Arrest and Pre-Trial Detention –Role of a Judge/ Magistrate

by
SREENU M
Principal Junior Civil Judge,
Rayachoti

Introduction:

“A major problem of human society is to combine that degree of

liberty without which law is tyranny with that degree of law without which

liberty becomes license”1

No person shall be deprived of his life and liberty except according to

procedure established by law2. Liberty is the most precious of all the human

rights. It has been the founding faith of the human race for years. The

Universal Declaration of Human Rights adopted by the General Assembly of

the United Nations on December 10, 1948, contains several articles

designed to protect and promote the liberty of individual. Article 21 of the

Constitution of India proclaims that no one shall be deprived of his liberty

except in accordance with the procedure prescribed by law. On the othe

hand, maintenance of peace and law& order in the society is also of great

importance. Unless there is peace, no real progress is possible. Societal

peace lends stability and security to the polity. Just as liberty is precious to

an individual, so is the society interested in peace and maintenance of law

and order in the society. Both are equally important. Whether it is for

securing the liberty of an individual or for maintaining the peace and law &

order in the society, law is essential.

The Concept of Arrest:

The term “Arrest” is very common term that we pick up a lot in our

day today life. Normally, we see a person, who do or have done something

against the law, get arrested. Arrest means apprehension of a person by

legal authority so as to cause deprivation of his liberty. Thus, after arrest, a

1 Hon'ble Supreme Court observed in the case of Indira Gandhi V. Rajnarayana(AIR 1975 SC 2299)
2 Art.21 of Indian Constitution.

1
person's liberty is in control of the arrester. Arrest is an important tool for

bringing an accused before the court as well as to prevent a crime or

prevent a person suspected of doing crime from running away from the

law.

The word 'Arrest' is derived from the French word 'Arreter' meaning

'to stop or stay' and signifies a restraint of the person has not been defined

in any statute. In the case Directorate of Enforcement Vs. Deepak

Mahajan3, Hon'ble Supreme Court, after referring various text books and

dictionaries, held that:

“The word 'arrest' when used in its ordinary and natural sense,

means the apprehension or restraint or the deprivation of one's personal

liberty. The question whether the person is under arrest or not, depends

not o the legality of the arrest, but on whether he has been deprived of his

personal liberty to go where he pleases. When used in the legal sense n

connection with criminal offences, an 'arrest' consists in the taking into

custody of another person under authority empowered by law, for the

purpose of holding or detaining him to answer a criminal charge or of

preventing the commission of a criminal offence. The essential elements to

constitute an arrest in the above sense are that there must be an intent to

arrest under the authority, accompanied by a seizure or detention of the

person in the manner known to law, which is so understood by the person

arrested.”

Arrest leads to deprivation of liberty and, therefore, has great

ramifications for the person arrested. Any denial of personal liberty has to

be through a due process. A process that is non-arbitrary, just, fair and

reasonable. No arrest shall be made, merely because it is lawful for the

police officers to do so and each arrest has to be justified on ground of its

imperative need and reasons are to be recorded in writing by the police

3 (AIR 1994 SC 1775; 1994 CR LJ 2269),

2
officer effecting the arrest.

Provisions relating to Arrest:

Constitution of India -

Article 21: “No person shall be deprived of his life or personal liberty

except according to procedure established by law.”

The mere prescription of some kind of procedure cannot even meet

the mandate of Article 21. The procedure prescribed by law has to be fair,

just and reasonable, not fanciful, oppressive or arbitrary. (maneka gandhi)

Article 22: The procedural safeguards against arbitrary arrest and

detention, provided in clause (1) and (2) of Article 22 are that no person

who is arrested shall be detained in custody without being informed, as

soon as may be of the grounds for such arrest. No such persons shall be

denied the right to consult, and to be defended by, a lawyer of his choice.

And, every person who is arrested and detained in custody shall be

produced before the nearest magistrate within a period of 24-hours of

arrest. The safe guards under Article 22 are not available to an enemy,

alien or a person arrested or detained under a law providing for preventive

detention.

Cr.P.C:-

Chapter V of the Code of Criminal Procedure, 1973 (Section 41 to 60 of

Cr.P.C) deals with the arrest of persons. According to this chapter, arrest

can be made by police officer, Magistrate or any private person, like you or

me can also arrest a person but that can made only in accordance with

some legal provision permitting such arrest. The code exempts the

members of Armed forces from being arrested for anything done by them

in discharge of their official duties except after obtaining the consent of the

government (Sec. 45).

