking tea in a suspicious manner is not a ground for arrest. Cutting chai is permissible but cutting corners of law is not [Vijay Lahu Patil vs. State of Maharashtra – Crl.W.P – 1627 / 2013 – Dt. 6.9.2013 [DB-Bom].
4. Whether the Judicial Magistrate can arrest? Yes – Section 44 Cr.P.C
5. Whether FIR can be filed anywhere in India? – Yes
Therefore, to say at the stage of investigation that S.H.O., Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction, is on the face of it, illegal and erroneous. That apart, Section 156(2) contains an embargo that no proceeding of a police officer shall be challenged on the ground that he has no territorial power to investigate [Satvinder Kaur vs. State (Govt. of N.C.T. of Delhi) and Ors – Crl. A. No: 1031 of 1999 – dt: 05.10.1999 – SC – (1999) 8 SCC 728].
6. Whether Complaint can be filed anywhere in India? Yes
It is an erroneous view that the Magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well…. Section 193 imposes a restriction on the court of sessions to take cognizance of any offence as a court of original jurisdiction. But any Magistrate of the First Class has the power to take cognizance of any offence, no matter that the offence was committed within his jurisdiction or not. The only restriction contained in Section 190 is that the power to take cognizance is subject to the provisions of this Chapter [Trisuns Chemical Industry v. Rajesh Agarwal and ors – Crl.A. No.950 of 1999 – September 17 1999 – 199 Supp 2 SCR 686 – But as per section 223 of BNSS 2023 it is changed].
Here, I have put forth the judgments above (5) & (6) before the readers because neither the Code nor the Hon’ble Supreme Court changed the context for registration of FIR by the police authorities or for entertaining complaints by courts.
7. Would Section 190 (1) (c) Cr.P.C come into play? No.
CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS – Section 190. Cognizance of offences by Magistrates:
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence–
a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
[read also section 44 Cr.P.C – Arrest by Magistrate: (1) or order any person to arrest]
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
Before going into the subject matter regarding section 190 (1)(c) Cr.P.C, let us first see what the Apex court has explained about ‘taking cognizance’…
7.1. What is meant by taking cognizance?
But, the expression “taking cognizance” has not been defined anywhere. The Hon’ble Supreme Court on many occasions, has declared that taking cognizance of offence means application of the judicial mind of the Judge with a view to take further action. If once he had applied his judicial mind and decided to proceed further, then the process of taking cognizance is complete [Madavan Appellant Vs The State rep by The Inspector of Police, All Women Police Station, Ariyalur District (Crime No.8/2015) – Crl.A.No.22 of 2017 – dt: 03.03.2017 (para.19)=2017(1) TNLR (cri) 869 (mad-DB)=2017 (1) LW(Crl) 698(mad-db)=2017 (2) MLJ(Crl) 129(DB)].
So, it is clear that taking cognizance means the application of judicial mind of the offence.
7.2. Problems on section 190(1)(c) Cr.P.C:
7.2.1. “Whether the difference of opinion or contrary opinion of the Learned Magistrate on the final report filed by the I.O amounts to section 190(1)(c) Cr.P.C” – This question was answered H.S. Bains Vs. State (Union Territory of Chandigarh) – 10.10.1980 – SC – AIR 1980 SC 1883 as follows:
In Abhinandan Jha and Ors. v. Dinesh Mishra, (supra) the question arose whether a Magistrate to whom a report under Section 173(1) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the Police. this Court held that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet. It was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3). If ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police the Court observed that the Magistrate could take cognizance under Section 190(1)(c)’. We do not have any doubt that the reference to ‘Section 190(1)(c)’ was a mistake for ‘Section 190(1)(b)’. That appears to be obvious to us. But Shri Kapil Sibal urged that the reference was indeed to Section 190(1)(c) since at that time Section 190(1)(c) included the words ‘or suspicion’ and the Court had apparently taken the view that the Magistrate could take cognizance of the offence not under Section 190(1)(b) as if on a police report but under Section 190(1)(c) as if ‘on suspicion’. We do not agree with this submission. Section 190(1)(c) was never intended to apply to cases where there was a police report under Section 173(1). We find it impossible to say that a Magistrate who takes cognizance of an offence on the basis of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion and not upon a police report merely because the Magistrate and the Police arrived at different conclusions from the facts [H.S. Bains Vs. State (Union Territory of Chandigarh) – 10.10.1980 – SC – AIR 1980 SC 1883].
