Magistrates have the power to arrest persons suspected of committing offenses but lack the authority to remand them to custody unless they have taken cognizance of the offense.

( 1 ) THIS is an application for bail Under Section 439 of the Cr. P. C. , filed by one Ram Chandra.

( 2 ) THE learned Counsel for the applicant has not argued this application for bail on merits. The main burden of his argument is that the detention of the applicant has all along been unlawful and as such he is entitled to bail.

( 3 ) THE applicant surrendered himself in the Court of a magistrate at Basti. The Magistrate took him into custody and sent him to jail. The contention of the learned Counsel for the applicant is that the custody of the applicant was not lawful at any stage and so he should be released on bail. In this connection he drew my attention to the ruling reported in Kedar v. State 1977 All WC 205 : 1977 Cri LJ 1230. In this case also the accused had surrendered in the Court of a magistrate and the Magistrate had remanded him to jail custody. It was held in that case that the order passed by the Magistrate remanding the accused to jail custody could not be an order Under Section 167 Cr. P. C. , because Section 167 Cr. P. C. applies only when a person is arrested and detained in custody by the police, and as such the order of the Magistrate remanding the accused to jail custody was illegal and not in accordance with law.

( 4 ) THE learned Counsel for the State assailed the correctness of the ratio laid down in Kedars case. 1977 Cri LJ 1230 (All) (supra) and contended that even though the applicant had surrendered in the Court of the Magistrate, the Magistrate had full power to arrest him and to remand him to jail custody.

( 5 ) IN the circumstances, therefore, the first question that calls for answer is whether or not the Magistrate was legally competent to arrest the applicant.

( 6 ) THE learned Counsel for the applicant contended that there is only one provision in the Code of Criminal Procedure 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 (1) a magistrate can arrest a person if any offence is committed in his presence. Under Section 44 (2) also he can arrest a person for whose arrest he is competent to issue a warrant. But for Section 44 there is no other provision in the Code under which a magistrate himself can arrest an offender. It is averred that such being the position of law the Magistrate had no power to arrest the applicant and remand him to jail custody when he surrendered himself before him.

( 7 ) IT is true that but for Section 44 there is no other provision in the Code of Criminal Procedure authorizing a magistrate to arrest a person who has committed an offence in his presence or a person suspected of having committed an offence Still I do not think that anybody can dispute that the Magistrate has no power to arrest a (person suspected of having committed an offence. In L. Ramnarain Singh v. A. Sen a Division Bench of our High Court has observed that it will be anomalous that a police officer should have the power to arrest a person reasonably suspected of having committed a cognizable offence but the Magistrate should have no such power. The learned Judges considered Section 54 of the old Code and came to the conclusion that a magistrate has also power to arrest a person suspected of having committed an offence. In Velu Vishwanathan v. State 1971 Cri LJ 725 (Ker) a Division Bench of Kerala High Court has also taken the same view. Therefore, as it is, it is clear that a magistrate has got full power to arrest a person suspected of having committed an offence. In the instant case, therefore, the Magistrate was legally competent to arrest the applicant when he surrendered before him. And if he was competent to arrest him, then, according to the learned, counsel for the State, he can also by implication remand him to custody.

( 8 ) THE learned Counsel for the applicant contended that even if it be taken that the Magistrate has power to arrest a person suspected of having commit