Any private individual may arrest a person only when the person a

3
proclaimed offender and the person commits a non bailable offence and

cognizable offences in his presence (sec. 43). Any magistrate (whether

Executive or judicial) may arrest a person without a warrant (sec. 44).

Broadly speaking, arrest may be classified into two categories namely, (I)

Arrest under warrants issued by a court; and (ii) Arrests without warrants

issued by a court.

Supreme Court on Law of Arrest:

Hon'ble Apex court, in Jogindar Kumar V/s State of U.P4 issued some

guidelines to be followed by the police at the time of arrest of the person.

Again in D.K.Basu V State of West Bengal5 laid down some guidelines as

follows:

 The police personnel carrying out the arrest and handling the

interrogation of the arrestee should bear accurate, visible and clear

identification and name togs with their designations. The particulars

of all such police personnel who handle interrogation of the arrestee

must be recorded in a register.

 That the police officer carrying out the arrest of the arrestee shall

prepare a memo of arrest at the time of arrest a such memo shall be

attested by at least one witness who may be either a member of the

family of the arrestee or a respectable person of the locality from

where the arrest is made. It shall also be counter signed by the

arrestee and shall contain the time and date of arrest.

 A person who has been arrested or detained and is being held in

custody in a police station or interro. The police personnel carrying

out the arrest and handling the interrogation of the arrestee should

bear accurate, visible and clear identification and name togs with

their designations. The particulars of all such police personnel who

4 (1994) Part-4 SC 260

4
 handle interrogation of thegation centre or other lock-up, shall be

entitled to have one friend or relative or other person known to him

or having interest in his welfare being informed, as soon as

practicable, that he has been arrested and is being detained at the

particular place, unless the attesting witness of the memo of arrest is

himself such a friend or a relative of the arrestee.

 The time, place of arrest and venue of custody of an arrestee must be

notified by the police where the next friend or relative of the arrestee

lives outside the district or town through the legal Aid Organisation in

the District and the police station of the area concerned

telegraphically within a period of 8 to 12 hours after the arrest.

 The person arrested must be made aware of this right to have

someone informed of his arrest or detention as soon he is put under

arrest or is detained.

 An entry must be made in the diary at the place of detention

regarding the arrest of the person which shall also disclose the name

of the next friend of the person who has been informed of the arrest

and the names and particulars of the police officials in whose custody

the arrestee is.

 The arrestee should, where he so requests, be also examined at the

time of his arrest and major and minor injuries, if any present on

his/her body, must be recorded at that time. The "Inspection Memo"

must be signed both by the arrestee and the police officer effecting

the arrest and its copy provided to the arrestee.

 The arrestee should be subjected to medical examination by trained

doctor every 48 hours during his detention in custody by a doctor on

the panel of approved doctors appointed by Director, Health Services

of the concerned Stare or Union Territory. Director, Health Services

5
 should prepare such a penal for all Tehsils and Districts as well.

 Copies of all the documents including the memo of arrest, referred to

above, should be sent to the illaga Magistrate for his record.

 The arrestee may be permitted to meet his lawyer during

interrogation, though not throughout the interrogation.

 A police control room should be provided at all district and state

headquarters, where information regarding the arrest and the place

of custody of the arrestee shall be communicated by the officer

causing the arrest, within 12 hours of effecting the arrest and at the

police control room it should be displayed on a conspicuous notice

board.

In the recent case of Arnesh Kumar Vs. State of Bihar & anr.6 the

Hon'ble Supreme Court has issued following directions:

1) All the State Governments to instruct its police officers not to

automatically arrest when a case under Section 498-A of the I.P.C is

registered but to satisfy themselves about the necessity for arrest under

the parameters laid down above flowing from Section 41,Cr.P.C.

(2) All police officers be provided with a check list containing specified sub-

clauses under S. 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the

reasons and materials which necessitated the arrest, while

forwarding/producing the accused before the Magistrate for further

detention;

(4) The Magistrate while authorising detention of the accused shall peruse

the report furnished by the police officer in terms aforesaid and only

after recording its satisfaction, the Magistrate will authorise detention;

(5) The decision not to arrest an accused, be forwarded to the Magistrate

within two weeks from the date of the institution of the case with a copy

6 AIR 2014 S C 2756

6
 to the Magistrate which may be extended by the Superintendent of

police of the district for the reasons to be recorded in writing;

(6) Notice of appearance in terms of Section 41A of Cr.P.C. be served on

the accused within two weeks from the date of institution of the case,

which may be extended by the Superintendent of Police of the District

for the reasons to be recorded in writing;

(7) Failure to comply with the directions aforesaid shall apart from

rendering the police officers concerned liable for departmental action,

they shall also be liable to be punished for contempt of court to be

instituted before High Court having territorial jurisdiction.

