What Order Should be Passed by The Court, While Accused Surrender Before Court?
URVESHBHAI BALDEVBHAI PATEL
STATE OF GUJARAT & 2
Para 3.11: It appears that thereafter the accused persons went straight to the Sessions Court and filed an application stating that in view of the order passed by the High Court they be permitted to surrender and their bail application to considered appropriately.
3.12: It appears that on the very same day i.e. on 17/10/2014, the learned Sessions Judge passed a one line order which reads thus:
“To be taken in custody and sent to prison”.
Para 7: Having heard the learned counsel appearing for the parties and having gone through the materials on record a very complex question falls for my consideration. The question that falls for my consideration is whether the procedure adopted by the learned Session Judge could be said to be in accordance with law.
Para 19: In the present case what I find is that after the surrender of the accused was accepted by the Sessions Court pursuant to the order passed by this court, the learned Sessions Judge ought to have been little careful about the procedure which was adopted. It appears that the accused surrendered on 17/10/2014. They were straightway sent to the jail. The bail application was heard and rejected vide order dated 22.10.2014. In the meantime neither the Public Prosecutor nor the concerned Investigating Officer bothered to take any appropriate steps in accordance with law so far as claiming the custody of the accused for the purpose of seeking police remand was concerned. It is only on 3.11.2014 that the Police applied for remand before the JMFC, Gandhinagar, unmindful of the fact that the accused were not arrested and produced before the Magistrate under Section 167 of the Code.
Para 33: I may say that the Court, be it the Court of the Magistrate or the Court of the Sessions Judge before whom an accused appears in order to circumvent the provision regarding remand to the Police custody, the Courts must be very careful in accepting surrender as a bonafide surrender, and in the first instance, the Court should inform the police concerned with the investigation regarding the intention of such a person to surrender. If that is done, the difficulty of the police would certainly be met with. I am saying so keeping in mind the observations of the Supreme Court in the case of Sundeepkumar Bafna (supra), as contained in paragraph 20 of the report.