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.
Under Section 44 of Cr.P.C 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) also he can arrest a person for whose arrest he is competent to issue a warrant.
# Arrest by Magistrate
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. [S. 44 (1)]
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. [S. 44 (2)]
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.
It also does not deal with a process which would be required to be issued upon or after taking of cognizance of the case.
Also, the Magistrate has no power to arrest a person suspected of having committed an offence.
Under this section a magistrate has power to get a person arrested in certain circumstances but he has no power to commit him to custody.
On the face of it, the framers of the Code never intended to give that power to the Magistrate.
Section 44 consists of two els. (1) and (2), In Sub-clause (I), the Magistrate has been given power to commit a person after he has been arrested to custody.
In Sub-clause (2) the power to commit the offender to custody is not there.
The omission of the power to commit the offender to custody is not accidental but deliberate.
See Also : Ram Chandra v. State of Uttar Pradesh, 1977 CriLJ 1783 [Allahabad High Court]
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.
Under Section 44(2) the legislature has deliberately taken away the power of the Magistrate to commit the offender to custody.
The provisions of Section 44(1) and 44(2)were made for different situations and they cannot be said to be in conflict with each other. Therefore, under Section 44(2) the Magistrate has no power to commit an offender to custody.