Principles laid down by Apex Court For Arrest and Surrender

Civil Law

Principles laid down by Apex Court For Arrest and Surrender

(9) That a Clever accused may even make an attempt to see that the evidence on his body in the shape of injuries or some other marks may not be detected by police and he may prefer to go to judicial custody solely with a view to conceal such evidence on his persons.

(10) It must also be borne in mind that in a given case the surrender may not be a bona fide one. The accused might be trying to create an alibi or it may be that instead of ‘X’, ‘Y’ might have presented himself before the Magistrate. The Magistrate at that time would have no means to identify the accused except with the assistance of an advocate who also ordinarily will not be in a position to identify the accused correctly. Further, mistaken identification by an advocate is not unknown and very probably such mistaken identification is not even considered to be professional misconduct or an offense.

Para 13: In view of the aforesaid considerations, though it is to be conceded that the Magistrate has the power to take an accused into his custody, this power ordinarily should not be exercised by him. Even when he is required to exercise this power, he must grant an opportunity of being heard by the police before directing the accused to be taken into judicial custody. If there be an extraordinary situation which may call for the protection of the accused and in the situation if the Magistrate feels that the accused cannot be protected unless he is taken into his custody, he may do so subject to the right of the police to pray for remand to the police custody and also to pray for interrogation of the accused. This would be in consonance with the underlying scheme of the Criminal Procedure Code.

14: But, in any case, he must see that this is not misused by the accused and the right of the investigating agency to interrogate the accused and to pray for his remand is not in any way affected. Therefore, initially, he may take any person into custody but that should be subject to the right of the investigating agency to pray or remand and to avail of any other right which may be available to investigating officer under the Criminal Procedure Code. If this is not done it would amount to unnecessary interference in the investigation and it would be taking away the right of investigation without affording an opportunity of being heard to the investigating officer.


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