Whether High Court under revisional jurisdiction should suspend the sentence of accused without his surrender or arrest?

15. We, therefore, answer the question referred to us as follows:

16. Though the High Court would not be justified in refusing to entertain the revision in the absence of the Rules for regulating listing of the revisions without surrender, it has powers to simultaneously ensure compliance with the provisions of Sections 353(5), 353(6) and Section 418 of the Code of Criminal Procedure under its inherent powers contained in Section 482 and in exercise of its supervisory jurisdiction under Section 397 read with Section 401 of Cr. P.C., and may suspend the sentence without the surrender or arrest of the accused, in its discretion.

 In the High Court of Bombay( Aurangabad Bench)

(Before Mangesh S. Patil and S.G. Chapalgaonkar, JJ.)

Criminal Revision Application No. 301 of 2022

Ikba and Another Vs State of Maharashtra and Others 

Decided on January 5, 2024, 

Citation: 2024 SCC OnLine Bom 43.

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Can the accused claim anticipatory bail after filing the charge sheet if it was open for him to surrender and apply for regular bail?

Petitioners who are the father-in-law and mother-in-law of

the deceased are sought to be prosecuted for the offences under

Sections 323, 498A, 304B, IPC read with section 3 & 4 of the Dowry

Prohibition Act. Before the charge sheet was filed, they were

granted anticipatory bail by this Court on 07.10.2020. In the said

order granting bail, this Court had observed that, after charge

sheet is filed, it is open for the petitioners to surrender and

apply for the Regular Bail before the Competent Court. After

filing the charge sheet, when application for grant of anticipatory

bail is filed, impugned order is passed based on the observation

made by this Court, in the earlier order.

Merely because it was kept open for the petitioners to

surrender and apply for Regular Bail after filing of the charge

sheet, the same does not preclude the petitioners to apply for

anticipatory bail under Section 438 Cr.P.C. after filing of the

charge sheet. It also cannot be said, that same is a second

application for grant of anticipatory bail as pleaded by learned

counsel appearing for respondents, on the same cause of action.

S U P R E M E C O U R T O F I N D I A

 Special Leave to Appeal (Crl.) No. 6057/2021

VINOD KUMAR SHARMA Vs  STATE OF UTTAR PRADESH 

Date : 16-11-2021 

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Whether accused can surrender and seek bail before high court if they had previously surrendered before the magistrate?

 In the present case, after rejection of bail by learned J.M.F.C.

vide Order dated 18th January 2021, applicants were granted interim

bail, in spite of the fact that learned Magistrate had taken the

applicants in Judicial custody. The applicants than by mincing words

had preferred bail application No.422/2021 before the Sessions

Court. It was titled as Second Bail Application under Section 439

Cr.P.C. It was stated that the applicants are now approaching the

Court (Sessions Court) for regular bail on the grounds stated therein.

It was also contended that it is the second regular bail application of

applicants. Thus, that was an application for regular bail without

being in custody nor it was stated that they are surrendering. After

rejection of the said application, the applicants have approached this

Court. This application is wholly misconceived and circumventing

principle of Section 439 of Cr.P.C. The applicants had surrendered

before learned J.M.F.C. on 18th January 2021. They were taken in custody. The applicants cannot prefer application for surrender and bail before this Court. This is clear case of abuse of process of law. {Para 24}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL BAIL APPLICATION NO. 718 OF 2021

 Kausalya Dnyanoba Dhemdhere Vs The State of Maharashtra

 

CORAM : PRAKASH D. NAIK, J.

DATE : 01st APRIL, 2021

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Whether Magistrate can refuse to accept the surrender of accused in bailable offence and direct him to surrender before investigating officer?

1) Heard the learned advocates appearing on behalf of the respective parties at length. The short question which is posed for consideration of this Court is whether in a case where the accused is involved in bailable offences and he applies for bail under Section 436 of the Code of Criminal Procedure and he appears and surrenders before the learned Magistrate, whether Magistrate is legally bound to release the Petitioners on ail or he has to appear and surrender before the concerned police officer and furnish the bail bond? Another incidental question which is posed for the consideration of this Court s whether mere receipt of FIR by the concerned Magistrate as required under Section 54 of the Code of Criminal Procedure would amount to proceeding before the Court so as o attract Section 436 of the Code of Criminal Procedure?