so, it is clear by going through the aforesaid judgment that taking a contrary opinion on the final report does not mean ‘taking cognizance’ under section 190(1)(c) Cr.P.C.
7.2.2. Suppose a Magistrate/Judge finds out that there is some misappropriation or missing of articles (Material Objects) from ‘B’ room and subsequently finds out that the O.A with the help of the other staffs sold the ‘B’ article without the knowledge of the presiding officer. What will the Magistrate/Judge do?
[I open this issue to the readers, Please answer in the comment section].
7.2.3. Whether a person barges into the courtroom and inform the presiding officer (Magistrate/judge) with a bloodstained knife in one hand and a head of the deceased in the other hand. Whether the Magistrate can take cognizance on the information under section 190(1)(c) Cr.P.C? No.
One may argue that under section 190 (1)(c) Cr.P.C it has been written that “upon information received from any person other than a police officer” means a person, who barges into the court directly and gives information to the presiding officer about the offence he has done.
This argument does not make sense at all because it is the basic criminal jurisprudence that “confession is different from information,” i.e., what was written in section 190 (1)(c) Cr.P.C is ‘upon information’ and not ‘upon confession’. Needless to say, none of the sections under Chapter XIV Cr.P.C apply for confession.
Here, what the person [who had been barged into the courtroom with the bloodstained knife in one hand and the deceased head in the other hand] gives is a ‘confession’ and not the ‘information’ about the offence. No doubt true that the accused himself can give information about the commission of an offence, but he shall give the same only to a police officer under section 154 Cr.P.C and not before the Magistrate/ Judge, since the same would be treated as ‘confession’ within the purview of section 164 (2) Cr.P.C for which ‘forwarding’ the accused by the investigation officer is mandatory one [Jogendra Nahak and Others vs. State of Orissa And Others – (1999) 4 SCALE 425=(2000) 1 SCC 272 and Mahabir Singh vs. State of Haryana – AIR 2001 SC 2503].
Now what will the magistrate or judge would do in the above situation? The Magistrate has no other option but to inform the police about it. The police, in turn, have to take the steps envisaged in Chapter XII of the Code.
7.2.4. What is the trial to be conducted for section 190(1)(c) Cr.P.C? Chapter XIX – Trial or warrant cases by Magistrates:
A. Cases Instituted on a Police report.
B. Cases Instituted otherwise than on police report. (section 190(1)(c) Cr.P.C)
Here we may see that the trial conducts by the Magiatrate after taking cognizance under section 190(1)(c) Cr.P.C is as per ‘B’ of Chapter XIX Cr.P.C (cases instituted otherwise than on police report). This means even for the sake of argument if we agree that the Magistrate may take cognizance upon the confession under section 190(1)(c) Cr.P.C (by ignoring the word ‘information’) he must then proceed to act further and subsequent proceedings i.e., to Chapter V of Cr.P.C and not to the stage of custody under section 167 Cr.P.C nor directing police investigation u/s 156 (3) Cr.P.C. If the Magistrate takes cognizance by treating the offender as an ‘informant’ and the offence he put forth as ‘information’, even then the Magistrate cannot proceed to Chapter V of Cr.P.C inasmuch only the ‘complainant’ would be examined by the court under section 200 cr.p.c and not the ‘accused’.
Now as we have already seen the Magistrate would not direct for police investigation under section 156(3) Cr.P.C since the following paragraphs of a Hon’ble Supreme Court judgment clarify the present proposition:
“27. This court has further held that, prior to the filing of a petition under Section 156 (3) of the Cr.P.C., there have to be applications under Section 154 (1) and 154 (3) of the Cr.P.C. This court emphasizes the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156 (3) of the Cr.P.C. In as much as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law.
