An arrest based on mere suspicion does not warrant judicial custody unless there is evidence of a cognizable or non-bailable offence.

ORDER

The interesting question which arises for consideration in this revision is as to whether a person who is arrested by a police officer without a warrant under Section 41 (1) (d) Cr.P.C. on the reasonable suspicion that such person is in possession of stolen property or is reasonably suspected of having committed an offence with reference to such property, when produced before the Magistrate without anything more, is liable to be remanded to judicial custody ?

2. The revision petitioner is the accused in Crime No.

317 of 2007 of Nallalam Police Station. The said crime was registered at the instance of the Sub Inspector of Police, Nallalam. The Sub Inspector is said to have inspected the godown of the accused at Kolathara in Cheruvannur amsom on 31-10-2007 at 12.15 p.m. and is alleged to have found 300 kgms of alluminium wire. Suspecting that the alluminium wire belonged to and was used for drawing overhead lines by the Kerala State Electricity Board, the Sub Inspector seized the alluminium wire under the reasonable belief that it was stolen property. The revision petitioner was also arrested and was produced before the J.F.C.M.I, Kozhikode on 31-10-2007 itself along with a remand report and the mahazar under which the alluminium wires were seized. The Sub Inspector also produced before the Magistrate the F.I.R. in Crime No. 317 of

2007 registered under Sec. 41(1)(d) read with Sec. 102 Cr.P.C.

3. On 31-10-2007 itself the learned Magistrate remanded the revision petitioner to judicial custody authorising his detention in the Sub Jail, Kozhikode for a period of 14 days by invoking the power under Section 167 (2) Cr.P.C. An application for bail filed by the revision petitioner as C.M.P. No. 4764 of 2007 was dismissed by the Magistrate on 2-11-2007 on the ground that it was too early to accept the photocopy of the bill dated 28-10-2007 produced by the accused showing that the alluminium wires were purchased by him under a valid bill and on the further ground that according to the police the revision petitioner was found in possession of the alluminium wires which were reasonably believed to be stolen property. It is at this stage that the revision petitioner approached this Court with this revision challenging the order remanding him to judicial custody and the consequential order rejecting his bail application.

4. While the arrest of the revision petitioner by the Sub Inspector on the reasonable belief that the alluminium wires found in the godown of the revision petitioner were stolen property, could be justified under Sec. 41 (1) (d) Cr.P.C., I see absolutely no justification on the part of the Sub Inspector in registering a crime or seeking detention of the revision petitioner in judicial custody since the commission of a cognizable offence entitling the police officer to investigate under Sec. 156 Cr.P.C. was neither alleged nor made out . It is admitted that even as on today the Sub Inspector has not filed any report before the Magistrate to the effect that the revision petitioner had either committed theft of the alluminium wires in question or that he was a receiver of stolen property. When there was no allegation before the Magistrate to the effect that the revision petitioner had committed a cognizable or non- bailable offence, neither the police could forward the revision petitioner to the nearest Magistrate seeking authorisation for detention of the revision petitioner in police or judicial custody, nor could the Magistrate remand the revision petitioner to police or judicial custody. The question of ordering detention under Section 167 Cr.P.C. will arise only if there is an investigation for which the alleged commission of an offence is a necessary pre-requisite. The position would have been different if the revision petitioner was produced before the Magistrate along with a further report to the effect that after the arrest of the revision petitioner on the requisite suspicion under Sec. 41 (1)(d) Cr.P.C. it was