( 1 ) TO arrest an accused person is not an ordinary function of a Magistrate. Then why and in what manner he should exercise this power of arresting an accused person is the real question at the centre of controversy in this case.

( 2 ) IT is an admitted position that a complaint dated 8/07/1985 has been lodged with Nalia Police Station (District Bhuj) against the opponent-accused and other four persons. It is alleged in the complaint that the opponent-accused assisted Pakistani nationals in going back to Pakistan illegally by sea-route. Some of the accused are absconding. The offence alleged against the opponent-accused and others is under the provisions of Passport (Entry into India) Rules 1980 and under the provisions of Foreigners Act and Foreigners (Restriction of Pakistani Nationals) Order 1971 and also under the Criminal Law Amendment Act. The Police was in search of the opponent-accused. The opponent knew about this fact. The opponent-accused and two other persons filed an application in this HIgh Court for grant of anticipatory bail under the provisions of sec. 438 of the Criminal Procedure Code (The Code for short ). that application was withdrawn by the opponent- accused and others (It is the contention of the learned Public Prosecutor that the application was withdrawn as it was about to be rejected by the Court. Be that as it may. The fact remains that an application for anticipatory bail was filed and the same was withdrawn ). Thereafter the opponent-accused submitted an application dated 2/09/1985 before the learned J. M. F. C. Nalia at Lakhpat praying that he was surrendering himself before him and that he be taken into judicial custody and be released on bail. It is also an admitted position that without affording an opportunity of being heard or without even ascertaining as to what was the position of investi- gation in the case against the opponent-accused the learned Magistrate as per his order dated 2/09/1985 directed that the opponent accused be taken into judicial custody. The State of Gujarat felt aggrieved by the aforesaid order passed by the learned Magistrate and therefore preferred Criminal Revision Application No. 45 of 1985 in the Court of Sessions Judge at Bhuj. The learned Additional Sessions Judge who heard the revision application rejected the same by his order dated 6/09/1985 Against these orders the State of Gujarat has filed the present application by invoking the provisions of sec. 482 of the Code and has challenged the legality and validity of the orders passed by the lower courts.

( 3 ) RELYING upon the principles laid down by the Supreme Court in the case of Niranjan Singh v. Prabhakar A. I. R. 1980 S. C. 785 the learned counsel appearing on behalf of the opponent-accused has submitted that whenever an accused appears before the court and submits himself to the directions of the court he should be deemed to have been under the custody of the court. In his submission when a person surrenders himself before the court the Magistrate gets jurisdiction to pass an order releasing the accused on bail. This submission is sought to be negatived by the learned Public Prosecutor. According to him the provisions of sec. 167 of the Code would be applicable to the facts and circumstances of the case and there cannot be any appearance by the accused before the court unless he is arrested by the police and produce before the court under the provisions of sec. 167 of the Code.

( 4 ) BOTH the sides have submitted elaborate arguments and have cited several authorities which deal with the correct meaning of the words arrested detained and appears occurring in sec. 167 and 437 of the Code. On behalf of the opponent-accused it is submitted that the learned Magistrate has power to take an accused into custody ever when the accused is sought to be detained or even when suspected of being arrested or detained by the police. However to my mind both the sides have not addressed themselves to the