Judicial Analysis Court Copy Headnote Facts Arguments Court observation

MADRAS HIGH COURT
N. Anand Venkatesh, J.
State of Tamil Nadu Rep. by
the Inspector of Police – Petitioner
versus
Muneeswaran and Ors. – Respondents
Crl.O.P No.5577 of 2024 and
Crl.M.P.Nos.4077 and 4078 of 2024
Decided on 8.3.2024

Advocates:
Counsel for the Parties:
For the Petitioners:Mr. Hasan Mohamed Jinnah, Public Prosecutor (State) Asst. by Mr. M. Leonand & Joseph Selvam and Mr. K.M.D. Muhilan, Government Advocate (Crl. Side)

IMPORTANT POINT
Remand of accused – Surrender petitions filed by 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.

Headnote:
(A) Criminal Procedure Code, 1973 – Section 167(2) read with Section 57 – Remand of accused – Detention under Section 167(2) Cr.P.C is authorized only when accused is “forwarded” to Magistrate in terms of Section 167(1) – Section 167(2) does not contemplate detention pursuant to accused voluntarily appearing before Magistrate since accused is not “forwarded” to such Magistrate in terms of Section 167(1) Cr.P.C. – Remand under Section 167(2) Cr.P.C can be effected by a Magistrate whether or not he has jurisdiction to try the case – Question of territorial jurisdiction is a matter falling under Chapter XIII in context of inquiries and trials – Section 167(1) contemplated forwarding of accused to “nearest” Judicial Magistrate – Such a Magistrate may or may not have jurisdiction to try the case – Nevertheless, Code empowers such a Magistrate to remand accused under Section 167(2) Cr.P.C as there is a vital safeguard in form of entries in case diary and remand report forwarded by police under Section 167(1) Cr.P.C which enables Magistrate to apply his mind and decide whether remand is really necessary. (Paras 17 and 18)
(B) Criminal Procedure Code, 1973 – Section 167(2) read with Section 57 – Constitution of India – Article 22 – Remand of accused – Words “whether he has or has not jurisdiction to try the case” appearing in Section 167(2) Cr.P.C are not standalone expressions – Word “jurisdiction” used therein refers to territorial jurisdiction of Magistrate – To satisfy commands of Section 57 Cr.P.C and Article 22 of 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 – Magistrate, irrespective of whether he has jurisdiction to try the case or otherwise, acquires legal jurisdiction to remand arrestee only on satisfaction of following conditions (a) that investigation cannot be completed within 24 hours (b) there are grounds for believing that information or accusation is well founded (c) transmission of copy of entries in case diary and (d) forwarding of accused to Magistrate by police – In absence of cumulative satisfaction of all of these conditions, Magistrate does not acquire legal jurisdiction to remand. (Para 38)
(C) Criminal Procedure Code, 1973 – Section 167(2) read with Section 57 – Remand of accused – Surrender petitions filed by 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 Magistrate under Section 167(2) Cr.P.C on such petitions – In context of cases concerning offences under 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 Magistrate cannot be dealt with under Section 167(2) Cr.P.C. – Period for the purpose of proviso to Section 167(2), period of 15 days police custody or 60/90 days custody will commence only from the date on which he comes into custody of Court, upon being forwarded by police under Section 167(1) Cr.P.C. – In the event accused voluntarily appears before Magistrate having no jurisdiction to try the case, it would be open to Magistrate to direct Station House Officer of nearest police station under his jurisdiction to take accused into custody and deal with him in accordance with procedure set out in Clauses (3) to (5) of PSO 559. (Para 40)
Result: Criminal original petition disposed of with directions.

ORDER

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.

2. The facts giving rise to this petition are as under:—

(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.

3. Given the aforesaid developments, the State Public Prosecutor had urgently mentioned the matter at 10:30 am on 04.03.2024 seeking permission to challenge the order dated 01.03.2024 passed by the Judicial Magistrate, Sathyamangalam in Cr.M.P 1519 of 2024. I had permitted the matter to be moved as a lunch motion on the said date and directed the Registry to call for the order. The impugned order reads as follows:—

“The Petitioners are voluntarily surrender before this court. Copy of Aadhar Card produced. Identification of the accused are verified. On perusal of the copy of FIR produced by the petitioner in Cr.No.40/2024 registered on the file of Otteri Police Station, Tambaram, in coloumn No. 7 of the said FIR, it is mentioned as “(matter in other language)” he petitioners name were not reflected in FIR and when i enquired the same with the petitioners, the petitioners are represented that the police officials are searching them and they visited their respective homes and enquired the whereabout of the petitioners with the family members of the petitioners when their absence and filed the affidavit. Head Clerk of this court directed to check with the concern Police Station and Head Clerk make an enquiry with the S.I of Police Namely Mr.Ravikumar through his mobile number 94981 3386