(8) Authorising detention without recording reasons as aforesaid by the

judicial Magistrate concerned shall be liable for departmental action by

the appropriate High Court.

The Hon'ble Apex court further held that “the directions aforesaid

shall not only apply to the cases under Section 498-A of the I.P.C or S. 4 of

the Dowry Prohibition Act, the case in hand, but also such cases where

offence is punishable with imprisonment for a term which may be less than

seven years or which may extend to seven years; whether with or without

fine. We direct that a copy of this judgment be forwarded to the Chief

Secretaries as also the Director Generals of Police of all the State

Governments and the Union Territories and the Registrar General of all the

High Courts for onward transmission and ensuring its compliance”.

Recently (3 June 2016), in the case of Dr.Rini Johar and another V

State of M.P and others 7 our Hon'ble Apex court ordered compensation

to the victims for violation of provisions by the police. The Hon'ble Apex

court in this case referred Arnesh Kumar judgment (supra) and reiterated

that Section 41-A Cr.PC makes it clear that where the arrest of a person is

7 AIR 2016 SC 2679

7
not required under Section 41(1) Cr.PC the police officer is required to issue

notice directing the accused to appear before him at a specified place and

time. Law obliges such an accused to appear before the police officer and it

further mandates that if such an accused complies with the terms of notice

he shall not be arrested, unless for reasons to be recorded, the police

officer is of the opinion that the arrest is necessary.

Pre-Trial Detention:

Pre-trial detention is the process of keeping a person who has been

arrested in custody before conviction. Pre-trail detention refers to detaining

of an accused person in a criminal case before the trial as taken place,

either because of failure to post bail or detained under preventive detention

statute. An under trial, or a pre-trial detainee denotes an un-convicted

prisoner i.e. one who has been detained in prison during the period of

investigation, inquiry or trial for the offence she/he is accused to have

committed. Almost every third prisoner (32 %) around the world is

awaiting trial or the conclusion of trial.

When the under trial prisoners are detained in jail custody to an indefinite

period, Article 21 of the Constitution is violated. Every person, detained or

arrested, is entitled to speedy trial. (Sanjay Chandra vs CBI )8

Arrest and Pre Trial Detention – Role of Magistrate

Criminal Justice reflects the responses of the society to crimes and

criminals. The key components engaged in this role are the courts, police,

prosecution, and defence. Administering criminal justice satisfactorily in a

democratic society governed by rule of law and guaranteed

fundamental rights is a challenging task. It is in this context that the

subordinate judiciary assumes great importance. The role of magistrate is

effectively summed up in the words of Former Chief Justice Ranganath

Mishra in a writ petition relating to conditions of subordinate

8 (2012) 1 SCC 40;

8
judiciary in the case of All India Judges’ Association v. Union of

India9, where he observes:

“The Trial judge is the kingpin in the hierarchical system of

administration of justice. He directly comes in contact with the litigant

during the proceedings in court. On him lies the responsibility of building up

of the case appropriately and on his understanding of the matter the cause

of justice is first answered. The personalities, knowledge, judicial restraint,

capacity to maintain dignity are the additional aspects which go into

making the Court’s functioning successful”.

Magisterial check on police powers of arrest

The sufficiency of reasons for arrest recorded by the police officer is

to be examined by magistrates and not to be accepted at the mere ipse

dixit of the police. After examining the validity of the arrest, Magistrate has

to enquire that whether there are grounds to keep the accused in detention

or whether he can be released on bail, or otherwise discharged.

Case diary is an effective instrument for the magistrate to keep a tab

on the propriety of an investigation. The Supreme Court has repeatedly

reiterated that the case diary should be maintained with scrupulous

completeness and efficiency, since it is an extremely important document.

When a person arrested is produced before a magistrate for remand, the

magistrate has to: peruse and scrutinise copies of FIR/Case Diary ‘Zimnis’,

which ought to be in the form of a volume, duly paginated and contain

statements of the witnesses recorded u/s 161 of the Cr.P.C, and also to

ensure that the same are in chronology and reflect the progress of

investigation.