28. In the present case, we find that the learned Magistrate while passing the order under Section 156 (3) of the Cr.P.C., has totally failed to consider the law laid down by this court.
29. From the perusal of the complaint it can be seen that, the complainant/respondent No. 2 himself has made averments with regard to the filing of the Original Suit. In any case, when the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156 (3) of the Cr.P.C. The High Court has also failed to take into consideration the legal position as has been enunciated by this court in the case of Priyanka Srivastava v. State of U.P. (supra), and has dismissed the petitions by merely observing that serious allegations are made in the complaint” [Babu Venkatesh and others …Appellant (s) versus State of Karnataka and another …Respondent(s) – Criminal Appeal No. 252 of 2022 – February 18, 2022].
7.2.5. Whether Magistrate after taking Cognizance can revert back? No. However, if he once takes such cognizance and embarks upon the procedure embodied in chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of section 156(3) Cr.P.C [Madhao & another vs. State of Maharashtra – 2013(2) L.W (Cri) 51 (SC)=(2013)5 SCC 615].
Hence, if the proceedings are initiated as per Chapter XIV r/w Chapter XV of the Code, then there is no going back to section 167 Cr.P.C for arrest or custody, nor can direct investigation u/s 156(3) Cr.P.C. Of course, without any doubt, going to section 167 Cr.P.C or directing further investigation are available for the newly identified or informed offence(s) and not the earlier one in which the proceedings have already started.
so from the above analysis, the person who barges into the court cannot be treated as an informant or complainant and the court cannot take cognizance on that information (confession) or complaint except to hand over (informs) the offender to the nearest police station. Here the police would take his confession as FIR and proceed in accordance with the law.
8. Whether ‘or appears’ means surrender as per Cr.P.C., 1973? Definitely not:
If ‘or appears’ means not surrender then under what provision the accused who had been ‘voluntarily surrendered’ would be released on bail is the core question? Let us analyse:
8.1.: We cannot interpret ‘or appears’ with ‘surrender’: No connection between appears and surrender – (see section 436, 437, 439 r/w schedule-II form-1 ‘summons’ (for section 61 cr.p.c)). In other words when the draftsmen were drafting the Cr.P.C., 1973 they did not mean ‘appears means surrender, and when surrendered, bail may be given to the accused’ inasmuch as the concept of taking custody while surrendering himself (the accused) has emanated only from Niranjan singh’s case (Niranjan Singh v. Prabhakar Rajaram Kharote, judgment reported in (1980) 2 SCC 559) in the year 1980. Hence, readers have to read the word ‘appears’ available under section 437 Cr.P.C as if you were from the year 1973. Right, the intention of the draftsman to engraft ‘appears’ in sections 436, 437 and 439 is with the intention that when the accused ‘appears’ on the summons, he may be granted bail [In other words in the year 1973 the draftsmen intention was to grant bail to a person even if he is not under ‘custody’, but was summoned by the courts for any offence].
8.2 This Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 is the Judgment which empowers the Judicial Magistrate to arrest the person voluntarily surrenders before him and take him into the court’s custody. When the Hon’ble Supreme court empowers the Magistrate to take voluntary surrender, it does not connect ‘or appears’ with ‘surrender’. The following paragraph is self-explanatory where more than one places the Hon’ble Supreme court says appears or surrenders voluntarily. So, appears is the word in the Code under section 437 Cr.P.C (or in the other sections in that context) deals with only ‘appearance on summons’.
“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”.
