Joseph Thomas v. State of Kerala - 24 May 2023
The judiciary is an integral part of our legislation, without enforcement it
cannot be pertinent for a judiciary to exist in the society or in a nation. The
criminal law of the country has conferred different kinds of powers and
jurisdiction on the judicial officers. The citizens are hoped with s
coordination with society what if the judicial officers make an irregularity or
breach in the path of access of justice?
That is the only question which was
answered by the High court of Kerala in this case where the bail and surrendered
was denied by the judicial officer of the court to the respondent, where it was
again challenged through the appeal to High Court to consider as an irregularity
of the lower court.
Procedural History Of The Case
The history of the case can be traced from the court of Ernakulam, Kerala where
the respondent (now petitioner in this case) was convicted on the criminal
charges of Indian Penal Code 1860 under sections 354, 323, 451, 509 and 34 with
The case of the respondent was assigned to Judicial magistrate of
first class in the court of Ernakulam. The conduct of the judicial magistrate in
this court was challenged by the respondent in the high court of Kerala on the
ground of not abiding by the rules of criminal code of procedure, error and
In this case the respondent had made prayer to high court to direct the Judicial
First-Class Magistrate Court-VIII, Ernakulam, to positively consider the
Annexure A4 surrender memo and Annexure A5 bail application filed by the
petitioner/1st accused on a particular day that may be fixed by this Hon'ble
Facts Of The Case
The facts of the case may be summed up by the following points to understand the
analytical aspect and basic understanding of the case and pertained to find out
the legal issues and the possible inferences of the case.
Legal Issues In The Case:
- Primarily, the beginning of the case is initiated with the accused namely, Joseph Thomas's conviction by the Station House Officer (SHO) Maradu of the Maradu Police Station of the locality,
- In this case. the accused and other co-accused were apprehended under the charges of IPC sections 354, 323, 451, 509 and 34 for committing these offenses and brought before the district court Ernakulam for the trial.
- In the month of February 2023, the accused Thomas surrendered before the judicial magistrate of first class in court - 08 in his jurisdictional area of Ernakulam, wherein he approached with two applications, first as his bail application and second the surrender memo.
- The application of bail and surrender memo was refused and not permitted to accept by the judicial magistrate of first class after hearing the submissions of both sides and by stating the reason that the respondent is not permitted to be in the custody of the court and directed to the respondent to concern the SHO of the area.
- The action of the judicial magistrate in the previous fact was challenged by the respondent in the high court of Kerala as a civil miscellaneous petition.
- The report from the district court of Ernakulam was adopted by Justice K. Babu (the honorable judge of the high court and of this case) wherein the reasons and facts of refusal by the magistrate of Ernakulam court were stated.
- The learned Magistrate submitted that the petitioner had filed a surrender memo and bail application. Number was assigned to the bail application. The learned Magistrate further stated that he suggested the petitioner to appear before the SHO.
- In the report, the learned Magistrate concluded that as the petitioner was not permitted to be in the custody of the Court, the bail application filed by him was not taken into consideration.
The issues attracting the law provisions in the context of this above-mentioned
case may be pointed out by two sub- headings as follow:
Submissions From Petitioner
Being a strongest part in this case, the petitioner Thomas filed his submissions
through the advocates counsels Mr. T.N. Suresh and Miss Dhanuja:
- Can a magistrate refuse permission to surrender to its jurisdiction to a
person accused of an offense?
- Was the course adopted by the learned magistrate in this case valid ?
- The learned counsel for the petitioner contended that the act of the learned Magistrate refusing permission to the petitioner to surrender when he submitted to its jurisdiction is illegal.
- The learned Amicus Curiae submitted that the course adopted by the Court below was incorrect. The learned Amicus Curiae further submitted, as per Sections 436 and 437 of the Cr.P.C., that a person accused of an offence is at liberty to surrender before the Magistrate or the Court concerned.
- It was submitted by the petitioner counsels that when a person surrenders before the Magistrate or the Court, the course to be adopted is either release him on bail or remand him to custody.
- The learned Amicus Curiae relied on Niranjan Singh and Another v. Prabhakar Rajaram Kharote and Ors. [(1980) 2 SCC 559], where the accused was granted time for moving the session court for this purpose.
- With reference to the above-mentioned case, the term custody needs to be understood first as the basis of the disposal of this case.
--The broader meaning of 'custody' is that the law has taken control of a
person accused of an offence or suspected of the commission of an offence.