Section 167(2) of the Cr.P.C authorises the Judicial Magistrate to send

an accused to police custody for 15 days if the police investigation cannot

be completed within the mandated 24hoursand if the magistrate is satisfied

9 (1992) 1 SCC 119

9
with the legality of the arrest. Beyond this, if the magistrate ‘is satisfied

that adequate grounds exist’, they may authorise a further judicial custody

up to a 60 or 90 days based on whether the alleged offence is punishable

with a sentence of less than, or more than, 10 years. On the expiry of this

period, the accused is entitled to be released on bail provided they can

‘furnish bail’.

Remand to Police Custody

Detention in police custody (permissible only within 15 days of the

first remand), is usually disfavoured by law, which guards personal liberty

zealously. Courts are cognisant of the police’s predilection for disclosure

statements & confessions (often extorted), instead of scientific and

objective methods of investigation. Therefore, at the time of giving police

remand, the magistrate ought to ensure and record the imperative need for

police custody, and as to why it is necessary for an effective investigation.

The need for discovery of the weapon of the offence, fruits of crime,

unearthing a larger conspiracy and facilitating the arrest of co-accused by

disclosure are important considerations.

If the arrest seems unwarranted in the facts of the case, the

magistrate can always disallow both judicial and police custody and release

the person on bail (on surety or personal bonds), or even by way of a

special order u/s 59 of the CrPC.

In Mohammad Ajmal Kasab @ Abu Mujahid V State of

Maharashtra10 our Hon'ble Apex court held that during first production the

Magistrate is under duty and obligation to make the accused full aware

about his right to consult and to defend by a legal practitioner and in case

he has no means to engage counsel of his choice that would be provided to

him from legal aid at the expenses of the State and any failure on the part

of the court it amounts dereliction of duty and the concerned Magistrate is

10 AIR 2012 SC 3565

10
held liable to departmental proceedings.

BAIL:

Bail in bailable offence (S. 436):

In bailable offences bail is a right and not a favour. In such offences

there is no question of any discretion in granting bail. Bail can be claimed

as of right and there is a statutory duty imposed upon the Police Officer as

well as the Court to release a person on bail if he is prepared to give bail.

Such a person can also be released on his own bond in a fit case. It is only

where the accused is unable to furnish bail then he should be kept in

detention.

The Hon'ble Supreme Court in a case11 held that:

“As soon as it appears that the accused person is prepared to give bail, the

police officer or the court before whom he offers to give bail, is bound to

release him on such terms as to bail as may appear to the officer or the

court to be reasonable. It would even be open to the officer or the court to

discharge such person on his executing a bond as provided in the Section

instead of taking bail from him. The position of persons accused of non-bail

able offence is entirely different. The right to claim bail granted by Section

436 of the Code in a bail able offence is an absolute and indefeasible right.

In bail able offences there is no question of discretion in granting bail as

the words of Section 436 are imperative. The only choice available to the

officer or the court is as between taking a simple recognizance of the

accused and demanding security with surety. The persons contemplated by

Section 436 cannot be taken into custody unless they are unable or willing

to offer bail or to execute personal bonds”

The Apex Court further held that there is no manner of doubt that

bail in a bailable offence can be claimed by accused as of right and the

officer or the court, as the case may be, is bound to release the accused on

11 Rasiklal V/s Kishore Khanchand Wadhwani (AIR 2009 1341)

11
bail if he is willing to abide by reasonable conditions which may be imposed

on him.

If a person is a indigent and is unable to furnish the surety instead of

taking bail from such person discharge him on his executing a bond without

sureties. As per explanation when a person is unable to give bail within a

week of date of his arrest it shall be sufficient ground for the court to

presume that he is an indigent person12.

Bail u/s 436-A:

There had been instances where under trial prisoners were detained

in jail for periods beyond the maximum period of imprisonment provided

for the alleged offence. A new section 436A13 is inserted in the Code to

provide that where an under trial prisoner other than the offence for which

death has been prescribed as one of the punishments, has been under

detention for a period extending to one half of the maximum period of

imprisonment provided for the alleged offence, he should be released on

his personal bond, with or without sureties. It is also provided that in no

case the under trial be detained beyond the maximum period of

imprisonment for which he can be convicted for the alleged offence.

Hon'ble Supreme Court laid down certain guidelines relating to under

trial prisoners, as follows:

 Jurisdictional Magistrate/Chief Judicial Magistrates/Sessions Judge

shall hold one sitting in a week in each jail/prison for two months

commencing from 1st October, 2014 for the purposes of effective

implementation of Section 436-A of the Code of Criminal Procedure.

