There is only one provision in the Code of Criminal Procedure, 1973 under which a Magistrate himself can arrest an accused. That provision is contained in Section 44 of the Code of Criminal Procedure, 1973.

Any Magistrate, whether Judicial or Executive, may himself arrest or order any person to arrest the offender, who has committed an offence in presence of such Magistrate within his local jurisdiction. He may also issue a warrant of arrest of such offender. A Magistrate arresting a person under Section 44 (1) of the Code of Criminal Procedure, 1973 is not a 'Court'. Therefore, the detention of the arrested person beyond 24 hours would be illegal unless a remand order to custody is obtained under Section 167 (1) of Code of Criminal Procedure, 1973 by producing him before another Magistrate.

Magistrate Under Section 44 of the Code of Criminal Procedure, 1973 a Judicial / Executive Magistrate either himself arrest or ask any other person to arrest anyone committing any offence in his presence.

Under Section 44 (2) of the Code of Criminal Procedure, 1973 also he can arrest a person for whose arrest he is competent to issue a warrant.

44. Arrest by Magistrate:

1. When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.
2. Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.
   

Scope and Ambit
Section 44 is the only section in the Code of Criminal Procedure, 1973 which authorizes a Magistrate to arrest a person. This section consists of two sub-sections. Under sub-section (1) a Magistrate can arrest a person if any offence is committed in his presence. Under sub-section (2) he can arrest a person for whose arrest he is competent to issue a warrant.

Under Section 44 Cr. P. C apart from the Police, Magistrate is given power to arrest a person and when an accused appears before the Magistrate or surrenders voluntarily, Magistrate is competent to take that accused into custody.

In arresting a person under Section 44 a Magistrate does not take cognizance of the case. The provision neither deals with taking of cognizance nor with conducting of inquiry or trial after taking of cognizance. Directorate of Enforcement Vs Deepak Mahajan, AIR 1994 SC 1775.
In sub-section (1) of Section 44 Cr. P. C, the offence for which the arrest is to be made, must have been committed in presence of the Magistrate, who intends to arrest such person, however, under sub-section (2), the Magistrate is empowered to arrest or to direct, arrest any person at any time, present at the time of such arrest or direction to arrest. In other words for applicability of sub-section (2) of Section 44 Cr. P. C the person to be arrested should be physically present before the Magistrate and such Magistrate must be competent at the time and in the circumstances to issue warrant of arrest.

Distinction between the provisions of sub-section (1) & sub-section (2) of Section 44 Cr. P. C

There is a marked distinction between the provisions of sub-section (1) and sub-section (2) of Section 44 Cr. P. C. Under sub-section (1) of Code of Criminal Procedure, 1973 the Magistrate has been given power to arrest a person who has committed an offence in his presence and also to commit him to custody, while under sub-section (2) of Section 44 Cr. P. C the Magistrate has full power to arrest a person suspected of having committed an offence but has not been given any power to commit him to custody.

The omission of the power to commit the offender to custody is not accidental but deliberate. Under Section 65 of the Old Code equivalent to Section 44 (2) Cr. P. C of the New Code also, the Magistrate was not given any power to commit the offender to custody. That being so, it cannot be said that the omission to give power to the Magistrate to give the offender to custody was just accidental. If it would have been an accidental mistake that mistake would not have been carried forward in the New Code.

Allahabad High Court in Ram Chandra Vs State of Uttar Pradesh, 1977 Cri. L. J 1783 while giving reasons as to why Under Section 44 (1) the Magistrate has been given power to commit the offender to custody, and not Under Section 44 (2), is not far to seek, held as under:
12. The reason why Under Section 44(1) the Magistrate has been given power to commit the offender to custody, and not Under Section 44 (2), is not far to seek. Under Section 44 (1) the offence is committed before the magistrate himself. He is sure about the guilt of the person committing the offence and, therefore, he has been given the power to commit him to custody.