2)  Mr. Barot's reliance upon the said case for propoundings a proposition that receipt of the copy of the FIR should also be considered to be the stage of proceeding because the word 'proceeding' used in Section 436, is wide enough to include the proceedings other than the judicial proceedings is misplaced for the simple reason that even if the word "proceedings before a court" were to be construed in a wider sense and not in the restricted sense of judicial proceeding alone then also it would be necessary to have some proceedings before the court and mere receipt of the copy of the FIR by no stretch of imagination can be equated with a stage of proceeding judicial or otherwise. It is only for the sake of giving information to the Magistrate that the police is investigating such a case that the copy of the FIR is sent under Section 157 of the Code of Criminal Procedure. Therefore, the contention on behalf of the Petitioner that receipt of the copy of the FIR by the learned Magistrate should also be considered to be the "proceeding pending" before the learned Magistrate, cannot be accepted.

3) In the present case as stated herein above, no proceedings are pending before the learned Magistrate and therefore, Petitioner straightway cannot appear and surrender before the learned Magistrate and furnish the bail and request the Magistrate to release him on bail under Section 436 of the Code of Criminal Procedure. He has to appear and surrender before the police officer in charge of the police station and furnish the bail and as observed by the learned single Judge in the case of Ramesh Amritlal Chhatral (supra) and even otherwise considering Section 436 of the Code of Criminal Procedure, on giving/furnishing the bail by the accused, as required by the concerned police officer, an accused is entitled to be released on bail.

IN THE HIGH COURT OF GUJARAT

Special Criminal Application No. 2388 of 2010

Decided On: 02.12.2010

 Dinesh Babulal Thakkar Vs.  State of Gujarat

Hon'ble Judges/Coram:

M.R. Shah, J.

Citation: 2010 SCC OnLine Guj 13836,2011 CRLJ 1364, MANU/GJ/1459/2010

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Which case law is to be followed If two or more mutually irreconcilable decisions of the Supreme Court are cited?

A decision or judgment can be per incuriam any provision in a statute, rule or Regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Coequal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.{Para 15}
An earlier judgment cannot possibly be seen as per incuriam a later judgment as the latter if numerically stronger only then it would overrule the former. {Para 16}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 689 of 2014 

Decided On: 27.03.2014

Sundeep Kumar Bafna  Vs.  State of Maharashtra and Ors.

Hon'ble Judges/Coram:

K.S. Panicker Radhakrishnan and Vikramajit Sen, JJ.

Citation: AIR 2014 SC 1745,MANU/SC/0239/2014

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Supreme Court: Lower courts should not grant regular bail based on interim anticipatory bail

 When this Court or a High Court or even a Sessions Judge grants interim anticipatory bail and the matter is pending before that Court, there can be no occasion for the accused to appear and surrender before the learned Trial Court and seek regular bail. The predicament of the subordinate Judge in considering the prayer for regular bail and the impossibility of denial of such bail in the face of the pre-arrest bail granted by a higher forum is real. Surrender and a bail application in such circumstances is nothing but an abuse of the process of law by the concerned accused. Once a regular bail is granted by a subordinate Court on the strength of the interim/pre-arrest bail granted by the superior Court, even if the superior Court is to dismiss the plea of anticipatory bail upon fuller consideration of the matter, the regular bail granted by the subordinate Court would continue to hold the field, rendering the ultimate rejection of the pre-arrest bail by the Superior Court meaningless.

10. If this is a practice that is prevailing in some of the subordinate Courts in the Country and we have had notice of several such cases, time has come to put the learned subordinate Courts in the country to notice that such a practice must be discontinued and consideration of regular bail applications upon surrender during the pendency of the application for pre-arrest bail before a superior Court must be discouraged. We, therefore, direct that a copy of this order be forwarded to the Director of all Judicial Academies in the country to be brought to the notice of all judicial officers exercising criminal jurisdiction in their respective States.

IN THE SUPREME COURT OF INDIA

Special Leave to Appeal (Crl.) No. 2411 of 2016

Decided On: 03.03.2017

 Rukmani Mahato  Vs. State of Jharkhand

Hon'ble Judges/Coram:

Ranjan Gogoi and Navin Sinha, JJ.

Authored By : Ranjan Gogoi, Navin Sinha

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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. 

