Code
(1) The Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court:
Provided that, if the offence is bailable, and such person is ready and willing to give bail to the satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction has been endorsed under section 71 on the warrant and such person is ready and willing to give the security required by such direction, the Magistrate, District Superintendent or Commissioner shall take such bail or security, as the case may be, and forward the bond, to the Court which issued the warrant:
Provided further that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial Magistrate (subject to the provisions of section 437), or the Sessions Judge, of the district in which the arrest is made on consideration of the information and the documents referred to in sub-section (2) of section 78, to release such person on bail.
(2) Nothing in this section shall be deemed to prevent a police officer from taking security under section 71.
STATE AMENDMENT
Uttar Pradesh
In section 81 of the said Code, in sub-section (1), the following third proviso shall be inserted, namely :—
“Provided also that where such person is not released on bail or where he fails to give such security as aforesaid, the Chief Judicial Magistrate in the case of a non-bailable offence or any Judicial Magistrate in the case of a bailable offence may be necessary for his removal to the court which issued the warrant.”
[Vide Uttar Pradesh Act 1 of 1984, s. 9]
Explanation
When a person is arrested, they must be brought before a Magistrate within a specified time. The Magistrate then has to:
- Inform the accused of the grounds for their arrest. This includes informing them of the specific offense they are accused of.
- Allow the accused to engage legal counsel. The accused has the right to consult with a lawyer and have them represent them in the proceedings.
- Inquire about the legality of the arrest. The Magistrate must ensure the arrest was conducted lawfully and according to the provisions of the CrPC.
- Decide whether to release the accused on bail or remand them to custody. The Magistrate will consider the nature of the offense, the likelihood of the accused fleeing, and other relevant factors when making this decision.
- Order an investigation into the case. The Magistrate may initiate an investigation into the alleged offense, which may include directing the police to gather evidence and conduct further inquiries.
Illustration
Suppose a person is arrested for theft. They are brought before a Magistrate. The Magistrate will inform the accused of the theft charge, allow them to engage legal counsel, and inquire about the legality of the arrest. The Magistrate will then decide whether to release the accused on bail or remand them to custody. If remanded, the Magistrate will also order an investigation into the alleged theft.
Common Questions and Answers
Q: What happens if the accused is not brought before a Magistrate within the specified time?
A: The arrest may be deemed illegal, and the accused can be released on bail.
Q: Can the Magistrate release the accused on bail without the accused’s request?
A: Yes, the Magistrate has the discretion to release an accused on bail even if the accused does not request it.
Q: What are the factors that the Magistrate considers when deciding whether to grant bail or remand the accused?
A: The Magistrate considers the nature and severity of the offense, the likelihood of the accused fleeing, the possibility of the accused tampering with evidence, and other relevant factors.
