Criminal Law : Legal Principles of Custody and Surrender of Accused Prior to Conviction

Criminal Law : Legal Principles of Custody and Surrender of Accused Prior to Conviction

In an interesting case issue of surrender of accused was discussed. Recently, an FIR was lodged at Bhopal but accused tried to surrender in Jabalpur ; however, Magistrate at Jabalpur has refused to allow the accused to surrender.

The law was explained in Ayyappan v. State [2015] GCtR 6673 (Madurai, Madras).

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. 

He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions.

 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, 1973. 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.