Point of Law: Meaning of ‘custody’ is that law has taken control of a person accused of an offence or suspected of commission of an offence.

ORDER :

The prayer in this Crl.M.C. is as follows:

“…. to direct the Judicial First Class Magistrate Court-VIII, Ernakulam, to positively consider the Annexure A4 surrender memo and Annexure A5 bail application filed by the petitioner/1st accused on a particular day that may be fixed by this Hon’ble Court.”

2. The petitioner is accused No.1 in Crime No.262/2023 of Maradu Police Station registered alleging offences punishable under Sections 451, 354, 323, 509 & 34 of IPC.

3. On 23.02.2023, the petitioner surrendered before the Judicial First Class Magistrate Court-VIII, Ernakulam, the Jurisdictional Court. He submitted a bail application along with a surrender memo. The bail application was numbered as Crl.M.P. No.862/2023. After hearing the learned counsel for the petitioner and the learned Assistant Public Prosecutor, the learned Magistrate refused permission to surrender before the Court. The learned Magistrate declined to consider the bail application moved by the petitioner, holding that the petitioner was not permitted to be in the custody of the Court. The learned Magistrate orally directed the petitioner to appear before the SHO concerned.

4. The course adopted by the learned Magistrate is under challenge in this Crl.M.C.

5. This Court obtained a report from the Court below. The learned Magistrate submitted that the petitioner had filed a surrender memo and bail application. Number was assigned to the bail application. The learned Magistrate further stated that he suggested the petitioner to appear before the SHO. In the report, the learned Magistrate concluded that as the petitioner was not permitted to be in the custody of the Court, the bail application filed by him was not taken into consideration.

6. Heard the learned counsel for the petitioner, the learned Public Prosecutor, and Sri. John S. Ralph, the learned Amicus Curiae.

7. The learned counsel for the petitioner contended that the act of the learned Magistrate refusing permission to the petitioner to surrender when he submitted to its jurisdiction is illegal.

8. The learned Amicus Curiae submitted that the course adopted by the Court below was incorrect. The learned Amicus Curiae further submitted, as per Sections 436 and 437 of the Cr.P.C., that 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 either release him on bail or remand him to custody. The learned Amicus Curiae relied on Niranjan Singh and Another v. Prabhakar Rajaram Kharote and Ors. [(1980) 2 SCC 559].

9. The learned Public Prosecutor submitted that the concern of the prosecution is only that the Police would not be deprived of getting the custody of the petitioner, if required, for the investigation.

10. The issue under consideration:

Can a Magistrate refuse permission to surrender to its jurisdiction to a person accused of an offence?

11. Chapter XXXIII of the Cr.P.C. deals with the Provisions as to Bail and Bonds, of which Sections 436 and 437 are relevant.

12. For convenience of reference, Sections 436 and 437 are extracted below:-

“436. In what cases bail to be taken. (1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:

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437. When bail may be taken in case of non-bailable offence.-(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

(i) such person shall not be so released if there