Report No. 37
201. Section 59A (New).-
A new section is proposed regarding giving to the arrested person full particulars of the offence.1
1. See discussion under section 54, supra.
202. Section 59B (New).-
The following suggestion1 has been made by a High Court:
"Arrests of respectable agriculturists and men in other walks of life are made in connection with prohibition offences etc. It has been found that the people have been practically condemned to remain in police custody without getting themselves released on bail promptly. Also, this is done very often to degrade these persons in the eyes of the public and for other unlawful reasons which need no specification but can readily be guessed. The abuse can be prevented only if it is made obligatory on the part of the police officer to give reasonable time for arrangements to be made for bail before the arrested person is removed etc. Much of the discontentment against the lower ranks of police will be removed if this provision is enacted." Accordingly, the High Court has suggested the insertion of the following sections:-
"54A. (1) Where a police officer effects an arrest without a warrant of any person accused of a bailable offence, it shall be obligatory on the part of the officer to inform the person arrested that the offence with which he or she is charged is bailable and that the accused may arrange for sureties to offer bail on his or her behalf
(2) The police-officer shall wait for a reasonable time for such arrangement to be made, before removing the concerned person to the station."
The State Government concerned found the reasons convincing, and supported the amendment.
We discussed the suggestion at length. In our view, only the first part of the suggestion may be accepted. A provision requiring the police to wait may create complications. We also think, that the proposed provision should be placed after section 59.
Necessary amendment is recommended.2
1. F. No. 3(2)/55 L.C., Pt. III, S. No. 252.
2. See section 59B (Proposed).
203. Section 60.-
As to section 60, the "Magistrate" referred to in the section will be-
(a) the Judicial Magistrate, in the case of arrest for an offence;
(b) Executive Magistrate, in other cases. It is not, therefore, necessary to qualify the expression "Magistrate".
204. Section 61.-
In section 61, the following points have been considered:-
(i) The opening part of the section should be changed so as to begirt-"No person who has been arrested without warrant shall be detained." This change appears to be desirable, in order to bring the section into conformity with Article 22(1) of the Constitution.
(ii) It is unnecessary to add the word "Judicial" before the word "Magistrate" in the middle part of section 61. Whoever is the Magistrate competent under section 167 will be the "Magistrate" referred to in this section.
205. Section 62-whether changes necessary for Presidency towns.-
Section 62 requires the police to send certain reports. The section need not be extended to Presidency towns. In these places, the matter would be taken care of by the local Act relating to police.1
1. Cf section 96, Bombay Police Act, 1951.
206. Section 62-competent Magistrate outside Presidency towns.-
In other places (i.e., outside Presidency towns), the reports under section 62 should be sent to the District Magistrate etc. The object of the report is to keep the District Magistrate etc. informed of the situation regarding grave offences. It is, therefore, unnecessary to substitute "Chief Judicial Magistrate". (We find, that no such changes have been made in Bombay and Punjab).
A suggestion to keep the power under section 62 with Judicial Magistrates,1 has been considered by us, but we are unable to accept it.
1. F. 3(2)/55-L.C., Pt. I, S. No. 49.
207. Section 63.-
In section 63, after the word "Magistrate", the words "having jurisdiction" should be added, as in the Bombay and Punjab amendments.
208. Sections 64 to 67.- No changes are needed in sections 64 to 67.
209. Section 65 and issue of warrant.-
Regarding section 65, certain changes have been suggested by two Judges of a High Court1-2 which, in effect, would empower a Magistrate to issue a warrant without taking cognizance of the offence. This, we are afraid, would conflict with section 204(1). Taking cognizance of an offence must precede the issue of a warrant. There may be provisions to the contrary which usually appear in special laws.3 But, in the absence of such special provisions, the scheme of the Code seems to contemplate cognizance as a step prior to the issue of a warrant by a Magistrate.
We are aware, that there is a decision to the contrary,4 but we regret that we are, with great respect, unable to agree with the view that a Magistrate can issue a warrant (for the arrest of the person who could be arrested without warrant under sections 54 and 55) without taking cognizance.
1. F. 3(2)/55-L.C., Pt. I, S. No. 49.
2. F. 3(2)/55-L.C., Pt. II, S. No. 33(b).
3. Cf. R.R. Chari v. State of Uttar Pradesh, (1951) SCR 312: AIR 1951 SC 207.
4. L. Ram Narain Singh v. A. Sen, AIR 1958 All 758 (760).
210. Sections 66-67.- Sections 66-67 need no change.