What is the scope of this power and what is the manner, and method of exercise of this power?

What is the scope of this power and what is the manner, and method of exercise of this power?

STATE OF GUJARAT

VS.

KARAMSI NAYABHAI PATEL

  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 central of controversy in this case.
  2. The fact remains that an application for anticipatory bail was filed and the same was Thereafter the opponent-accused submitted an application dated September 2, 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 investigation in the case against the opponent-accused, the learned Magistrate as par his order dated September 2, 1985, directed that the opponent-accused be taken into judicial custody.

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 Section 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 even 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 real question in controversy in this case. The question which has arisen and which is required to be decided by the court in this case is not with regard to the power of the Magistrate to take an accused into judicial custody when the accused surrenders himself before the court, but the question is has the learned Magistrate exercised his power properly and in accordance with law when he directed the opponent-accused to take into judicial custody.

  1. As far as the question of power of the Magistrate to take an accused into custody is concerned, the existence of this power cannot be denied. Section 44(2) of the Code reads as follows:

It would be clear that the only limitation on the power conferred upon the Magistrate is that he should be competent at the time to issue a warrant for arrest and the accused should be in his local jurisdiction. 

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