Submissions From Respondents:
Being on the weaker point of the case, the public prosecutor in the case made
submissions by stating the points mentioned:
Laws Attracted In The Case
- The public prosecutor on behalf of the respondent submitted that the main concern of the prosecution is uncertain, unclear, and not in the shadowed perspective of the law. The magistrates are empowered with such powers under the Indian law, and no consideration on such point is required.
- The public prosecutor submitted that the refusal by the judicial magistrate of the learned court to accept the bail application and surrender memo of the petitioner is a valid course.
- The main concern of the petitioner is only that the police will not be deprived of getting the custody of the petitioner, if required for the investigation, which is indeed an invalid and vague point on the part of the petitioners.
- It was also contended that the court, which has jurisdiction under the Code of Criminal Procedure, has the authority to neglect and refuse to accept the bail and memos of surrender, and judicial officers cannot be deprived of this, hence the petition needs to be dismissed.
- It was contended by the respondents that section 436 and 437 of the Code of Criminal Procedure are not standing fit as per the facts of this case, and prosecution needs to draw the attention of the court if any valid point exists as stated by amis curie in the submissions.
The laws attracted in this case for disposal of the case are- Section 436 and
437 of Criminal Code of Procedure & The Corpus Juris Secondum (Escape and
Related Offenses; Rescue)
For convenience of reference, Sections 436 and 437 are extracted below:
436. In what cases bail to be taken.
437. When bail may be taken in case of non- bailable offence.
- When any person other than a person accused of a non- bailable offence is arrested or detained without warrant by an
Crl.M.C.No.1638 of 2023 officer in charge of a police station, or appears or is
brought before a Court, and is prepared at any time while in the custody of such
officer or at any stage of the proceeding before such Court to give bail, such
person shall be released on bail:
- When any person accused of, or suspected of, the commission of any non- bailable
offence is arrested or detained without warrant by an officer in charge of a
police station or appears or is brought before a Court other than the High
Court or Court of Session, he may be released on bail, but:
- such person shall not be so released if there appear reasonable grounds
for believing that he has been guilty of an offence punishable with death or
imprisonment for life;
- such person shall not be so released if such offence is a cognizable
offence and he had been previously convicted of an offence punishable with
death, imprisonment for life or imprisonment for seven years or more, or he
had been previously convicted on two or more occasions of a [a cognizable
offence punishable with imprisonment for three years or more but not less
than seven years]:
The Corpus Juris Secondum (Escape and Related Offenses; Rescue): Volume 30A,
Pages 404 - 405 deals with custody in the following words:-
The meaning of custody within an escape statue varies depending on the context
in which it appears. A departure by a prisoner from mere custody constitutes the
crime of escapes and custody, within the meaning of statues defining the crime,
has been said to consist of the detention or restraint of a person against his
will, or of the exercise of control of one person over another to confine the
other person within certain physical limits, or of a restriction of ability or
freedom of movement.
This custody must be actual and not constructive; in any event it is necessary
and sufficient that there be actual or constructive custody in order to have
escape from that custody, but there must have been at least constructive
Judgment Of The Case
When the Code permits a person accused of an offence to surrender before the
Court having jurisdiction over the subject matter, it cannot refuse permission.
When an accused appears before the Court and applies for surrender, his prayer
shall be accepted.
When an accused surrenders before the Magistrate, the course to be adopted is
either to release him on bail or remand him to custody for investigation or for
any other purpose like keeping the prisoner safe.
The position may, however, stand differently if the accused surrenders before a
Court having no jurisdiction in the Crl.M.C.No.1638 of 2023 case. Then the
Magistrate may refuse to take cognizance of his surrender on the ground that he
has no jurisdiction in view of Section 56 of Cr.P.C.
In the present case, the petitioner/accused appeared before the Court and moved
a bail application. The petitioner has, therefore, surrendered before the Court.
The petitioner has voluntarily submitted to the jurisdiction of the learned
Magistrate. He came to be in judicial custody when he surrendered. The learned
Magistrate was wrong in concluding that the petitioner was not in the custody of
the Court when he voluntarily surrendered to its jurisdiction. The learned
Magistrate ought to have taken the petitioner in custody and dealt with him as
The Purpose And Reasons Of Judgement (Ratio Decidendi And Obiter Dicta)
- The terms custody, detention, or arrest have not been defined in the Cr.P.C. These concepts are cognate. Black's Law Dictionary, (9th Edition 2009), deals with the term 'custody' as follows:
- Custody - The care and control of a thing or person for inspection, preservation, or security. The broader meaning of 'custody' is that the law has taken control of a person accused of an offense or suspected of the commission of an offense. In Niranjan Singh and Another v. Prabhakar Rajaram Kharote and Ors. [(1980) 2 SCC 559], the accused appeared before the Magistrate and applied for bail.