8.3. If we can interpret the word ‘or appears’ with ‘surrender’ then we can also interpret the word ‘or appears’ even in the following way:
The words ‘or appears’ in sections 436 & 437 Cr.P.C want us think much intense. The words ‘or appears’ will operate only if a person is under the custody of law for any offence (once there is an order for summons to appear, then the concern person automatically comes under the custody of law). If such person who is under the custody of law wants to make a prayer for bail, but if he is restrict himself to appear before the court for some reasons (for instance apprehension of mufti polices would be present to arrest him) then, is there any alternative or option by instructing his counsel to ‘appear’ before the appropriate court on his behalf (as if there are wordings ‘duly instructed to appear’ is present under rule.27(4) of the Criminal Rules of Practice, 2019) and prays for bail? Does it also legal to the court at this stage to release the accused, by such appearance through his counsel? Absolute not.
Here, both interpretations are wrong. To this effect, I am substantiating my view with the following Hon’ble Supreme Court judgment in which this context has been dealt with in Souvik Bhattacharya … Appellant(s) versus Enforcement Directorate, Kolkata Zonal Office – ii …Respondent(s) [Criminal Appeal No. of 2024 (Arising out of SLP(Criminal) No.14476 of 2023) (Arising out of impugned final judgment and order dated 18-10-2023 in CRM(SB) No.164/2023 passed by the High Court at Calcutta) – 16th February, 2024]
The relevant paragraphs are as follows:
“10. As such Section 437 would come into play when the accused is arrested or detained or when the summons or warrant is issued against the accused for causing him to be brought or to appear before the Court. In absence of any order for issuance of summons or warrant under Section 204 or under any other provision of Cr.P.C., the summons could not have been issued or served upon the appellant nor he could have been arrested or taken into custody. The appellant-accused also appears to have filed the bail application before the Special Court under the misconception of fact and misconception of law, which application came to be dismissed by the Special Court. Though the said issue was not specifically raised by the appellant before the High Court, the said question being the question of law, we have permitted the counsel for the appellant to be raised in the instant appeal”.
Here, the Hon’ble Supreme Court has taken the matter as a question of law and held that if the accused ‘appears’ on the summons or brought before the court on ‘warrant’, only then he can apply for bail under section 437 Cr.P.C (kindly note that the Apex court did not speak about section 88 Cr.P.C). In other words, the Apex court has pronounced that if there is no summons for appearance then the accused cannot surrender himself for the custody of the court and claim bail under section 437 Cr.P.C.
It is even noticeable that the Hon’ble Supreme Court heavily took down the accused as a ‘misconception of fact and misconception of law’ who has voluntarily appeared (surrendered) before the Trial court [it is clear that the advocate who has advised him could have under the misconception that ‘or appears’ means surrender].
Right coming back to square one, here an important question arises, if ‘or appears’ is not ‘surrender’, then under what provision he would be released on bail? The answer is simple under section 437 Cr.P.C under the word ‘arrested’ (please note that we are confined only to section 437 Cr.P.C). Because, once a person is voluntarily surrendered before the court, he is being arrested first under section 44 Cr.P.C by the presiding officer and then he would be taken into the custody of the court. Hence, there is no embargo for the court to release him under section 437 Cr.P.C. Suppose, if the accused is apearing on summons and is not filing any voluntary surrender petition but only filing bail application, even now the court is empowerd to release him on bail inasmuch as ‘Niranjan Singh’ case is confined only to the apprehension of torture by the police officer.
9. When section 309(2) Cr.P.C would attract?
Only after cognizance has been taken (also read the head of the chapter which is self-explanatory).
The power of a court to direct re-remand of an accused either in terms of S.167 (2) or S. 309(2) Cr.P.C will depend on the stages of trial. Whereas S. 167(2) Cr.P.C would be attracted in a case where cognizance has not been taken, S. 309 (2) Cr.P.C would be attracted only after cognizance has been taken [Dinesh Dalmia Vs. C.B.I 2008 Cr.L.J 337 S.C].
The only section in the Cr.P.C. 1973, in which remand of ‘police custody’ can be authorised is s – 167 (2) of the aforesaid code. U/s – 167(2) of the code, an accused can be detained in police or judicial custody whereas u/s.309 of Cr.P.C, an accused can be remanded only to ‘judicial custody’ [Gauri Shankar vs State of Bihar 1972 Cr.L.J 505=AIR 1972 SC 711].
