Section 44 CRPC

 SECTION 44 CRPC

By P.Hema

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.

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.

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.

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.

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.