 In its sitting in jail, the above judicial officers shall identify the

under-trial prisoners who have completed half period of the

12 Explanation added to section 436 of Cr.P.C

12
 maximum period or maximum period of imprisonment provided for

the said offence under the law and

 After complying with the procedure prescribed under Section 436-A

pas an appropriate order in jail itself for release of such under-trial

prisoners who fulfil the requirement of Section 436-A for their

release immediately.

 Such jurisdictional Magistrate/Chief Judicial Magistrate/ Sessions

Judge shall submit he report of each of such sitting to the Registrar

General of the High Court and

 At the end of two months, the Registrar General of each High Court

shall submit he report o the Secretary General of this Court without

any delay.

The Hon'ble Apex court further direct the jail Superintendent of each

jail/prison to provide all necessary facilities for holding the court sitting by

the above judicial officers. A Copy of this Order shall be sent o the Registrar

General of each High Court, who in turn will communicate the copy of the

order to al Sessions Judges within his State for necessary compliance.”

Again In Re : Inhuman Conditions In 1382 Prisons14, the Apex

Court reiterate the enforcement of Section 436A by holding that “It is clear

that in spite of several orders passed by this Court from time to time in

various petitions, for one reason or another, the issue of overcrowding in

jails continues to persist and apart from anything else, appears to have

persuaded Justice R.C Lahoti to address a letter of the Chief Justice of India

on this specific issue of overcrowding in prisons.

Further, The Hon'ble Apex Court issued certain guidlines as follows

1. The Under Trial Review Committee in every district should meet every

quarter and the first such meeting should take place on or before 31st

14 AIR 2016 SC 993

13
 March, 2016. The Secretary of the District Legal Services Committee

should attend each meeting of the Under Trial Review Committee and

follow up the discussions with appropriate steps for the release of under

trial prisoners and convicts who have undergone their sentence or are

entitled to release because of remission granted to them.

2. The Under Trial Review Committee should specifically look into aspects

pertaining to effective implementation of Section 436 of the Cr.P.C and

Section 436A of the Cr.P.C so that under trial prisoners are released at

the earliest and those who cannot furnish bail bonds due to their poverty

are not subjected to incarceration only for that reason. The Under Trial

Review Committee will also look into issue of implementation of the

Probation of offenders Act particularly with regard to first time offenders

so that they have a chance of being restored and rehabilitated in society.

3. The Member Secretary of the State Legal Services Authority of every

State will ensure, in coordination with the Secretary of the District Legal

Services Committee in every district, that an adequate number of

competent lawyers are empanelled to assist under trial prisoners and

convicts, particularly the poor and indigent, and that legal aid for the

poor does not become poor legal aid.

4. The Secretary of the District Legal Services Committee will also look into

the issue of the release of under trial prisoners in compoundable

offences, the effort being to effectively explore the possibility of

compounding offences rather than requiring a trial to take place.

5. The Director General of Police/Inspector General of Police in-charge of

prisons should ensure that there is proper and effective utilization of

available funds so that the living conditions of the prisoners is

commensurate with human dignity. This also includes the issue of their

health, hygiene, food, clothing, rehabilitation etc.

14
6. The Ministry of Home Affairs will ensure that the Management

Information System is in place at the earliest in all the Central and

District Jails as well as jails for women so that there is better and

effective management of the prison and prisoners.

7. The Ministry of Home Affairs will conduct an annual review of the

implementation of the Model Prison Manual 2016 for which considerable

efforts have been made not only by senior officers of the Ministry of

Home Affairs but also persons from civil society. The Model Prison

Manual 2016 should not be reduced to yet another document that might

be reviewed only decades later, if at all. The annual review will also take

into consideration the need, if any, of making changes therein.

8. The Under Trial Review Committee will also look into the issues raised in

the Model Prison Manual 2016 including regular jail visits as suggested

in the said Manual.

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Bail in nonbailable offence (S. 437) :

Section 437 of the Code of Criminal Procedure gives the Court other

than the High Court or Court of Session power to release accused on bail in

a non-bailable cases, except where there appear reasonable grounds that

the accused has been guilty of an offence punishable with death or with

imprisonment for life. But a person under the age of sixteen years; a

woman; or a sick or infirm person may be released on bail even if the

offence charged is punishable with death or imprisonment for life.

