Friday, 7 July 2017

Procedure to be followed by magistrate if accused surrenders before him

 The immediate next question is, after the surrender of the accused, how he has to be dealt with under Section 167(2) of the Code of Criminal Procedure. Obviously, this provision deals with the power of the Magistrate having jurisdiction to try the case and also a Magistrate who has no jurisdiction either to try the case or to commit it for trial. A close reading of the first part of sub-section (2) of Section 167 would make it clear that the Magistrate before whom the accused surrenders, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as he thinks fit for a term not exceeding fifteen days in the whole. 
17- The latter part of sub-section (2) of Section 167 states that if the Magistrate who has no jurisdiction to try the case or to commit it for trial considers that his further detention is unnecessary, he may order the accused to be forwarded to the Magistrate having such jurisdiction. Here, the expression "unnecessary" needs to be emphasised. This expression employed in sub-section (2) of Section 167 would make it further clear that after the surrender of the accused, the Magistrate concerned, who has no jurisdiction to try the case or to commit it for trial, has to consider whether his further detention is necessary or unnecessary. If the said Magistrate finds that the detention of the accused is unnecessary, then as per the second part of sub-section (2) of Section 167, the Magistrate shall only order the accused to be forwarded to the Magistrate having jurisdiction without authorizing the further detention of the accused to any custody. But, as per the first part of sub-section (2) of Section 167, if the Magistrate has no jurisdiction to try the case and if he finds that detention of the accused is necessary, then, he has to authorise the further detention of the accused provided the investigation is pending. 
18- The next question is, as to how the Magistrate could decide whether the further detention of the accused is necessary or unnecessary. In this regard, we may say that this task does not involve any adjudication. It is only the prima facie satisfaction of the Magistrate concerned that matters. But, such prima facie satisfaction cannot be arrived at in vacuum. In order to arrive at such a satisfaction, the Magistrate needs some materials and from the materials or substances placed before him, he is required to arrive at a satisfaction as to whether the further detention of the accused who has surrendered before him is necessary or unnecessary. It may be argued that at that time the Magistrate may not have any material to authorise such detention. Though there is some force in the said apprehension, it cannot be simply said that it is correct. To illustrate, in the event, the accused, while surrendering before the court, produces a copy of the FIR or any other document relating to the case and the identity of the person concerned is also not in doubt, he may get a prima facie satisfaction that his further detention is necessary. Similarly, as soon as the surrender of the accused, the investigating officer or any other police officer acting on his instructions may inform the Magistrate that the person who has surrendered before the court is the one who was involved in the case and that may be suffice for him to get the satisfaction that his further detention is necessary. These situations are only illustrative and not exhaustive. On the contrary, if no material at all is available for the Magistrate to get the satisfaction that the further detention of the person who has surrendered before him is necessary, then, he has no option but to record that his further detention is unnecessary and so, he has to simply forward him to the jurisdictional Magistrate who has jurisdiction either to try or to commit the case for trial to the court of session. 
19- If the further detention of the accused is not authorised by the Magistrate having no jurisdiction to try or to commit the case for trial on the surrender of the accused, then, the period of detention for the purpose of police custody or for the purpose of proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure shall not start running from the date of surrender as the same shall start running from the date of remand order to be passed by the jurisdictional Magistrate. 
20- During the course of hearing, a doubt was raised that the Magistrate who has no jurisdiction over the case may find it practically difficult in forwarding the accused to the jurisdictional Magistrate because he may not know as to who the jurisdictional Magistrate is. The solution to this doubt is very simple. Under Section 12 of the Code of Criminal Procedure, the Chief Judicial Magistrate shall have jurisdiction through out the District and the Chief Metropolitan Magistrate shall have jurisdiction throughout the City. Therefore, the Magistrate before whom the accused has surrendered may forward the accused to the Chief Judicial Magistrate of the District wherein the case is under investigation or the Chief Metropolitan Magistrate, as the case may be, and the Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be, in turn, will forward him to the jurisdictional Magistrate in the District. 
21- It is true that when an accused surrenders before a Magistrate who has no jurisdiction, the investigating officer may not know that the accused had surrendered. As a result, by the time when he seeks police custody, the fifteen days initial period of remand may be over making it difficult for him to get police custody. In order to obviate this practical difficulty, we are of the view that as soon as accepting the surrender of the accused, the learned Magistrate shall forward an intimation to the Superintendent of Police of his District or the Commissioner of Police, as the case may be, and the said Superintendent of Police or Commissioner of Police shall immediately pass the information to the Superintendent of the other District within whose jurisdiction the occurrence had taken place and the said Superintendent of Police shall, in turn, immediately forward this information to the investigating officer of the case. Similarly, the learned Magistrate before whom the accused has surrendered shall send an intimation to the Chief Judicial Magistrate of the District in which the crime had taken place. 

22- It was also argued that when the Magistrate finds that the further detention of the accused is unnecessary and if he simply forwards him to the Magistrate having jurisdiction over the case, it may be difficult for him to get police escort. But, we do not think that the Magistrate may have such a difficulty because on his direction, the Superintendent of Police of the said District shall arrange for police escort to take the accused from the Magistrate's court to the Magistrate to whom the accused is forwarded. 
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 



 SERVICE BENCH No. - 258 of 1996 
 S.C.Shukla
v
 State Of U.P. 
Hon'ble Shri Narayan Shukla,J. 

Hon'ble Sheo Kumar Singh-I,J. 
Read full judgment here : Click here
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