- The Magistrate refused bail but did not remand the accused, granting time for moving the Sessions Court. While construing the term 'custody' within the meaning of Section 439 of Cr.P.C. in Niranjan Singh, the Supreme Court observed that: 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.
- In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court.
- This direction of the Magistrate was wholly irregular and maybe enabled the accused persons to circumvent the principle of Section 439 CrPC.
- We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrendering before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application.
- It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favor of the grant of bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submitted to the custody of the court.
- We, therefore, do not proceed to upset the order on this ground. Had the circumstances been different, we would have demolished the order for bail.
- We may frankly state that had we been left to ourselves we might not have granted bail but, sitting under Article 136, do not feel that we should interfere with a discretion exercised by the two courts below.
The course adopted by the learned Magistrate is found to be irregular.
The Social & Legal Impact Of The Case
Let's discuss the potential social impact of the case , which is Joseph Thomas
v. State of Kerala. While the case itself primarily deals with legal issues, its
outcome can have broader implications on society.
Here are some potential social
impacts of this case:
- Access to Justice and Fair Treatment: The case highlights the importance of ensuring that individuals have fair and equal access to the justice system. If the court had upheld the refusal to accept the surrender and bail application, it could have set a precedent where individuals might feel discouraged from seeking legal redress or surrendering voluntarily. This could result in a lack of trust in the justice system.
- Protection of Individual Rights: The case underscores the significance of safeguarding the rights of accused individuals. If the court had not intervened and allowed the surrender, it would have raised questions about whether the accused's rights to due process and legal recourse were being upheld. The judgment protects individual rights and emphasizes the principle of the rule of law.
- Trust in the Legal System: A fair and just legal system is vital for maintaining trust in society. When the legal system operates in a manner that ensures equal treatment and respect for individual rights, it enhances public confidence in the judiciary. The case's outcome reinforces the idea that the legal system is there to serve justice and protect the rights of all individuals, regardless of their status.
- Legal Precedent: The judgment in this case can serve as a legal precedent for future cases. If other courts face similar situations where surrender is refused, they may refer to this case as an example of how to interpret and apply the law.
- Public Awareness: High-profile legal cases often draw public attention. This case, by addressing the refusal to accept surrender and bail applications, may lead to increased public awareness of legal procedures and individual rights.
- Accountability of Judicial Officers: The case indirectly highlights the accountability of judicial officers. If a magistrate's actions are perceived as incorrect or unfair, it can lead to discussions about the role of judicial officers in upholding the law and ensuring justice is served.
While the case itself may appear to be a specific legal matter, its social
impact extends beyond the courtroom. It reinforces the principles of justice,
equality, and the rule of law in society, which are fundamental to maintaining a
just and fair legal system that benefits all members of the community.
Conclusion And Suggestions
The judgment in Joseph Thomas v. State of Kerala
sets a significant precedent in
affirming the principles of justice, fairness, and access to the legal system.
The court's decision to uphold the accused's right to surrender before a court
and be treated in accordance with the law is a testament to the rule of law and
This case reinforces the importance of a legal system that operates to protect
the rights of all citizens, irrespective of their circumstances. It underscores
the need for judicial officers to ensure that individuals seeking legal recourse
are treated with respect and in line with established legal procedures.
While this case pertains to a specific legal matter, its broader implications
are profound. It serves as a reminder that the legal system plays a vital role
in shaping the fabric of society, and it must continually adapt to changing
circumstances and evolving norms. The principles of justice, equality, and
individual rights are the cornerstone of a just and equitable legal system, and
this case reaffirms their importance.
In conclusion, Joseph Thomas v. State of Kerala
stands as an exemplar of the
legal system's commitment to ensuring access to justice, upholding individual
rights, and maintaining the trust of the public in the rule of law. It
reinforces the notion that the legal system exists to serve the cause of justice
and fairness for all members of society.
Written By: Vishal Banga
, Student of LL.M (Family Law) Guru
Nanak Dev University Jalandhar (Punjab)