Chapter VI
Section 81 CrPC: Procedure by Magistrate before whom such person arrested is brought
New Law Update (2024)
Section 85 BNSS
TRIAL COURT
Punishment
Procedural – Warrant / Summons Process
Cognizable?
Bailable?
Compoundable?
Bare Act Text
(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.
Important Sub-Sections Explained
Section 81(1)
This sub-section outlines the primary procedure when a person arrested under a warrant is brought before a Magistrate or police officer. It mandates that if the person matches the warrant, they must be sent in custody to the issuing Court, unless the offence is bailable, in which case bail can be granted. Importantly, for non-bailable offences, the Chief Judicial Magistrate or Sessions Judge in the district of arrest has the special power to grant bail, subject to Section 437 CrPC.
Landmark Judgements
Kalyani v. The State, 1999 CriLJ 242 (Madras High Court):
This ruling clarifies that the power conferred upon the Chief Judicial Magistrate or Sessions Judge under the second proviso to Section 81 CrPC is a significant discretion to grant bail for non-bailable offences, even when the warrant originates from another district. It emphasizes that this power is crucial to prevent undue hardship to the arrested person, ensuring that they are not compelled to travel long distances in custody without an opportunity for bail, especially when the case for bail might be strong.
Dr. B.R. Jain v. The State of Madhya Pradesh, 1989 Cr.L.J. 1533 (Madhya Pradesh High Court):
This judgment reinforces the discretionary power of the Chief Judicial Magistrate or Sessions Judge in the district of arrest to grant bail in non-bailable cases, as provided by the second proviso to Section 81 CrPC. The Court highlighted that this power is to be exercised judiciously, keeping in view the provisions of Section 437 CrPC, and aims to balance the interest of justice with the personal liberty of the individual, particularly in cases involving warrants issued from outside the local jurisdiction.