-Secs. 81-83.

is by writ of subpæna instead of venire; and if the defendant does not appear on this, a Capias is awarded. (1 Chit. C. L. 865.) Supposing it be necessary, however, to proceed to outlawry, the first process is venire facias, as in the case of outlawry upon an indictment for a misdemeanour and not by subpoena. (id 866, see also Steph. Com. vol. IV, p. 769. to 777.)

Power

82. Neither the High Courts nor any Judge of such of High High Courts shall issue any writ of habeas Courts as to issue of corpus, mainprise, de homine replegiando, nor any other writ of the like nature

writs.

beyond the Presidency towns.

With reference to Section 81 and 82, Mr. Stephens, in introducing the Report of the Select Committees on the C. C. P. Bill for approval said: "I must just notice the provisions of Section 81 and 82 on the subject. of the writ of habeas corpus. The matter is at present in the greatest confusion, as any one may see for himself by reading the arguments on subject which took place in the case of the Wahábí convict Amír Khán. I will not detain the Council with a legal argument; but I think it is exceedingly doubtful whether the writ of habeas corpus would issue, as matters now stand, to bring up a European unlawfully detained in custody in the Mofussil, and I think it pretty clear that it would not lie to bring up a Native unlawfully detained by a Native in the Mofussil. Into the minor ramifications of the subject, I need not enter. The Sections in the Bill make the matter clear. An order equivalent to a writ of habeas corpus ad subjiciendum may be issued in respect of European British subjects throughout the whole of India. The writ of habeas corpus itself will continue to be issued, as at present, in the Presidency towns, but nowhere else.

"It must not be supposed that personal liberty is at all unprotected in the Mofussil. Wrongful restraint (which is very widely defined) is an offence against the Penal Code. And a person subjected to wrongful restraint can always procure his release by presenting a petition to any Magistrate for a summons or warrant against the person who wrongfully restrains him, and by procuring himself to be summoned as a witness. These remarks exhaust all I have to say on the general part of the Bill. 83. When any person claims to be dealt with as a Procedure on claim European British subject, he shall state the subject to be dealt grounds of such claim to the Magistrate before whom he is brought for the purposes of the inquiry or trial; and such Magis

of European British

with as such.

CHAP. VII.
Secs. 83-86..

CODE OF CRIMINAL PROCEDURE.

513

trate shall on such statement decide whether he is or is not a European British subject, and shall deal with him accordingly; and if any such person is dissatisfied with such decision, the burden of proving that it was wrong shall be upon him. If the Magistrate decide that the accused person is not a European British subject, the trial shall proceed, but such decision shall form a ground of appeal.

Failure to plead status a waiver.

84. If a European British subject does not claim to be dealt with as such before the Magistrate, before whom he is tried or committed, he shall be held to have waived his privilege

as such European British subject.

If the Magistrate has reason to believe that any person brought before him is a European British subject, it his duty to ask him whether he is one or not.

Trial of person not a

European British subject under this chapter.

valid.

Courts.

85. If a person, who is not a European British subject, is dealt with as such and does not object, the proceedings shall be

86. All High Courts shall deal with proceedings against Procedure of High European British subjects outside of the Presidency towns in the manner in which they are empowered by this Act or by any other law in force for the time being to deal with the proceedings of Magistrates outside the Presidency towns; and not according to the law of England relating to the dealings of the superior Courts in England with the proceedings of Justices of the Peace in England.

The High Courts shall have the same powers with respect to the inquiries and charges against European British subjects as Courts of Session have with respect to inquiries and charges against other persons.

Proceedings against European British sub

jects to be regulated by this Act.

Secs. 87-89.

87. All Magistrates and Courts of Session, proceeding against European British subjects under this chapter, shall proceed under the provisions of this Act and not according to the law of England relating to Justices of the Peace; and all the provisions of this Act, not inconsistent with the provisions of this chapter, shall apply to such proceedings.

88. European British subjects sentenced to imprisonPlace of confine- ment shall be confined in such places as the Local Government may either specially or generally appoint.

ment.

PART III.

OF THE POLICE.

CHAPTER VIII.

OFFENCES OF WHICH INFORMATION MUST BE GIVEN TO POLICE, AND DUTY OF THE PUBLIC.

offences.

89. Every person aware of the commission of any All persons to give offence made punishable under Sections information of certain 121, 121A, 122, 123, 124, 124A, 125, 126, 130, 302, 303, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 456, 457, 458, 459 or 460 of the Indian Penal Code, shall in the absence of reasonable excuse, the burthen of proving which shall lie upon such person, give information of the same to the nearest Police Officer or Magistrate.

This chapter deals with the earliest stage of criminal proceeding-that which is left in the hands of the Police. The power of asking questions

CHAP. VIII.
Secs. 89-90.

CODE OF CRIMINAL PROCEDURE.

515

and requiring answers in the collection of evidence by the Police has been extended, and the manner and form in which the present Act is drawn up makes the distinction between the Magistrate's functions and the functions of the Police far more clear than did the original C. C. P. With reference to the several Police Acts for the different Presidencies, Mr. Stephens remarked "that there may be some degree of awkwardness, in leaving the organisation of the Force to be provided for by Act V of 1861, and other corresponding Acts which apply to different provinces, and in prescribing the most important of their powers and duties in this Act. No doubt the Code would be more complete if it contained the Police Acts; but there are two difficulties in the way which have prevented this arrangement. The first is, that the subject of Police organisation is just one of those with which the local legislatures ought to deal. The second is, that very great differences of opinion exist on the subject, with which we are not in a position to deal in reference to the present Bill."

The provisions of this section have been extended by the addition of certain sections of the Penal Code having been inserted. The section referred to in this Section 89 chiefly bind the public. For special obligations binding owner and occupier of land see Section 154, P. C., and Section 90 post.

Landholders

certain matters.

and

90. Every Village Headman, Village Watchman, owner or occupier of land, or the agent of any others bound to report such owner or occupier, and every Native officer employed in the collection of revenue or rent of land on the part of the Government or the Court of Wards, is bound forthwith to communicate to the nearest Magistrate, or to the officer in charge of the nearest Police - station, any information which he may obtain respecting:

(a.) The residence of any notorious receiver or vendor of stolen property at the village of which he is headman. or watchman, or in which he owns or occupies land, or collects rent or revenue, as the case may be;

(b.) The resort to any place within the limits of such village of any person or persons known or reasonably suspected of being a thug or robber;

Secs. 90-92.

(c.) The commission or intention to commit suttee or other non-bailable offence at or near such village;

(d.) The occurrence of any sudden or unnatural death.

91. Every person is bound to assist a Magistrate or All persons to assist Police officer demanding his aid in the prevention of a breach of the peace,

Magistrate and Police in certain cases.

Or in the suppression of a riot or an affray,

Or in the taking of any other person whom such Magistrate or Police officer is authorized to arrest.

Is bound to assist.-Intentional omission to give assistance is punishable under Section 187, I. P. C.

CHAPTER IX.

OF ARREST WITHOUT WARRANT.

92. A Police Officer may, without orders from a When Police may Magistrate and

arrest without warrant. arrest:

without

a warrant,

Firstly. Any person who in the sight of such Police Officer commits a cognizable offence.

Secondly. Any person against whom a reasonable complaint has been made or a reasonable suspicion exists of his having been concerned in any such offence.

Thirdly. Any person against whom a hue and cry has been raised of his having been concerned in any such offence.

Fourthly.-Any person who has been proclaimed either under this Act, or in a District or Police Gazette, or notification.