In Gurcharan Singh v. State (Delhi Admn.)15, this Court took the

view:

"In other non-bailable cases the Court will exercise its judicial

discretion in favour of granting bail subject to sub- s. (3) of S. 43 Cr.P.C if it

deems necessary to act under it. Unless exceptional circumstances are

brought to the notice of the Court which may defeat proper investigation

and a fair trial, the Court will not decline to grant bail to a person who is

not accused of an offence punishable with death or imprisonment for life. It

is also clear that when an accused is brought before the Court of a

Magistrate with the allegation against him of an offence punishable with

death or imprisonment for life, he has ordinarily no option in the matter but

to refuse bail subject, however, to the first proviso to S. 437(1) Cr.P.C and

in a case where the Magistrate entertains a reasonable belief on the

materials that the accused has not been guilty of such an offence. This will

however be an extraordinary occasion since there will be some materials at

the stage of initial arrest, for the accusation or for strong suspicion of

commission by the person of such an offence.”

15 (1978) 1 SCC 118

16
 In 2011, The Hon'ble apex court in Sanjay Chandra vs CBI )16

opined that:

The grant or refusal to grant bail lies within the discretion of the

Court. The grant or denial is regulated, to a large extent, by the facts and

circumstances of each particular case. But at the same time, right to bail is

not to be denied merely because of the sentiments of the community

against the accused. The primary purposes of bail in a criminal case are to

relieve the accused of imprisonment, to relieve the State of the burden of

keeping him, pending the trial, and at the same time, to keep the accused

constructively in the custody of the Court, whether before or after

conviction, to assure that he will submit to the jurisdiction of the Court and

be in attendance thereon whenever his presence is required.

Role of Magistrate – Criminal Rules of Pracice and circular orders,

1990

Chapter III of Criminal Rules of Practice and Circular Orders 1990

deals about Investigation (rule 24 to 35)

Rule 25 - Magistrate to insist on production of the accused and

copies of Documents:-

No order under Section 167 of the code for remand of the accused

should be made unless the accused is produced before the Magistrate and

he has been heard. Magistrates shall also insist on the production of copies

of the entries in the Case Diary, peruse and initial those documents before

passing orders and also indicate in the order, that the documents are

perused.

Rule 26 - Remand to police custody:

A Magistrate shall not grant remand to policy custody, unless he is

satisfied that there is good ground for doing so and shall not accept a

16 (2012) 1 SCC 40;

17
general statement made by the investigating or other Police Officer to the

effect that the accused may be able to give further information. In all

cases, where the Magistrate authorizes the detention of the accused in the

custody of the Police, he shall record his reasons for so doing.

Rule 27 - Order of remand by a Magistrate to be forwarded to

sessions Judge:- Whenever a Magistrate remands an accused person to

the custody of police under Section 167 of the Code, a copy of the order of

remand with the reasons recorded therefore, shall be forwarded within 24

hours to the Sessions Judge.

Rule 28 - Computing Period of Remand:-

In computing the period of fifteen days mentioned in Sub-section (2)

of Section 167, or the proviso to Sec. 309 of the code, both the day on

which the remand order was made and the day on which the accused is

ordered to be produced before the Court shall be included. The period of

detention as prescribed in the proviso to sub-section (2) of Section 167 of

the Code or any period of detention prescribed by any other Law shall be

computed from the date of actual production of the accused before the

Magistrate or the Judge, as the case may be shall be excluded.

Statutory bail:

Bail under section 167(2) of Cr. P.C. is popularly known as default

bail. The accused is entitled to be released on bail on account of default on

the part of the prosecution to file a charge sheet under section 173(2)

within the prescribed period of 60 days or 90 days. The period of 60 days

or 90 days commences from the date on which the accused is remanded

and not from the date of arrest.

In the case of Union of India V Nirala Yadav17 our Hon'ble Apex

court held that Magistrate should decide the application for statutory bail on

the same day it is filed.

17 AIR 2014 SC 3036

18
Conclusion:

It is apparent that ample powers are vested in the magistrate to

check arbitrary arrests, police excesses & to facilitate a more incisive probe

into the discovery of truth, at various stages of an investigation, and even

after filing of the police report. The Trial judge is the kingpin in the

hierarchical system of administration of justice. He directly comes in

contact with the litigant during the proceedings in court.

“A judge ought to be wise enough to know that he is fallible and

therefore, ever ready to learn and be courageous enough to

acknowledge his errors”.

19