Section 44 CrPC: Arrest by Magistrate

Chapter V

Arrest by Magistrate, Arrest warrant, Bail provisions, Direct arrest, Executive Magistrate powers, Judicial Magistrate powers, local jurisdiction, Offence in presence of Magistrate, Order of arrest

New Law Update (2024)

Section 48 BNSS

TRIAL COURT

Punishment

Procedural – Warrant / Summons Process

Cognizable?

Bailable?

Compoundable?

Bare Act Text

(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.

Important Sub-Sections Explained

Section 44(1)

This sub-section empowers any Magistrate (Executive or Judicial) to directly arrest or order another person to arrest an offender if an offence is committed right in their presence and within their local area. After the arrest, the Magistrate can commit the offender to custody, subject to bail provisions.

Section 44(2)

This sub-section expands the Magistrate’s power, allowing them to arrest or direct the arrest, in their presence and within their local jurisdiction, of any person for whom they could legally issue an arrest warrant under those circumstances. This means the power isn’t limited to offences committed then and there, but to any person for whom a warrant could be issued.

Landmark Judgements

Udayan P. v. State of Kerala (2012):

This Kerala High Court judgment clarified the scope of Section 44 CrPC, emphasizing that the Magistrate’s power to arrest or direct arrest under sub-section (1) applies when an offence is committed ‘in his presence’. It also distinguished this from the power under sub-section (2), which relates to situations where the Magistrate is competent to issue a warrant, and the arrest still has to be ‘in his presence’.

S.D. Jain v. The State (1973):

The Delhi High Court in this case reiterated the direct power of a Magistrate to arrest or order the arrest of an offender for an offence committed in their immediate presence and within their local jurisdiction, highlighting the immediate and personal nature of this power.

Chapter V