Further, the heading of CHAPTER XXIV GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS itself is self-explanatory as to why section 309(2) Cr.P.C will not be applicable during the stage of investigation or voluntary surrender.
10. Whether the accused surrender can be released under Section 88 Cr.P.C? No.
10.1. Madras High Court judgment on releasing an accused under section 88 Cr.P.C without obtaining bail in cheque cases, prevention of corruption and all summons and warrant cases (when the accused ‘appearing’ before the trial court on receipt of the summons) is as follows:
“13. In Private Complaint cases like prosecution under Section 138 of the Negotiable Instruments Act, the accused will appear on summons and the Court should take a bond from him under Section 88 Cr.P.C. The Honourable Supreme Court in Indian Bank Association and others v. Union of India [2014-2-L.W. (Crl.) 400 : 2014-4-L.W. 577 : 2014 (5)SCC 590] (A copy of the order has been circulated to all the Judicial Officers on the orders of the Apex Court) has directed the Magistrates to obtain a bond from the accused when he appears. Hereafter, all the Magistrates in the State are required to strictly follow the said direction issued by the Supreme Court. If on the first hearing, if the accused comes unprepared to furnish sureties for the bond, a reasonable time can be given to him to bring the sureties and execute the bond. We further direct that a bond under Section 88 Cr.P.C., should be taken in all cases, both summons and warrant cases, where an accused who has not been arrested and released on bail, appears before the Court on summons. This includes even cases under the Prevention of Corruption Act. If the accused absconds during Trial, he can be arrested in execution of non-bailable warrant and remanded to judicial custody and later released on bail. In such cases also he will be entitled to set off under Section 428 Cr.P.C. Therefore, it is necessary for the trial Court Presiding Officers to mention about all these aspects clearly in the judgment itself [Kumar vs. State of Tamil Nadu – M.P. Nos. 1 to 1 of 2014 in Criminal Appeal Nos. 1342 of 2004, 607 of 2005, 78 of 2006, 1040 of 2006, 396 of 2007 and 875 of 2007 – 22.09.2014 – (2014) 2 LW(Cri) 789 (DB)= MANU/TN/3212/2014 (DB)]”.
10.2. Section 88 Cr.P.C is not a right to any person:
Discretion given under section 88 to the Court does not confer any right on a person, who is present in the court rather it is the power given to the court to facilitate his appearance, which clearly indicates that use of word may is discretionary and it is for the court to exercise its discretion when situation so demands [Pankaj Jain vs. Union of India – 2018(1) MWN (Cri) 345 (SC)=(2018) 3 Scale 421=(2018) 5 SCC 743=(2018) 2 SCC(Cri) 867].
10.3. Section 88 Cr.P.C:
e) There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code [Satender Kumar Antil vs. Central Bureau of Investigation – Miscellaneous Application no: 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 & Anr – July 11, 2022].
One may ask, How would you say that an accused shall not be released by obtaining a bond under section 88 Cr.P.C? For a simple reason, no court, ‘even the Hon’ble Supreme Court’, cannot release an accused from custody invoking section 88 Cr.P.C since it has no ‘power’ to release.
Yes, I meant power. I know there are constitutional and inherent powers for the Hon’ble Supreme Court or High Court to release a person from custody, but, not by invoking section 88 Cr.P.C.
Now the power required to release a person in custody is to be ascertained from the sections only (through concern words). Let us restrict ourselves only to bail. If we examine sections 436 & 437 Cr.P.C we can find the words ‘shall be released on bail’ which empower the Magistrate/trial court to release a person from custody. Are there any such words under section 88 Cr.P.C empowering the Magistrate/court to release a person from custody? The answer is ‘NO’.
We have to understand that the law is based on logical conclusions, therefore, it is illogical to release a person by invoking section 88 Cr.P.C from custody, whereby the magistrate or trial court has no power to do it. Further, Chapter XXXIII states Provisions as to Bail and Bonds and not Provisions as to Bail or Bonds. Therefore, on the ‘appearance’ of the accused through summons, the provision to release him is only through bail and not by obtaining a bond under section 88 Cr.P.C.