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Whether magistrate can refuse surrender of accused?

 From the above judgments, 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.

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. 

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How to calculate period for release of accused on default bail U/S167 of crpc in case of surrender of accused?

 In Chaganti Satyanarayana and others v. State of
Andhra Pradesh(1986) 3 SCC 141, it has been held by this Court that period
of ninety days under Section 167(2) of the Code shall be
computed from the date of remand of the accused and not
from the date of his arrest under Section 57 of the Code.
However, in the present case, we have to see the relevant
date as the date when the accused surrendered and
remanded by the court.
 In State of M.P. v. Rustam and others, this Court
has laid down the law that while computing period of ninety
days, the day on which the accused was remanded to the
judicial custody should be excluded, and the day on which
challan is filed in the court, should be included. That being
so, in our opinion, in the present case, date 5.7.2013 is to be
excluded and, as such, the charge sheet was filed on
ninetieth day, i.e., 3.10.2013.
Therefore, there is no
infringement of Section 167(2) of the Code.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMILAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.325 OF 2015

Ravi Prakash Singh @ Arvind Singh V State of Bihar

Citation;2015 ALLMR(cri)1230 SC

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Whether accused shall be deemed to be in police custody from the date when he has surrendered?

The accused was very well aware that there were two cases registered against him in Calcutta for which he was required by the Police, so he voluntarily surrendered before the Magistrate on 27th February, 2006 when he was already in custody in relation to the CBI case. Therefore, this voluntary surrender cannot be conceived to be detention under a case registered at Calcutta i.e.476/2002. Though knowing well that a requisition was sent by the Metropolitan Magistrate, Calcutta but in fact the physical custody of the accused was given by the Calcutta Police for investigation by the order of the Metropolitan Magistrate on 13th March, 2006. Therefore, so called notional surrender of the accused in the case No. 476/02 of Calcutta cannot be deemed to be a custody of the police for investigation for a case registered against the accused at Calcutta.. In fact the accused continued to be under the judicial custody in relation to the CBI case. It may be relevant to mention here that the CBI again took the accused in custody for scientific test and he was surrendered back on 10th of March, 2006 and on 11th March, the Calcutta police was given a custody of the accused by the Egmore Court, Chennai to be produced before the Magistrate in Calcutta on 13th March, 2006 and he was produced before the Calcutta Court on 13th March, 2006 and the Court directed the custody of the accused to the police on 13th March, 2006 for investigation in the criminal case registered against him in Calcutta. Therefore, the police custody will be treated from 13th March, 2006 and not from 27th February, 2006. In this back-ground, the view taken by the learned single Judge that since he voluntarily surrendered on 27th February, 2006, therefore, he shall be deemed to be under the police custody w.e.f. 27th February, 2006 is far from correct and 90 days shall be counted from that date only i.e. 13.3.2006. 

Supreme Court of India
State Of West Bengal vs Dinesh Dalmia, AIR 2007 SC 1801

Bench: A.K.Mathur, T Chatterjee
CASE NO.: Appeal (crl.) 623 of 2007

DATE OF JUDGMENT: 25/04/2007

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Whether Magistrate can make out more serious offence than offence for which accused has surrendered?

In the second place, when the petitioners surrendered before

the Magistrate, and invoked the Magistrate's jurisdiction, it was open for
the Magistrate to form a prima facie opinion, on the material placed before
him, as to what offence the petitioners are alleged to have committed. The
Magistrate was of the view that, an offence punishable under Section 67-A
of the I.T. Act was also disclosed, and this finding of the Magistrate was
invited by the petitioners themselves by surrendering before the
Magistrate. It is not possible to accept that, the petitioners were entitled to

surrender before the Magistrate invoking jurisdiction and make him form
an opinion on the merits of the matter, but that, the formation of such
opinion must be according to what the petitioners desire. Once they had
approached the Magistrate, they could not prevent him from forming an
opinion that, more serious offence or a different one, had been, prima
facie, committed by the petitioners.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.

Criminal Writ Petition No. 1236 of 2013
 Atul s/o. Manchakrao Jadhav,


versus
 The State of Maharashtra,

CORAM : ABHAY M. THIPSAY, J.
Citation;2015 ALLMR(cri) 257
DATE : 6TH JANUARY 2014

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