Under Section 44 (2) the position is different; the offence has not been committed in his presence and he is not sure whether the person brought before him under arrest has really committed offence or not. It is obviously because of this reason that he has not been given the power to commit the offender to custody. He cart just arrest him or get him arrested and possibly can even search his person to find out whether he is possessed of any incriminating article or not. Beyond this he is not permitted to do anything else.

On the face of it, the framers of the Code never intended to give that power to the Magistrate.
Under Section 44 (1) of the Code of Criminal Procedure, 1973 the offence is committed before the magistrate himself. He is sure about the guilt of the person committing the offence and, therefore, he has been given the power to commit him to custody.

Under Section 44 (2) of the Code of Criminal Procedure, 1973 the position is different; the offence has not been committed in his presence and he is not sure whether the person brought before him under arrest has really committed offence or not.

It is obviously because of this reason that he has not been given the power to commit the offender to custody. He cannot just arrest him or get him arrested and possibly can even search his person to find out whether he is possessed of any incriminating article or not. Beyond this he is not permitted to do anything else.

Under Section 44 (2) of the Code of Criminal Procedure, 1973 the legislature has deliberately taken away the power of the Magistrate to commit the offender to custody.
The provisions of Section 44 (1) & 44 (2) of the Code of Criminal Procedure, 1973 were made for different situations and they cannot be said to be in conflict with each other. Therefore, under Section 44 (2) of the Code of Criminal Procedure, 1973 the Magistrate has no power to commit an offender to custody.

For applicability of sub-section (2) taking cognizance of the offence is not necessary

The words at any time used in sub-section (2) of Section 44 of the Code of Criminal Procedure, 1973 is very important. It indicates that the arrest or direction for arrest can be made even before taking cognizance of the case.

During the course of investigation of a cognizable offence, it is permissible for a Magistrate to issue a warrant of arrest. Since he could issue a warrant, therefore, sub-section (2) of Section 44 of the Code of Criminal Procedure, 1973 clearly authorizes him to arrest the person provided such person is present before him.{Ram Narain Singh Vs A. Sen, AIR 1958 Allahabad 758; R. R. Chari Vs State of Utter Pardesh, AIR 1951 SC 207 relied upon.}

Where an offence was committed was committed in the presence of S. D. M present at an assembly which is declared by him an unlawful assembly and ordered to disperse, he has right to order the arrest of the offender/s under Section 44 (Old Section 64) and it cannot be said that in doing so, he was taking cognizance of the offence under Section 190 (1)(c ) of the Code of Criminal Procedure, 1973. Taking cognizance of the offence by a Magistrate will come in only subsequently when complaint is filed. Mohan Choudry v/s State, 1965 (1) Cri. L. J 84.

Magistrate arresting a person cannot try such arrested person

It is one of the basic principles of Criminal Law that no one including a Magistrate can be a Judge of his own acts. Section 479 of Code of Criminal Procedure, 1973 recognizes this principle when a Magistrate while travelling arrests a person for committing a cognizable and non-bailable offence, in his presence, then such person shall be sent to some other Magistrate for trial.

Conclusions
There are various Sections in Chapter V of the Code of Criminal Procedure, 1973 titled Arrest of persons of which Sections 41, 42, 43 and 44 empower different authorities and even private persons to arrest a person in a given situation.

Thus the Code of Criminal Procedure, 1973 gives power of arrest not only to a Police Officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. There is a difference between arrest made under Section 41 and that under Section 44 of the Code of Criminal Procedure, 1973.

A Police Officer or a person empowered to arrest may arrest a person with intervention of the Court subject to the limitations specified under the provisions of the Code of Criminal Procedure, 1973. The provisions of Section 41 of the Code of Criminal Procedure, 1973 provide for arrest by a Police Officer without an order from a Magistrate and without a warrant.

A distinct and different power under Section 44 of the Code of Criminal Procedure, 1973 empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code of Criminal Procedure, 1973 that power is vested in the Court of the Magistrate when an offence is committed in his presence.

If the legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41 of Code of Criminal Procedure, 1973, a Police Officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggests that the Police Officer can arrest a person without an order from the Magistrate.

Written By: Damini Singh Chauhan, Semester 9th, The Law School, University of Jammu.
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