Finally, the above issues though otherwise relevant to the analysis of the judgment need to be addressed and done accordingly.
Now let us analyze the judgment
What was the origin of ‘voluntary surrender’ before the Magistrates?
1. Niranjan Singh v. Prabhakar Rajaram Kharote judgment reported in (1980) 2 SCC 559;
[the main contention of His Lordship here is that this judgment deals ‘with ‘surrender’ but under section 439 Cr.P.C and not before Magistrates under section 437 Cr.P.C]
2. Directorate of Enforcement vs. Deepak Mahajan (1994) 3 SCC 440
[here, His Lordship has distinguished this judgment as other than IPC offences though dealt with custody is arrest];
Whether the custody based on voluntary surrender is ‘arrest’ by the magistrate? – Yes
The aforesaid decision of the Kerala High Court was followed by Ratnavel Pandian, J in Jagannathan v State, 1983 Cr.LJ 1748 in the context of discussing Section 167(5) Cr.P.C. However, this decision has been overruled in Japani Sahoo v Chandra Sekhar Mohanty, (2007) 7 SCC 394 which is acceded in Mrs. Sarah Mathew … Appellant Versus The Institute of Cardio Vascular Diseases by its Director – Dr. K.M. Cherian & Ors. … Respondents – CRIMINAL APPEAL NO.829 OF 2005 – NOVEMBER 26, 2013
[we must refresh our memory that Lordship has avoided Sarah Mathew’s case in para.11 in his judgment for the reason that the Sarah Mathew was decided based on the complaint case and not in IPC cases as held by His Lordship in A.Kaliyaperumal … Petitioner vs. 1.The Superintendent of Police Cuddalore District. 2.The Inspector of Police Ramanatham, Thittakudi Cuddalore District. … Respondent – Criminal Original Petition Nos.433 and 543 of 2024 and Crl.MP.No.372 of 2024 – 24.01.2024].
Of course, Jagannathan vs. state – 1983 Cr.L.J 1748 was overruled in Japani Sahoo in Limitation point and not in the point of “custody is arrest”.
His Lordship also has cited Ayyappan case and paragraph 48 of the decision of the Hon’ble Supreme Court in Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 in which 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.”
This Directorate of Enforcement vs. Deepak Mahajan Judgment is nothing but another form of Jagannathan v State, 1983 Cr.L.J 1748 since both the judgments were written by His Lordship Mr Justice S. RATNAVEL PANDIAN, J (then he was). Hence, it is clear that the Directorate of Enforcement (supra) has clearly empowered the Magistrate to accept the voluntary surrender by taking the accused into custody after arrest by the Magistrate. So, the custody here is after the arrest by the Magistrate.
Now, His Lordship has differentiated the judgments Deepak Mahajan and Roshan Beevi vs. Joint Secretary (1983 MLW (cri) 289) as not applicable to IPC offences. No doubt the Roshan Beevi case has been differentiated in State of Haryana v. Dinesh Kumar, (2008) 3 SCC 222 (para. 25). But in the same paragraph Hon’ble Supreme Court has held as follows:
“The position is different as far as proceedings in the court are concerned in relation to enquiry into offences under the Indian Penal Code and other criminal enactments. In the latter set of cases, in order to obtain the benefit of bail an accused has to surrender to the custody of the Court or the police authorities before he can be granted the benefit thereunder”.
Even as per the research and reasoning of His Lordship here, the Apex Court in Dinesh Kumar case (supra) did not discern the surrender only to the Jurisdictional Magistrate.
