S.K Phaujdar, J.:— The matter was heard yesterday in presence of Sri V.K Chaturvedi for the applicant, Sri Tej Pal for the respondent/complainant, and Sri Surendra Singh, learned A.G.A for the State.

2. Through this application under Section 482 Cr. P.C the applicant has made a prayer for taking her in judicial custody in case Crime No. 185 of 1997 corresponding to Case No. 1405 of 1997 relating to P.S Loha Mandi, District Agra, for offences under Section 498-A/304-B/201 I.P.C

3. The applicant, who is a woman, is said to be confined in S.N Hospital at Agra at present. She had made a prayer before the Chief Judicial Magistrate Agra, on 29.8.1998 making a prayer for taking her into judicial custody in terms of an order of the Supreme Court dated 27.8.1998

4. The applicant indicated that being a heart patient and suffering from a heart attack she had admitted herself in S.N Hospital on 21.8.1998 and was unable to move about due to her physical conditions and as such her being in the hospital and her filing the surrender application be accepted as her surrender in judicial custody. The Agra by his order dated 29.8.1998 observed that it was not a surrender at all and there was no prayer for deputation of a Magistrate. Accordingly the C.J.M observed that it was open for the applicant to appear in person before the court and then make a surrender, otherwise the surrender application could not be considered. The Supreme Court was approached in a Special Leave Petition by the complainant, Mohd. Isahaq, in which the accused persons including the present applicant were arrayed as respondents. The Apex Court directed that before considering the facts and circumstances of the case the accused-respondents were to surrender before the court concerned within four weeks and file proof of such surrender within two weeks thereafter. This order was passed by the Supreme Court on 27.7.1998 in S.L.P (Crl.) No. 1764 of 1998. Subsequently, the Supreme Court was informed on 3.9.1998 that one of the accused, viz. Smt. Rahmat Jahan (the present applicant) could not surrender due to her hospitalisation. The Supreme Court was also informed that a prayer was made on her behalf for treating her admission in the hospital as a surrender in court and that the court had rejected such prayer. The Supreme Court observed “If she is aggrieved thereby she may, if so advised, approach the High Court against rejection of her prayer and if approached the High Court will consider the same in accordance with law without being influenced by our earlier orders.’ Only after this, the present application has been filed.

5. The only question that arises for consideration is whether the application for taking the applicant in judicial custody while she was actually lying in the hospital would amount to surrender or not. The learned counsel for the complainant submitted that the applicant was quite hale and hearty and was not at all admitted in the hospital and the whole thing was a plea set up to defraud the court. The learned A.G.A submitted that once this court gives a ruling that surrender may be made even without physically appearing before the court, it would have a far-fetched effect on the criminal proceedings and it would go against the provisions of Section 437 Cr. P.C The learned counsel for the complainant relied on a decision of the Supreme Court in the case reported in 1998 Crl. LJ 2527. The Supreme Court had before it a question concerning true interpretation of Section 167(5) Cr. P.C (as amended in West Bengal). There was non-completion of an investigation for two years and a plea for discharge was raised. The court was confronted with the clause ‘made his appearance’ as appearing in sub-section (5) to Section 167 and it opined that it means physical appearance and not appearance by counsel. It was observed that the word ‘appearance’ in Section 167(5) cannot be understood different from the same word used in Sections 436 and 437 of the Code. In the concerned case, the respondent had not made his physical appearance before the Special Judge at any time before the charge-sheet was laid and hence there was no question of invoking the bar contemplated under Section 167(5) on the facts of that case.

6. The question that has been posed in this case requires a thorough understanding of the situation in the back-ground. Under the direction of the Supreme Court certain person is required to surrender before the court below. In common parlance surrender would, no doubt, mean appearing physically under the jurisdiction of the court awaiting further orders of the court. In the instant case, however, it is the plea of the applicant that she is bed-ridden in a hospital due to some heart ailment. She makes prayer in writing before the court that her being in the hospital be treated as her surrender and she may be taken in judicial custody. This prayer was rejected by the court because of absence of her personal appearance in the court room. ‘Surrender’, according to the dictionary meaning means ‘to yield oneself up’. In legal parlance it should mean ‘succumbing to the physical jurisdiction of the court, for action regarding the person who surrenders. Here is a person, who, for medical reasons, is unable to appear before the court in person, but she desires that her surrender be accepted and she may be taken in judicial custody. It is open for the court to ask the police officers, under a judicial order, to go to the hospital and to take charge of the person. It will be open for the court to see if really the ailment was of such a nature which would require her stay in the hospital or not, but that could be done only after accepting the fact of surrender. The person surrendering although was not physically present before the court has kept herself completely at the mercy of the court awaiting any judicial order for her further custody. We could envisage a case where in an encounter an accused is arrested in a seriously injured condition, in such a case he would be sent to the hospital first rather than to the court and a report to the court would be made explaining the situation and the court would in that case accept the forwarding of the accused to the court. It is certainly an exceptional case, but may not be an absolutely impossible one. Similarly, if a person is critically ill he or she should have the liberty to be in the hospital for treatment and then indicate to the court that she or he is succumbing to the jurisdiction of the court and further to indicate that she or he had kept herself or himself under the complete mercy of the court for further orders regarding her or his custody.

7. In my view, under the circumstances of the case, the court below should have accepted the surrender and should have issued necessary directions to the police officers to formally take the applicant in custody and keep her in watch at the hospital. After such surrender is accepted, it will be open for the court below to consider the reality of the plea of critical disease and to record an order accordingly.” The C.J.M is, therefore, directed to act in terms of the above observations.

8. The application stands disposed of.

9. Application Disposed of.