or may commit for trial,

or may send

accused to District in which the offence was committed,

together with depositions.

Magistrate of such District to deal with

the case as if originally commenced before him.

Peace officer

on delivery of prisoner to Magistrate

entitled to his

expenses.

consider that the evidence given is not sufficient to put the accused upon his trial he may dismiss the charge and if the accused is in custody order him to be released.

70. If he shall consider the evidence given to be sufficient to put the accused upon his trial he shall commit him for trial and otherwise deal with him as though the offence with which he is charged had been committed in the Presidency in which such Magistrate as aforesaid has jurisdiction.

71. If the Magistrate shall not consider the evidence to be sufficient to put the accused upon his trial but it shall be made to appear to the Magistrate that there is further evidence forthcoming in the District in which the offence charged is alleged to have been committed he shall bind over by recognisance the witnesses whom he has examined to give evidence before the Circuit Court for the Presidency in which the offence is alleged to have been committed and (unless he shall admit the accused to bail) shall by warrant order him to be taken before a Magistrate having jurisdiction in the District in which such offence is alleged to have been committed and shall at the same time deliver the information or complaint depositions and recognisances taken by him to the Peace officer who has the execution of such warrant as aforesaid to be by him delivered to the Magistrate, before whom he takes the accused in obedience to the warrant, and the depositions and recognisances shall be deemed to be taken in the case and be treated to all intents and purposes as if they had been taken by or before the last mentioned Magistrate.

72. The Magistrate before whom the accused appears in pursuance of his recognisances or is taken by warrant as in the last preceding section mentioned shall make further inquiry into the case and may deal with it as though it had been originally commenced before him and if he shall eventually discharge the accused then the recognisances taken by the Magistrate, first mentioned in the last preceding section, shall be void.

73. The Peace Officer conveying the accused under warrant as in section 71 mentioned shall on producing him together with all the documents relating to the charge as aforesaid

before the Magistrate, to whom the warrant aforesaid is directed, be entitled to be paid his costs and expenses of conveying the accused before such Magistrate. And the Magistrate upon being satisfied by the oath of such Peace officer that the signature on the warrant is that of the Magistrate subscribing the same shall furnish such Peace Magistrate to give Peace officer with a Certificate of his having received from him the body of the accused, together with the warrant and all certificate. documents relating to the charge, and of the Peace officer having duly given proof of the signature to the warrant as aforesaid.

74. The Peace officer on producing such Certificate to the proper officer in that behalf shall be entitled to be paid all his reasonable expenses of conveying the accused from the one Presidency to the other and of returning from the

same.

officer a

How Peace

officer is to

receive his

expenses.

and witnesses

at trial of

75. It shall be lawful for any Magistrate upon committing Prosecutor any accused person for trial to bind by recognisance (h) as to be bound hereinafter prescribed the prosecutor and all witnesses over to appear giving evidence to appear at the Circuit Court before which accused. the accused person is to be tried then and there to prosecute, or to prosecute and give evidence, or to give evidence, as the case may be. And the Magistrate shall except where in this Act it is otherwise provided cause the several recognisances so taken, together with the written information (if any) the depositions, the statement of the accused and the recognisances of bail (if any) to be forthwith delivered to All recognithe Registrar of the Presidency in which the preliminary positions, &c., inquiry has been held. Provided always that if any witness to be transshall refuse to enter into or acknowledge such recognisance Circuit Court. as aforesaid it shall be lawful for the Magistrate by his warrant to commit him to prison there to be safely kept until after the trial of such accused person as aforesaid unless in the meantime such witness shall duly enter into such recognisance before a Magistrate.

sances, de

mitted to the

When accused is to be conveyed before a Magistrate in

76. Where a Magistrate has bound over the witnesses whom he has examined as in section 71 mentioned and shall admit the accused to bail he shall bind him over by recognisance as hereinafter prescribed to appear before a Magistrate dency he may

(h) See Part x.

another Presi

be admitted to bail.

All depositions and re

be trans

mitted to the

having jurisdiction in the District in which the offence cognisances to charged is alleged to have been committed on such a day as he shall direct in such recognisances and shall forthwith cause the information or complaint, the depositions and all recognisances to be forthwith transmitted to the Magistrate having jurisdiction in such other Presidency as aforesaid.

Magistrate of

such other Presidency.

Accused on committal to

be committed to prison, unless bailed.

Peace officer to convey him to prison and deliver him to gaoler.

Gaoler to give

a receipt for the prisoner.

Magistrate

may not admit

to bail for certain felonies.

May admit to bail for misdemeanour and certain cases of felony.

77. When the Magistrate has committed the accused person for trial he shall, unless he shall admit such person to bail, as hereinafter provided, commit him by his warrant to the prison to which he may by law be committed, or in the case of an indictable offence committed out of the Colony, to the prison of the Presidency in which such warrant is issued, to be there safely kept until delivered in due course of law.

78. The peace officer or other person to whom any warrant of commitment is directed shall convey the accused person therein named or described to the prison therein mentioned and there deliver him together with the warrant to the keeper of such prison who shall thereupon give to such peace officer or other person as aforesaid a receipt for the prisoner setting forth the state and condition of the prisoner when delivered into his custody.