Whether section 167 Cr.P.C could be used/distinguished with the nature of offences? No
Now the main issue arises as to whether section 167 Cr.P.C could be used or distinguished as to the nature of offences (IPC, Prevention of Corruption, NDPS e.t.c…). The answer is categorical ‘NO‘, which can be easily inferred from the judgment of Hon’ble Supreme Court Judgebir Singh @ Jasbir Singh vs. National Investigation Agency – Crl. Apl. No: 1011 of 2023 dated: MAY 1, 2023:
In the aforesaid judgment while the Hon’ble Supreme Court dealing with section 167 Cr.P.C and sanction has held as follows which is the answer for the present issue:
“26. In the earlier Code of Criminal Procedure, 1898 (for short, ‘the CrPC, 1898’), Section 167 laid down the procedure to be followed in the event the investigation of an offence was not completed within 24 hours. Section 167 in the CrPC, 1898, was premised on the conclusion of investigation within 24 hours or within 15 days on the outside, regardless of the nature of the offence or the punishment.
27. The Law Commission of India, in its Forty-first Report, recommended increasing the time-limit for completion of investigation to 60 days. The new CrPC gave effect to the recommendation of the Law Commission. Section 167 as enacted provided for time-limit of 60 days regardless of the nature of offence or the punishment”.
Therefore, there is no need to distinguish section 167 Cr.P.C concerning the nature of offences. Any judgment (which is not overruled) speaking of ‘custody equating the arrest’ though not dealt with IPC offences can be used for any offences including IPC offences. In other words, using Roshan Beevi vs. Joint secretary (supra) and Directorate of Enforcement vs. Deepak Mahajan (supra) for IPC offences does not create any anomaly in the concept of ‘arrest by the non-jurisdictional Magistrate and taking him into custody’ on his voluntary surrender.
Distinguishing para.8 of Niranjan Singh’s judgment
While distinguishing the Niranjan Singh v. Prabhakar Rajaram Kharote judgment reported in (1980) 2 SCC 559 His Lordship has placed reliance in the following paragraph:
“8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438 cr.p.c) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.”
In para.8 of the Niranjan Singh (supra), quoting section 438 cr.p.c is necessary and correctly quoted by the Apex court for the simple reason the person who has voluntarily surrendered into the custody of the court cannot confuse himself and ask for Anticipatory bail since he is already under the custody of the court. Here the reason being that a person who is already in legal custody cannot ask for Anticipatory bail.
Also, we can distinguish the aforesaid paragraph as we like and may fit it into our reasonings. Of course, in paragraph. 8 the Supreme Court also did not say as follows:
“we are not, be it noted, dealing with bail under sections 167 or 437 Cr.P.C”.
Regarding entries in the diary of the police
Regarding case diary yes, it is necessary while transmitting the accused entries in the diary is necessary. It is important to note that ‘transmitting’ is the ‘phrase’ the draftsman used.
Suppose if an accused is detained by the police the police will have his own entries in his diary regarding the detention and other aspects (including any investigation on the crime). Along with the entries in the diary ‘transmit’ the accused to the nearest magistrate who has or has no jurisdiction. Here again, note the word ‘transmit’ and do not forget.
Right, in a case where an accused is voluntarily surrenders (since the power to accept his custody to the magistrate had been given by the Hon’ble Supreme Court) before the non-jurisdictional magistrate, he will now take the accused into custody and may order the accused to be forwarded to the jurisdictional magistrate for further custody. Now the entries in the case diary are not necessary to the jurisdictional magistrate since the notes papers (or entries in the notes papers) of the non-jurisdictional Magistrate are very much available to the jurisdictional Magistrate.
Detention by the police under section 57 and making entries to that effect is identical to the non-jurisdictional Magistrate taking custody of a person who voluntarily surrenders before under section 167 Cr.P.C (where an arrest is inbuilt) and making entries in his/her notes paper. Hence, the Notes papers of the Non-jurisdictional Magistrate who is ‘forwarding’ the accused are on a higher pedestal than the ‘entries in the diary’ of the police officer who is transmitting the accused.
It is pertinent to note that the Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314 deals with post-detention of the accused by the police in IPC offences and not in voluntary surrendering of accused before the jurisdiction or non-jurisdictional Magistrate.
What if the petitioner surrenders before the Hon’ble High Court and pleads for bail? Sundeep Kumar Bafna vs. State of Maharashtra and another – (2014)4 SCALE 215=(2014)16 SCC 623=AIR 2014 SC 1745.
My doubt in practising point of view [I request the Learned Advocates may answer in the comment section]:
Though His Lordship has restricted this judgment only to Magistrate Court and section 437 Cr.P.C there are special courts like Prevention of Corruption in the cadre of CJM which deals with offences only under P.C Act but in the cadre of Magistrates (or Economic Offences Courts), though District judges are sitting in the cadre of either CJM or CMM). I am very much aware that His Lordship clarified in conclusion (e) that he has not expressed any opinion, but the practice is Section 439 Cr.P.C cannot be invoked in those courts, and only section 437 Cr.P.C is being invoked for bail applications in those courts. If this judgment is restricted to IPC offences, then without any prejudice to the reasonings (fake surrender, case diary e.t.c..) in the judgment, whether the courts can accept voluntary surrender even if they do not have jurisdiction to try the case?
My candid opinion is that the non-jurisdiction Magistrate may accept the voluntary surrender for the following reasons
1. There is no embargo to treat the ‘custody’ as ‘arrest’ or ‘custody after arrest’ by the Magistrates while the accused voluntarily surrenders before the non-jurisdiction Magistrates as per Niranjan Singh v. Prabhakar Rajaram Kharote, judgment reported in (1980) 2 SCC 55; Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 as clarified in this article,
1.2. Further, the non-jurisdictional Magistrate is not obliged to ask/direct/inform the SHO of the nearest police station to take the person into police custody unless the Magistrate is asked for police custody. Here, the courses open to the Magistrate are either to continue the court custody of the accused or may release him on bail. The Magistrate cannot inform about the cognizable offence (as if commited by the person who has voluntarily surrendered) to the SHO under section 154 Cr.P.C, for the simple reason, once the person voluntarily surrendered before the non-jurisdictional Magistrate the custody of that person is already effected as per Niranjan Singh case (supra). In other words, any body can inform about the cognizable offences to the SHO as per section 154 Cr.P.C only when the accused person is “not” in custody by the court. If the person accused of cognizable offence is already under the custody of the court, then irrespective of jurisdiction, the SHO cannot arrest the accused person, but can only ask for police custody for the purpose of investigation’;
1.3 Since the Hon’ble High Court has “empowerd” the non-jurisdicitonal Magistrate to direct the Station House Officer of the nearest police station under his jurisdiction to take the accused into custody [(d) of final directions], now, the question arises here is, whether the Investigation Officer who had been directed by the Magistrate would write the name of ‘Magistrate’ as the ‘informant/complainant’ in the First Information Report (diary prescribed by the state government)?
2. Section 167 Cr.P.C does not restrict itself to IPC offences ‘only’ as per the dictum of Hon’ble Supreme Court in Judgebir Singh @ Jasbir Singh vs. National Investigation Agency – Crl. Apl. No: 1011 of 2023 dated: MAY 1, 2023;
3. While forwarding the accused to the Jurisdictional magistrate there are still available ‘entries in notes papers’ of the non-jurisdictional Magistrate which is higher pedestal than the ‘entries in the case diary’ maintained by the SHO and hence the Jurisdictional Magistrate may apply his judicial mind even better for further remand;
4. Still the date of custody before the Jurisdictional Magistrate may be calculated from the date of voluntary surrender to the non-jurisdictional Magistrate, inasmuch the term ‘forward’ is being complied with;
5. 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.”
Yes, though this observation indeed speaks about ‘forwarding’ is necessary, we do not forget that the non-jurisdictional magistrate after making his arrest and taking custody (as per Deepak Mahajan case (supra)) of the accused under section 167 (2) irrespective of offence, is actually, ‘forwarding’ the accused to the jurisdictional Magistrate along with the ‘entries in his/her case notes’ noted by him/her for ‘further detention’ for which no bar under section 167(2) Cr.P.C.
So, I stop with this, and I left for your feedback.
Yours,
Ramprakash Rajagopal
Advocate, Tamilnadu,
Further study