79. No Magistrate shall admit any person to bail who is charged with treason or felony punishable with death, or who is charged with any other felony where the evidence is such as in the opinion of the Magistrate to raise a strong presumption of guilt, except by order of a Judge of the Supreme Court. (i)

80. Where the Magistrate has committed any person for trial on a charge of misdemeanour or on a charge of felony where the evidence is not such as in the opinion of the Magistrate to raise a strong presumption of guilt, he may admit the accused to bail (j) as hereinafter provided.

See sect. 85.

(j) Bail. From the Norman-French bailler (to deliver), because a prisoner is delivered to his sureties, and is supposed to continue in their friendly custody instead of going to gaol.

If the sureties are subsequently afraid that the accused will run from his bail, they may reseize him (Horn v. Swinford, D. & R. N. P. C. 20), and bring him before a Magistrate, or obtain a warrant for his appreheusion at any time previous to the time he is bound to surrender, and so

bail at any

81. In cases mentioned in the last preceding section the Magistrate Magistrate at any time before the first day of the sitting of may admit to the Court at which the accused is to be tried, may admit time. him to bail as hereinafter provided or may certify on the back of the warrant of committal, the amount of bail to be required in which case any other Magistrate of the same Presidency may admit the accused to bail in such amount at any time before such first sitting of the Court as aforesaid.

When Magisadmit to bail

trate may

ment of hear

82. Where any person appears or is brought before a Magistrate charged with a misdemeanour or a felony other than treason or felony punishable with death, and it becomes on adjournnecessary to adjourn the inquiry and to remand the accused, or to complete the inquiry before a Magistrate in some other district, then in the case of a charge of misdemeanour as aforesaid and in the case of a charge of a felony as aforesaid where the Magistrate shall not consider the evidence given to be sufficient to put the accused upon his trial, or

discharge themselves. The Magistrate may then either commit him to gaol, or accept fresh sureties should they offer.

The amount of bail is fixed by the Magistrate. He should take into consideration the character of the charge, and the evidence, the position of the accused, the possible punishment, and all attending circumstances, in order to arrive at such a sum as will be reasonably sufficient to secure his appearance at the appointed time. It must not be so excessive as virtually to deprive him of the power of getting bail.

"To refuse or delay to bail any person bailable is an offence against the liberty of the subject, in any Magistrate, by the common law, as well as by the Statute of West. 1 (3 Edw. 1, c. 15) and the Habeas Corpus Act (31 Car. 2, c. 2). And lest the intention of the law should be frustrated by the justices requiring bail to a greater amount than the nature of the case demands, it is expressly declared by Stat. 1 W. & M., st. 2, c. 1, that excessive bail ought not to be required, though what bail shall be called excessive must be left to the Courts, on considering the circumstances of the case, to determine."-Blackstone, vol. iv. p. 297.

But it has been held that the duty of a Magistrate in admitting a prisoner to bail is a judicial duty, and that, therefore, an action will not lie against him for refusing to admit to bail a person entitled to bail, without proof of malice (R. v. Badger, 12 L. J. M. C. 66; Linford v. Fitzroy, 18 L. J. Q. B. 108).

A Magistrate is liable to a criminal information if he refuses bail without justification out of actual malice.

Under the present Act it is to be observed that the Magistrate has a discretion in all cases to admit to bail. (See ss. 80 and 81.)

Where the magistrate decides to take bail the only question is as to the sufficiency of the sureties. He may not inquire into their personal character or political opinions (R. v. Badger, 12 L. J. M. C. 66).

Warrant of deliverance.

Person bailed to enter into recognisances for his reappearance.

Judge may

order accused

to bail.

to raise a strong presumption of guilt, the Magistrate may admit the accused to bail as hereinafter prescribed until such time as the inquiry shall be resumed.

83. In all cases where the Magistrate admits to bail any person charged with the offence for which he is so admitted to bail he shall cause to be lodged with the keeper of the prison in which such accused person is detained a warrant of deliverance under bis hand and seal requiring such keeper to discharge the person so admitted to bail if he be not detained for any other offence, and upon such warrant being lodged with the keeper as aforesaid he shall forthwith obey the same.

84. Every accused person before being admitted to bail shall enter into recognisances as hereinafter prescribed either with or without a surety or sureties at the discretion of the Magistrate before whom they are taken conditioned for his appearance at the time and place mentioned in such recognisance.

85. In all cases of felony or suspicion of felony and in all to be admitted cases of misdemeanour where an accused person has been committed for trial as herein before provided or as provided by any Act in force in the Colony relating to the duties of Coroners any Judge of the Supreme Court may on application made to him for that purpose and on notice to the Attorney-General, or the Solicitor-General, or in their absence to the officer, if any, for the time being in charge of the Police in the Presidency order such accused person to be admitted to bail on entering into recognisances with sufficient sureties before a Magistrate in such amount as the Judge shall direct and thereupon the Magistrate shall issue a warrant of deliverance and shall attach thereto a copy of the order directing the admission of such person to bail. (k)

(k) This section is in substitution for the practice under which a writ of habeas corpus could be moved for, and the prisoner brought up before the Queen's Bench (here the Supreme Court), in order that the Court might bail him if it thought fit. According to the practice in the Queen's Bench, the writ was applied for on affidavit verifying the depositions, forty-eight hours' notice of the application was served on the prosecutor, who might appear, and oppose the application for bail, and file affidavits in answer.

Under this section the application is made on notice to the Crown